YLR 2017 Judgments - Pakistan Legal Archive

Courts in this Volume

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

Federal Shariat Court

YLR 2017 FEDERAL SHARIAT COURT 775 #

2017 Y L R 775

[Federal Shariat Court]

Before Riaz Ahmad Khan, C.J. and Mrs. Ashraf Jahan, J

SUHBAT KHAN---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeals No.4/I, Criminal Appeals Nos.06/I and 07/I of 2016, decided on 17th November, 2016.

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

----Ss. 302(b), 201, 392 & 411---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Qatl-i-amd, causing disappearance of evidence of offence or giving false information to screen offender, robbery, dishonestly receiving stolen property, haraabah---Appreciation of evidence---Occurrence was an unseen incident---No direct evidence of the alleged incident was available, except circumstantial evidence---Incident being un-witnessed, strong and consistent circumstantial evidence was required to prove the guilt of accused persons, which element was lacking in the case---Narration of facts as put forward in alleged confession, when placed in juxta position with other evidence, mainly with medical evidence, did not portray a real or truthful story---No post-mortem of the dead body having been conducted, it could not be safely concluded that death was caused due to strangulation---Retracted confession, not finding support from the medical evidence, could not be made basis for conviction of accused---Medical evidence, was not supportive, cause of death as per medical examination report, was not known---Evidence, in respect of alleged recovery against accused, had become doubtful and was of no help to the prosecution---Information with regard to incident was given after lapse of 27 days, without any explanation for such delay---Accused allegedly had been nominated on receiving spy information, but no name or source of spy information was disclosed---One of the accused persons was acquitted by the Trial Court on same set of evidence, whereas another accused initially nominated as accused was discharged under S.169, Cr.P.C. and finally his name was arrayed in the list of witnesses---Prosecution having failed to prove the charge against accused persons beyond shadow of reasonable doubt, judgment passed by the Trial Court was set aside, accused persons were directed to be released forthwith, in circumstances.

Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; Qaiser Ali v. The State 2016 YLR 1903 and Mohabbat v. The State 1990 PCr.LJ 73 rel.

State through the Advocate General N.W.F.P. Peshawar v. Shahjehan PLD 2003 SC 70 and Muhammad Mukhtiar alias Moju v. The State 2010 PCr.LJ 1750 ref.

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

----S. 164---Retracted confession---Retracted confessional statements of accused, would do little to advance the case of prosecution, if same did not fulfil the legal threshold in the touchstone of being a genuine, truthful and voluntary.

Muhammad Abrar v. The State and another 2014 YLR 537 ref.

----Circumstantial evidence---Where the case was based upon circumstantial evidence only, guiding factor for appreciation of such evidence was that no link in the chain should be missing and all the circumstances must lead to the guilt of accused.

Ali Khan v. The State 1999 SCMR 955 and MD. Nazir Hussain Sarkar and another's case 1969 SCMR 388 ref.

Muhammad Sharif Janjua for Appellant (in J. Cr. A. No.04/I of 2016).

Muhammad Raziq Khan and Aziz Muhammad for Appellants (in Cr. A. No.06/I of 2016).

Raja Shahzad Javed for Appellant (in Cr. A. No.07/I/2016).

Arshad Ahmad Assistant Advocate General KPK for the State.

Complainant in person.

YLR 2017 FEDERAL SHARIAT COURT 840 #

2017 Y L R 840

[Federal Shariat Court]

Before Riaz Ahmad Khan, C.J. and Mrs. Ashraf Jahan, J

ATTIQ-UR-REHMAN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.104-I of 2010, decided on 2nd December, 2016.

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

----S. 17(4)---Haraabah---Appreciation of evidence---Star witness of the prosecution, who was daughter-in-law of the deceased and complainant, in her evidence had clearly deposed in her evidence that one of the accused along with two co-accused had committed the murder; whom she had later on identified at the time of identification parade---Evidence on all material points had gone unshaken in cross-examination---Availability of accused persons at the time of incident in the house of complainant causing murder of the deceased and recovery of weapons used in crime, had neither been disputed nor challenged by the defence counsel during cross-examination---Star witness had no enmity, personal grudge or motive against accused persons to implicate them maliciously---FIR had been lodged promptly---Enmity of accused persons with the complainant party, prior to the incident, was neither alleged nor proved by the defence---No material discrepancy or contradiction in the prosecution evidence or any misreading or non-reading of the evidence was found by the Trial Court---Evidence brought on record by the prosecution, was confidence inspiring and sufficient to prove the charge against accused persons---Callous murder had been committed and the ocular and circumstantial evidence, had connected accused persons with the commission of crime---Appeal being without substance, was dismissed in circumstances.

Muhammad Amjad v. State PLD 2003 SC 704; Zakir Khan v. State 1995 SCMR 1793; Elahi Bakhsh v. State 2005 SCMR 810 and Ghulam Nabi v. The State 2007 SCMR 808 ref.

Ms. Nasreen Zafar for Appellants.

Ali Haider, Assistant Prosecutor General Sindh for the State.

YLR 2017 FEDERAL SHARIAT COURT 2218 #

2017 Y L R 2218

[Federal Shariat Court]

Before Zahoor Ahmed Shahwani and Mrs. Ashraf Jahan, JJ

2017 Y L R 153

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

BABAR AHMAD---Petitioner

Versus

The STATE---Respondent

Cr. Misc. 36 of 2016, decided on 24th March, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 392, 337-D, 337-F & 34---Qanun-e-Shahadat (10 of 1984), Art. 164---Robbery, jaifah, ghayr-jaifah and common intention---Accused was absconding---Bail, refusal of---Accused and co-accused entered in the jewelry shop duly clad in black burqa impersonating them as lady customers---Accused stabbed the sales man and after injuring him looted the ornaments and fled away---Robbed ornaments had been recovered on the pointation of accused---Accused remained absconder---Absconder would lose some of his statutory rights granted by procedural as well as substantive law---Abscondence should be considered negatively by the court until and unless same was not deliberate and beyond the capacity of accused---Evidence collected through modern devices was admissible as a valid piece of evidence---Prima facie case had been made out against the accused---Case in hand was one of the heinous nature cases and could be termed as an "offence against the society"---Grant of bail was discretion but when a case affected the society then discretion was always exercised with caution and restraint---Accused was not entitled for concession of bail---Bail was refused in circumstances.

Burhan Wali for Petitioner.

Malik Sher Baz, Dy.A.G. for the State.

Muhammad Saleem for the Complainant.

YLR 2017 Gilgit Baltistan Chief Court 215 #

2017 Y L R 215

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

ABDUL KHALIQ---Petitioner

Versus

The STATE---Respondent

Cr. Misc. No.167 of 2015, decided on 12th January, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 34 & 311---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, Tazir after waiver or compounding of right of Qisas in qatl-i-amd---Bail, refusal of---Sufficient prima facie evidence was available showing involvement of accused in the occurrence---Occurrence was one of honour killing; and the Trial Court had rightly observed that S.311, P.P.C., was attracted to the case, until otherwise proved in the trial---Bail petition merited dismissal, in circumstances.

Sher Alam for Petitioner.

Deputy Advocate General for State.

2017 Y L R 664

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

The STATE---Petitioner

Versus

ABDUL HADI and another---Respondents

Cr. Misc. No.57 of 2016, decided on 26th May, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Petition for cancellation of bail---Names of accused persons, though found mentioned in the FIR, but the Police had not disclosed any source, as to who informed him about the identity of accused persons---No reason had been shown as to why eye-witness kept mum for a long seven days and no explanation was available on record to justify such an inordinate delay---Inordinate delay in recording statement of a witness, whose name even did not figure in FIR, was a factor, benefit of which would go to accused, even at bail stage---Evidentiary value of identification parade, would be adjudged by the Trial Court after recording of evidence---No identification parade was held for the injured witness, who was a passerby and was an independent and impartial witness---Said eye-witness in his court statement also did not identify accused persons---Such lapse on the part of prosecution, had brought the case within the purview of further inquiry---Once bail was granted by a court of competent jurisdiction, then very exceptional and strong grounds were required for cancellation of bail, but counsel for the complainant, could not point out any such ground---Bail granting order by a court of competent jurisdiction, could not be recalled only for the reasons that while deciding a bail application, the Trial Court had travelled beyond the limitation of "tentative" assessment---Accused persons, could not be penalized, just because of an act of the court, if some other grounds, other than those mentioned in bail granting order were available bringing a case under S.497(2), Cr.P.C.---Petition for cancellation of bail was declined, in circumstances.

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

Amjad Hussain for the Complainant.

Raja Zia-ur-Rahman for Respondents.

YLR 2017 Gilgit Baltistan Chief Court 722 #

2017 Y L R 722

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Yar Muhammad, JJ

SHAHID SAEED MALIK---Petitioner

Versus

KHADIM HUSSAIN and 2 others---Respondents

Writ Petition No.63 of 2015, decided on 3rd March, 2016.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Gilgit-Baltistan (Empower-ment and Self-Governance) Order, 2009, Art.71(2)---Superdary of vehicle---Vehicle in question, having been stolen, owner of said vehicle lodged report of theft at Police Station concerned and FIR was chalked against respondent---Vehicle in question was found in possession of the petitioner, Police took vehicle in their possession---Application by respondent for custody of vehicle, was dismissed, revision against dismissal of his application, was allowed and vehicle was given to him through impugned order---Validity---Respondent could not show any document of his title of vehicle in question; he just contended that he had purchased the subject vehicle---Vehicle in question being stolen property, could not be handed over to the respondent who was either himself the person who committed theft of the said vehicle, purchaser of the same, and the person who sold the subject vehicle to him, could be the thief himself; or any other person who had purchased the theft property---Petitioner, had prima facie, better title to the subject vehicle---Impugned order, was set aside with direction to Police for obtaining the vehicle from respondent and handing over to the petitioner obtaining bonds from the petitioner in the sum of Rs.10,00,000; whereby, petitioner would have to undertake to hand over the vehicle to the Police, as and when same was required for any legal proceeding.

Haji Daulat Karim for Petitioner.

Zafar Iqbal for Respondent No.1.

Deputy Advocate General for Respondents Nos. 2 and 3.

YLR 2017 Gilgit Baltistan Chief Court 863 #

2017 Y L R 863

[Gilgit-Baltistan Chief Court]

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

CHIEF SECRETARY/PROVINCIAL GOVERNMENT G.B. Gilgit and 3 others---Appellants

Versus

ABDUR RAZIQ---Respondent

C.F.A. No.15/2016, decided on 10th May, 2016.

Civil Procedure Code (V of 1908)---

----O. VIII, R. 10---Written statement, non-filing of---Defence, striking off---Scope---Defendant, government depart-ment, did not file written statement and its defence was struck off---Validity---Government was bound to protect State interest in the courts but despite repeated chances no written statement was filed---No action was taken against any of the officials concerned---Only sixty days had been provided to the Government for presenting written statement---Defendant had availed ten chances for filing of written statement till the impugned order was passed---Impugned order was correct and was upheld---Appeal was not admitted for regular hearing and was dismissed in circumstances.

YLR 2017 Gilgit Baltistan Chief Court 900 #

2017 Y L R 900

[Gilgit-Baltistan Chief Court]

Before Sahib Khan, C J and Muhammad Alam, J

MUHAMMAD AYUB---Appellant

Versus

Dr. SIKANDAR HAYAT---Respondent

C.F.A. No.3 of 2012, decided on 1st March, 2016.

Civil Procedure Code (V of 1908)---

----O. IX, R. 13---Ex parte decree, setting aside of---Limitation---Petition for setting aside of ex parte decree was filed after one and six months of passing the same---Applicant appeared in the execution proceedings of the decree but after about four months of his appearance present application had been filed---Applicant did not seem to be interested in the progress of case, petition for setting aside of ex parte decree being time barred was not allowed---Appeal was dismissed in circumstances.

Mir Akhlaque Hussain for Appellant.

Amjad Hussain for Respondent.

YLR 2017 Gilgit Baltistan Chief Court 936 #

2017 Y L R 936

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Yar Muhammad, JJ

SHAKEEL AHMED and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.24 of 2015, decided on 14th April, 2016.

Penal Code (XLV of 1860)---

----Ss. 376, 377, 363, 392, 506, 337-A & 34---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Rape, unnatural offence, kidnapping, robbery, criminal intimidation, causing Shajjah, common intention, act of terrorism---Appreciation of evidence---Jurisdiction of special court of terrorism---Transfer of case to ordinary criminal court---Forcible abduction with intention of committing rape---FIR, containing report of commission of forcible rape---Said offence being of ordinary nature, trial of the same by ordinary criminal court was sufficient and correct---Trial Court had convicted accused persons under S.7(e) of Anti-Terrorism Act, 1997 without framing any charge for the said offence, which was an irregularity---Trial Court must have sent the case to ordinary court when accused persons were charge-sheeted for trial---Conducting of trial by a Special Court, was against all norms of criminal administration of justice as ordinary courts were competent to try cases of ordinary nature---Impugned order of conviction/ sentence was set aside and chief court directed the transfer of charge-sheet/ challan of the case to the Court of Session Judge, who would complete all trial proceedings of accused persons after de novo trial of accused persons---Trial Court would have to expunge all sections of Anti-Terrorism Act, 1997.

2005 MLD 1096; 1999 YLR 1716; 2012 SCMR 517 and 2013 PCr.LJ 1720 ref.

Amjad Hussain for Appellants.

Deputy Advocate General for the State.

YLR 2017 Gilgit Baltistan Chief Court 969 #

2017 Y L R 969

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

PROVINCIAL GOVERNMENT through Chief Secretary G.B. and 5 others---Petitioners

Versus

FAQIR MOHAMMAD---Respondent

C. Rev. No.58 of 2015, decided on 5th May, 2016.

Land Acquisition Act (I of 1894)---

----S.18---Land acquisition---Reference--- Limitation--- Contention of plaintiff was that he was paid compensation of less land compared to what was acquired by the Government---Suit was decreed concurrently---Validity---Present suit was with regard to measurement of land and not for determination of title---Measurement of land was a question to be determined by the Referee Court---Plaintiff must have approached the said forum---Claim of plaintiff was for compensation amount for acquisition and limitation for the same was less than the period provided for a suit for declaration---Plaintiff had instituted suit just to avoid limitation provided for getting reference proceedings initiated---Present suit was not only incompetent but was also time barred---Plaintiff had only remedy to challenge the subject measurement of land before the Referee Court and nowhere else---Findings recorded by the courts below were result of mis-reading of evidence as well as ill-appreciation of relevant laws---Impugned judgments and decrees passed by both the courts below were set aside---Revision was allowed in circumstances.

Additional Advocate General for Petitioners.

Ali Khan for Respondent.

YLR 2017 Gilgit Baltistan Chief Court 1134 #

2017 Y L R 1134

[Gilgit-Baltistan Chief Court]

Before Sahib Khan, C.J. and Malik Haq Nawaz, J

GHULAM-UD-DIN---Petitioner

Versus

The STATE through ANF Gilgit---Respondent

Cr. Misc. No. 58 of 2016, decided on 23rd June, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing and trafficking narcotics---Bail, grant of---Further inquiry---Police official who lodged FIR in the case, was also investigator of the case---Propriety demanded that in a case where an FIR was lodged by a Police Official, he should avoid to conduct the investigation; as his investigation, howsoever fair, could be challenged by accused on the ground that a fair and impartial investigation had not been carried out; which had prejudiced the case---Accused who was below the age of 18 years, was in judicial lock-up since last 8 months without any substantial progress in the trial, was the first offender and there was no chance of his abscontion, or tampering with the case---Case of accused fell within the ambit of further inquiry---Bail, was allowed to accused, in circumstances.

PLD 1997 SC 408 ref.

Muhammad Saleem for Petitioner.

Manzoor Hussain Special Prosecutor for ANF.

YLR 2017 Gilgit Baltistan Chief Court 1232 #

2017 Y L R 1232

[Gilgit-Baltistan Chief Court]

Before Sahib Khan C.J. and Malik Haq Nawaz, J

ASSAD ULLAH---Petitioner

Versus

The STATE---Respondent

Cr. Misc. 54 of 2016, decided on 23rd June, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 34---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7, 19(7)(8), 21-D & 21-L---Qatl-i-amd, common intention, act of terrorism---Bail, grant of---No substantial progress had been made towards conclusion of the trial of the case, even after lapse of over 3 years---Speedy and fair trial was an inherent right of accused guaranteed by the Constitution, as well as by Part II of Gilgit-Baltistan (Self-Empowerment and Governance) Order, 2009---Liberty of a person, could not be curtailed, except in accordance with law---Accused was granted bail.

Muzafar-ud-Din for Petitioner.

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

YLR 2017 Gilgit Baltistan Chief Court 1282 #

2017 Y L R 1282

[Gilgit-Baltistan Chief Court]

Before Sahib Khan, C.J. and Malik Haq Nawaz, J

MUHAMMAD SHARIEF---Petitioner

Versus

STATE (ANF GILGIT)---Respondent

Cr. Misc. No.53 of 2016, decided on 23rd June, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.9(b)(c) & 25---Possessing and trafficking narcotics---Bail, grant of---Further inquiry---Accused was caught red-handed by Anti-Narcotic Force Officials---Contraband "charas" weighing 1030 grams, was recovered from personal search---Contention that provisions of S.103, Cr.P.C., were violated, did not hold the field---Provisions of S.103, Cr.P.C., were not attracted in the case of personal search and had specifically been excluded by S.25 of Control of Narcotic Substances Act, 1997---Quantity of "charas" recovered from accused marginally exceeded 1000 grams and it was a border line case of S.9(b) or S.9(c) of Control of Narcotic Substances Act, 1997, which attracted provisions of S.497(2), Cr.P.C.---Bail was allowed to accused, in circumstances.

Burhan Wali for Petitioner.

YLR 2017 Gilgit Baltistan Chief Court 1311 #

2017 Y L R 1311

[Gilgit-Baltistan Chief Court]

Before Sahib Khan, C.J. and Malik Haq Nawaz, J

MUHAMMAD SALEEM---Petitioner

Versus

The STATE (ANF Gilgit)---Respondent

Cr. Misc. No.93 of 2016, decided on 23rd June, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Possessing and trafficking narcotics---Bail, grant of---Offence against accused entailed only a punishment of seven years, which did not fall within the prohibitory clause of S.497, Cr.P.C.---Accused, was entitled for the grant of bail.

Musarat Wali Khan for Petitioner.

2017 Y L R 1955

[Gilgit-Baltistan Chief Court]

Before Mohammad Alam and Wazir Shakeel Ahmed, JJ

MUHAMMAD BILAL---Appellant

Versus

SALMAN SHAH---Respondent

C.F.A. No.35 of 2015, decided on 28th August, 2016.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 1 & 2---Civil Courts Ordinance (II of 1962), Ss. 21 & 22---Institution of suit on the basis of negotiable instrument--- Original jurisdiction---Scope---Suit was filed before the District Judge which was assigned to the Additional District Judge for disposal---Petition challenging the jurisdiction of Trial Court (assignee court) was moved which was dismissed by the said court---Validity---Order XXXVII, R. 1, C.P.C. was applicable only to the High Court and District Court and any civil court notified by the High Court and no provision existed for assigning of any matter falling under the purview of O.XXXVII, R. 1, C.P.C.---Only Additional District Judge or in his absence from the District the senior most Civil Judge at headquarter could assume the charge of District Judge without interruption of his original jurisdiction in the event of death of District Judge, or his being prevented from performing his duties by illness or other causes---District Judge, in the present case, had assigned the matter to the Additional District Judge against the mandate of O.XXXVII, Rr.1 & 2, C.P.C---Impugned order passed by the Trial Court was set aside---Chief Court directed that matter should be deemed to be pending before the District Judge who should adjudicate the same in accordance with law---Appeal was allowed accordingly.

Johar Ali Khan for Appellant.

YLR 2017 Gilgit Baltistan Chief Court 2191 #

2017 Y L R 2191

[Gilgit-Baltistan Chief Court]

Before Yar Muhammad, J

ALI HAIDER and 2 others---Petitioners

Versus

MURTAZA KHAN and 2 others---Respondents

C. Rev. 108 of 2014, decided on 18th April, 2016.

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

----O. IX, R. 13 & O. XVII, R. 5---Limitation Act (IX of 1908), S. 5 & Art. 164---Ex-parte decree, setting aside of---Limitation---Condonation of delay---Order by ministerial officer of the court---Effect---Suit was fixed for evidence of defendants but they absented themselves and ex parte decree was passed---Application for setting aside ex-parte decree was dismissed being time barred---Validity---Ministerial officer of the court, when Presiding Officer was on leave, could only handover duly signed slips of papers to the parties specifying other date fixed for proceedings---Ministerial officer could not pass order resulting in penal consequences---Court on the adjourned date would be competent to conduct the same proceedings as scheduled on the day when Presiding Officer was absent or in his dissension case was adjourned---Defendants and their witnesses remained absent on the date which was fixed by the ministerial officer of the court---Presiding Officer did not take the case directly to the penalizing side rather ex-parte proceedings were initiated and case was adjourned for arguments---Case was adjourned for two times from the date fixed by the ministerial officer but defendants did not appear leaving no room except to pass ex-parte decree---No illegal order was passed against the defendants---Defendants had absented from the proceedings and Art. 164 of Limitation Act, 1908 was attracted which had provided 30 days period to file application for setting aside ex-parte decree---Order resulting penal consequences could be set aside if such order was passed when case was not fixed for hearing and application for setting aside the said order was moved within time---Application for setting aside ex-parte decree had been moved after lapse of limitation---Period of limitation could be condoned provided the party succeeded to establish that each day of delay was due to some unavoidable reasons---Each and every day of delay must be proved by the party to take benefit of S. 5 of Limitation Act, 1908---No details in that regard had been furnished in the said application and supporting documents---Revision was dismissed in circumstances.

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

----S. 5---Delay, condonation of---Requirement---Period of limitation could be condoned provided a party succeeded to establish that each day of delay was due to some unavoidable reasons.

Muhammad Qasim Shehzad for Petitioners.

Akhtar Ali for Respondents.

YLR 2017 Gilgit Baltistan Chief Court 2227 #

2017 Y L R 2227

[Gilgit-Baltistan Chief Court]

Before Yar Muhammad, J

MOHAMMAD BETHAM---Petitioner

Versus

INAYAT and 2 others---Respondents

Civil. Rev. No.62 of 2014, decided on 26th April, 2016.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 27---Decision of two suits through single judgment---Appeal---Application for additional evidence---Decision of appeal without disposing of application---Effect---Trial Court decided two suits through single judgment without consolidating the same---Validity---Parties had produced evidence independently and separately in both the suits---Disposal of suits through single judgment was illegal in the eye of law without consolidating the same---When evidence had been recorded separately, suits could not be decided through single judgment---Appellate Court without adjudicating the application for production of additional evidence had decided the appeal---Appellate Court was bound to decide the application first and then take recourse to the merits of appeal---Appellate Court had failed to exercise its jurisdiction which had caused miscarriage of justice---Judgments and decrees passed by both the courts below were set aside and matter was remanded to the Trial Court for decision afresh within specified period.

Sherbaz Ali Khan for Petitioner.

Muhammad Umar Farooq for Respondents.

YLR 2017 Gilgit Baltistan Chief Court 2310 #

2017 Y L R 2310

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Malik Haq Nawaz, JJ

ABDUL WADOOD---Appellant

Versus

The STATE---Respondent

Cr. Appeal No.41 of 2012, decided on 5th December, 2016.

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

----Ss. 302---Arms Ordinance (XX of 1965), S. 13---Qatl-i-amd, possessing unlicensed weapon---Appreciation of evidence---Circumstantial evidence---Accused was not directly charged in the FIR for murdering the deceased---Contents of FIR showed that accused took the deceased to his house on the pretext of some urgent work; thereafter complainant party received information of death of deceased and found the dead body in the house of the accused---Complainant, in circumstances, had raised finger of suspicion on the accused---Prosecution witness recorded his statement under S. 164, Cr.P.C.----Accused did not opt either to engage a counsel or to cross-examine the said prosecution witness himself---Accused also recorded confessional statement under S. 164, Cr.P.C. which was not recorded in accordance with law as such, the same could not be considered as substantive piece of evidence---Accused had not discharged the burden regarding recovery of dead body from his house---Accused failed to explain the circumstances to dispel the onus which under the law, he was bound to do so---Circumstances established that there was abundant evidence on record which connected the accused with the commission of offence---Appeal against conviction was dismissed accordingly.

2007 SCMR 162; 2007 SCMR 670; 2009 SCMR 230; 2008 SCMR 6; 1993 SCMR 550; PLD 2008 Lah. 268; 2009 PCr.LJ 1119; 198(sic) SCMR 570; PLD 1971 Lah. 850; PLD 1978 SC 21; 2002 PCr.LJ 2021; 2010 SCMR 374, PLD 2002 SC 1048; 2009 PCr.LJ 1226; 2008 SCMR 1221; 2009 SCMR 120; 2010 PCr.LJ 1296; 2009 PCr.LJ 199; PLD 2002 SC 781; PLJ 2006 SC 2050 and PLD 2004 SC 343 ref.

(b) Criminal trial---

----Evidence--- Corroboration---Admissi-bility---Corroboration was a rule of prudence and not a rule of jurisprudence---If from the attending circumstances of a particular case, the mind of the court was satisfied that the accused had committed the offence and there was no previous enmity existed between the parties and they were closely related, no corroboration would be required for conviction of accused.

----Evidence--- Substantive evidence---Reliance---If court was satisfied that the substantive evidence was natural, reliable and trustworthy then supportive evidence would not be a legal requirement.

(d) Criminal trial---

----Confessional statement---Evidentiary value---Scope---Conviction could be based on confession alone, provided that it was true and voluntary in nature and had been made by the accused without any inducement or pressure and was genuine---However, if necessary precautions were not taken, then it would be highly dangerous to rely on such a confession.

1984 PCr.LJ 611 rel.

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

----S. 302---Arms Ordinance (XX of 1965), S. 13---Qatl-i-amd, possessing unlicensed weapon---Appreciation of evidence---Recovery of dead body---Corroborative evidence---Reliance---Recovery of dead body of the deceased from the house of the accused was a strong piece of corroboratory evidence which could not be lightly ignored---No suggestion had been put to any prosecution witness even to the Investigating Officer to extract anything in favour of accused---Appeal against conviction was dismissed.

Muzaffaruddin for Appellant.

Malik Sher Baz, Dy, A.G. for the State.

YLR 2017 Gilgit Baltistan Chief Court 2390 #

2017 Y L R 2390

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

MUSHRAF---Appellant

Versus

SHER GHAZI and 6 others---Respondents

Cr. Appeal No.14 of 2015, decided on 21st October, 2016.

Penal Code (XLV of 1860)---

----Ss. 324,337-F(ii), 337-A, 147 & 34---Attempt to commit qatl-i-amd, causing badi'ah, causing hurt, rioting and common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Aggressor and aggressed upon---Allegation against the accused was that he had injured the prosecution witness---Accused was named in the FIR---Weapons of offence were recovered from his possession---Application for the registration of cross case was filed, wherein the allegation of aggression and infliction of injuries were attributed to the complainant party---Injury sheets of accused party were available on record---Possibility could not be ruled out that accused had acted in self-defense and they had received injuries during the occurrence---Accused were referred to hospital on the day of occurrence and were given medical treatment---Circumstances had shown that complainant party had suppressed the injuries sustained by the other side in their FIR---Presumption, in such circumstances, would be that complainant party was the aggressor---Complainant party had suppressed their own role and tried to twist the facts and as such, they were bound to bear the consequences of their own deeds---Attending circumstances suggested doubts about the veracity of prosecution story, benefit of which resolved in favour of accused---Appeal against acquittal was dismissed accordingly.

Johar Ali for Appellant/ Complainant.

Arif Nazir for Respondents.

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

YLR 2017 Gilgit Baltistan Chief Court 2456 #

2017 Y L R 2456

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

HALIMA---Petitioner

Versus

SIFT KHAN and 3 others---Respondents

Cr. Misc. 114 of 2016, decided on 24th August, 2016.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Jurisdiction of High Court---Scope---Custody of minor---Right of hizanat---Minor sons, whose custody was sought by petitioner mother, were suckling babies of about two years and fifteen days respectively---Such minors required protection and care for twenty four hours and nobody, other than real mother could look after them---High Court under S.491, Cr.P.C., was clothed with extraordinary powers to issue directives in the nature of habeas corpus---Where minors were of tender age, and had been snatched from lawful custody of their mother, though the remedy was available under S. 25 of Guardians and Wards Act, 1890 but provision of S. 491, Cr.P.C., provided efficacious speedy and appropriate remedy---Section 491, Cr.P.C. protected right of a person, who had been kept under illegal or improper custody---Attending circumstances had suggested that restoration of custody of minors under S. 491, Cr.P.C., in circumstances, was necessarily required but as an interim measure---Question of custody, could be decided by the Guardian Judge---High Court directed father of minors to hand over minors to their mother---Petition was allowed accordingly.

1996 SCMR 268 and PLD 1995 SC 633 rel.

Johar Ali and Aurangzeb Qureshi for Petitioner.

Respondents Nos. 2 and 3 in person along with minors.

SHO Gudai present on Court order.

YLR 2017 Gilgit Baltistan Chief Court 2487 #

2017 Y L R 2487

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

The STATE and another---Petitioners

Versus

FAKHAR ALAM---Respondent

Cr. Misc. 88 of 2016, decided on 10th June, 2016.

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

----S. 498---Pre-arrest bail---Power and object---Power under S.498, Cr.P.C., though of extraordinary nature, but were exercised, where the court would find that liberty and honour of a respectable citizen had been put at stake, due to some ill design---In such circumstances, it would become bounden duty of the court to protect the citizen, who would approach the court---Refusal of bail before arrest in heinous offences, like murder, was a rule and grant was an exception; and a heavy duty was cast on accused seeking bail before arrest to bring his case within exceptions i.e. mala fide, humiliation and ulterior motive on the part of complainant/Police---Object of S.498, Cr.P.C., was to prevent innocent persons from being unnecessarily harassed by being arrested in cases started by some motivated person.

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

----Ss. 497(5) & 498---Penal Code (XLV of 1860), Ss.302, 458, 459, 506, 109 & 34---Qatl-i-amd, lurking house-trespass or house breaking by night, hurt caused whilst committing lurking house-trespass or house-breaking, criminal intimidation, abetment, common intention---Petition for cancellation of pre-arrest bail---Statements of prosecution witnesses recorded by the Investigating Officer, had revealed that all said statements were stereo-typed and parrot like statements and ditto copy of each other, charging accused and his co-accused for abetment---Co-accused was allowed bail before arrest by the same order, and with similar allegations of abetment as against accused, but cancellation of his bail had not been moved---Liberty of an accused could not be grudged on the assumption that his name found mentioned in the FIR---Mere mentioning of name of an accused in the FIR, was no ground for cancellation of bail before arrest, when no overt act had been attributed to him and when evidence to establish a prima facie case was lacking---Involvement of accused and his capability in crime would be adjudged by the Trial Court after recording of evidence---Trial Court, had exercised its discretion in a fair and transparent manner, which did not require indulgence by High Court---Petition for cancellation of bail, was dismissed, in circumstances.

Mir Muhammad, Addl.A.G. for the State.

Nazir Ahmad for the Complainant.

Assad Ullah Khan, Raja Shakeel Ahmad and Raha Zia-ur-Rahman for Respondent.

Rehmat Baig, Inspector in person along with record.

YLR 2017 Gilgit Baltistan Chief Court 2521 #

MUHAMMAD YASEEN---Appellant

Versus

DEEWAN ALI and another---Respondents

Civil Appeals Nos.102 and 104 of 2012, decided on 7th December, 2016.

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

----O. XX, R. 14---Decree in pre-emption suit---Non-deposit of sale consideration within time fixed by the Trial Court---Effect---Trial Court decreed the suit and directed the plaintiff to deposit the consideration amount along with other expenses within a period of one month otherwise suit would be deemed to have been dismissed---Appellate Court maintained the judgment of Trial Court and directed the pre-emptor to deposit the decretal amount as was calculated by the Trial Court within specified time---Contention of vendee was that pre-emptor had not deposited the decretal amount within stipulated period and suit stood dismissed by operation of law---Validity---Trial Court had directed the pre-emptor to deposit the consideration amount within one month---Time granted by the Trial Court expired on 30-01-2012 during which no appeal was filed nor extension of time was sought---Pre-emptor was negligent in pursuing his case and had not complied with the judgment of Trial Court---Last date for depositing of consideration amount was 30-01-2012 and pre-emptor was bound to file appeal before this date---Question of competence of appeal was legal point which could be raised and determined in second appeal---No application had been filed by the pre-emptor for condonation of delay---Suit stood dismissed on 30-01-2012 for not complying with the direction of the Trial Court---Filing of appeal on 06-02-2012 was of no use and suspension of judgment at that time was also of no helpful to the pre-emptor---Judgment and decree passed by the Appellate Court were set aside---Appeal was allowed in circumstances.

Maqsood Ahmed and others v. Member Board of Revenue Punjab, Lahore and others 2007 SCMR 399; Qasim Hussain Shah v. Muhammad Gulzar Khan PLD 1984 SC (AJ&K) 150; Muhammad Fazal v. Muhammad Shamoon and another 1994 SCR 185; Muhammad Amin v. Muhammad Hameed and 2 others 2001 MLD 525; Muhammad Yaqoob v. Muhammad Yousaf and 11 others 2013 SCR 12; Zia-ul-Haq v. Umer Hayat and 3 others 2013 SCR 165; Muhammad Saddique Khan v. Sardar Muhammad Kabir Khan and 5 others 2013 MLD 514; Mst. Ishrat Begum v. Mst. Gul Farosha and others 2003 YLR 724; Abid Hussain and others v. Khadim Hussain and others 2005 YLR 520; Sharimati Sundri Bai v. Ghulam Hussain 1982 CLC 2442 and Ghulam Murtaza v. Qalam Din and another PLD 1987 AJ&K 166 ref.

Muhammad Iqbal v. Anwaar Anwar and another 1997 MLD 631; Ghulam Haider (deceased) by his L.Rs and others v. Mst. Raj Bhari (dceased) by her L.Rs. and others PLD 1988 SC 20; Nazir Ahmed and another v. Abdullah 1999 SCMR 342; Said Muhammad Khan v. Muhammad Yousaf and 2 others 2007 SCR 235; Ghulam Rabani v. Muhammad Fiaz and another 2015 SCR 317; Elahi Bakhsh and others v. Ahmad Bakhsh and others 2012 MLD 1308; Ghulam Rasool v. Fazal Dad and another 1985 CLC 1129 and Zulfiqar and others v. Gulzar and others 2006 MLD 1054 distinguished.

(b) Estoppel---

----No estoppel could be pleaded against the provision of law.

Syed Tufail Hussain Bukhari for Appellants.

YLR 2017 HIGH COURT AZAD KASHMIR 865 #

2017 Y L R 865

[High Court (AJ&K)]

Before Azhar Saleem Babar and Muhammad Sheraz Kiani, JJ

REGIONAL MANAGER UTILITY STORES CORPORATION OF PAKISTAN---Appellant

Versus

MUNIR SULHERIA and another---Respondents

Civil Appeal No.3 of 2015, decided on 13th December, 2016.

Penal Code (XLV of 1860)---

----S.409---Criminal Procedure Code (V of 1898), S.417(2-A)---Criminal breach of trust by public servant---Appeal against acquittal---Appreciation of evidence---Accused was alleged to have embezzled certain amount, which was entrusted to him as incharge Utility Store---First Information Report showed that shortage/embezzlement of amount was found during audit, but the most important document of surprise audit was never brought on record---Investigating Officer, as prosecution witness had also stated that despite repeated demands, the complainant did not substantiate his claim with any audit document---Court below, in circumstances, had rightly acquitted accused of the charge under S.409, P.P.C. and order of acquittal was upheld by the High Court.

Syed Asim Masood Gillani for Appellant.

Muzaffar Hussain Mughal for Respondent No.1.

YLR 2017 HIGH COURT AZAD KASHMIR 952 #

2017 Y L R 952

[High Court (AJ&K)]

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

MUJAHID HUSSAIN NAQVI---Petitioner

Versus

ELECTION COMMISSION OF AZAD JAMMU AND KASHMIR through Chief Election Commissioner and 10 others---Respondents

Writ Petition No.2412 of 2016, decided on 6th October, 2016.

Azad Jammu and Kashmir President Election Rules, 1985---

----Rr. 5 & 7---Election for the seat of the President of Azad Jammu and Kashmir---Nomination papers of petitioner-candidate without proposer and seconder were unlawful and were rejected---Petitioner-candidate had to be present at the fixed time in the office of Chief Election Commissioner like the other candidates---Candidate was neither nominated nor proposed by any member of legislative assembly nor any elected member of Azad Jammu and Kashmir Council---Candidate moved writ petition for extension of time for filing of nomination papers which was rejected--- Validity--- Petitioner's application for postponement of election was contemptuous after the judgment of High Court refusing the extension of time---Election Commissioner had rightly refused the application of candidate---Candidate had failed to challenge the vires of judgment passed by the High Court in the writ petition which had attained finality---Writ petition was dismissed in limine.

Petitioner in person.

Kh. Muhammad Naseem for Respondents Nos. 1 to 3.

YLR 2017 HIGH COURT AZAD KASHMIR 1039 #

2017 Y L R 1039

[High Court (AJ&K)]

Before Mohammad Sheraz Kiani, J

MOHAMMAD ILYAS KHAN---Petitioner

Versus

MOHAMMAD HANIF and 12 others---Respondents

Revision Petition No.256 of 2015, decided on 10th January, 2017.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Temporary injunction, grant of---Scope---Trial Court dismissed the petition for grant of temporary injunction but Appellate Court granted temporary injunction---Validity---Defendant had possession of suit property---Presumption of correctness was attached to the registered sale-deed executed in favour of defendant---If stay order continued, defendant would suffer as balance of convenience did not lie in favour of plaintiff---Plaintiff would not suffer any irreparable loss in case of vacation of temporary injunction---Impugned order passed by the Appellate Court was set aside---Revision was allowed in circumstances.

2004 SCR 318 and 2000 YLR 2351 distinguished.

Ch. Mohammad Mushtaq for Petitioner.

Syed Shujahat Ali Gillani for Respondents Nos. 1 to 13.

YLR 2017 HIGH COURT AZAD KASHMIR 1595 #

2017 Y L R 1595

[High Court (AJ&K)]

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

MUHAMMAD MASOOD KHAN---Petitioner

Versus

CHIEF ELECTION COMMISSIONER, AZAD JAMMU AND KASHMIR through Secretary and 3 others---Respondents

Writ Petition No.2372 of 2016, decided on 13th March, 2017.

Azad Jammu and Kashmir Electoral Rolls Rules, 1970---

----Rr.6 to 11, 14, 16, 17 & 20---Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970, Ss. 10-A, 13-A & 15---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.44 & 5(4)---Writ petition---Preparation of voter's list---Petitioner had sought inclusion of name in the electoral rolls---Scope---Name of petitioner was not included in the electoral rolls on the ground that same had already been published---Validity---Petitioner was permanent resident of the village where his name was to be included in the electoral rolls---Application for inclusion of name in the electoral rolls could only be filed under R. 20(1) of Azad Jammu and Kashmir Electoral Rolls Rules, 1970 after publication of the same---Process of election of members to the Legislative Assembly had already been completed therefore embargo contained in R. 20(4) of Azad Jammu and Kashmir Electoral Rolls Rules, 1970 was not attracted---No limitation had been provided for entertaining application under R. 20 of Azad Jammu and Kashmir Electoral Rolls Rules, 1970---Chief Election Commissioner had powers to correct electoral rolls both before the after their final publication---Impugned orders were set aside having been passed without lawful authority---Writ petition was accepted in circumstances.

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; Akhtar Saleem v. Registration Officer and others PLD 1992 Lah. 34; Custodian of Evacuee Property v. Azad Govt. and 2 others 2001 SCR 432 and AJ&K Government and 4 others v. Mohi-ud-Din Islamic University and 2 others 2014 SC 1382 ref.

Mian Karam Illahi v. The Revising Authority of the Electoral Rolls, District Jhelum PLD 1975 Journal 54 and Election Commission of Pakistan v. Asif Iqbal and others PLD 1992 SC 342 rel.

Raja Muhammad Hanif Khan for Petitioner.

Nemo for Respondents Nos. 1 and 2.

Raza Ali Khan Advocate General for Respondent No.3.

YLR 2017 HIGH COURT AZAD KASHMIR 1631 #

2017 Y L R 1631

[High Court (AJ&K)]

Before Azhar Saleem Babar, J

PEARL DEVELOPMENT AUTHORITY RAWALAKOT AZAD KASHMIR---Petitioner

Versus

AJ&K GOVERNMENT, through Secretary Services and General Administration Department (General) and 5 others---Respondents

Writ Petition No.3372 of 2016, decided on 30th March, 2017.

PEARL Development Authority Act, 1993---

----Ss. 12 & 13---Azad Jammu and Kashmir Motor Vehicles Rules, 1973, Rr. 228 to 232---Azad Jammu and Kashmir Rules of Business, 1985, R.9(2)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Writ petition---Maintainability--- PEARL Development Authority---Transfer of bus terminal from the possession of PEARL Development Authority to Municipal Corporation---Dispute between the two departments---Procedure--- PEARL Development Authority acquired land and constructed bus terminal but same was transferred to the Municipal Corporation---Validity---PEARL Development Authority was merely in possession of land acquired for construction of bus terminal and ownership of said land was with the Government---Authority was empowered to implement scheme through local body or agency within relevant jurisdiction---PEARL Development Authority was bound to accept the decision of Government in case of any disagreement between the Authority and the local body---Authority was bound to refer the matter to the Government for decision---Management of bus terminal would vest in the local body, however, approval was to be granted by the Regional Transport Authority for establishment of bus stand---PEARL Development Authority was not empowered to manage business of bus stand/terminal despite the fact that land had been acquired by the Government through the Authority---Local bodies were supervised by Secretariat of Local Government and Rural Development---Secretary Local Government and Rural Development had recommended for handing over the bus terminal to Municipal Corporation---Summary prepared by the Secretary Local Government and Rural Development was an estoppel in the way of PEARL Development Authority as he was the supervisory authority of development authorities---Matter had to be referred to the Government for final decision in case of disagreement between the two departments---Writ petition was dismissed being not maintainable in circumstances.

Muhammad Yaqoob Khan Mughal and Sardar Muhammad Riaz Khan for Petitioner.

Ms. Shabana Rafique for Respondent No.1.

YLR 2017 ISLAMABAD 411 #

2017 Y L R 411

[Islamabad]

Before Aamer Farooq and Miangul Hassan Aurangzeb, JJ

SHAHID CHANZAIB---Petitioner

Versus

C.D.A. and others---Respondents

I.C.A. No.102 of 2016, decided on 30th August, 2016.

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

----S.51---Islamabad Land Disposal Regulations 2005, Regln. 6---Auction of commercial and business plot---Object and scope---Auction is an exercise for raising revenues for government and non-payment of price by auction purchaser visits public exchequer with loss of revenue and defeats very purpose of holding auction to fetch maximum price.

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

----S.51---Islamabad Land Disposal Regulations 2005, Regln. 6---Auction of commercial and business plot---Auction money, non-deposit of---One plot was put to auction by Capital Development Authority and appellant was the auction purchaser of the same---Appellant failed to deposit auction price, therefore, the Authority forfeited 10% of total bid amount---High Court dismissed Constitutional petition and directed the appellant to approach Capital Development Authority--- Validity--- Appellant participated in bidding in accordance with the terms and conditions of bidding process handed out by Capital Development Authority and after acceptance of his highest bid, retracted from his position by not paying balance bid amount---Appellant could not be termed to have come up with clean hands---Capital Development Authority was within its limits in forfeiting 10% of total bid money out of 40% of his amount deposited by appellant---Appellant was not keen to go before Chairman Capital Development Authority, and court could not compel him to do so---High Court, in intra court appeal, set aside the direction passed by Single Judge of High Court directing appellant to appear before Chairman Capital Development Authority---Intra court appeal was allowed accordingly.

Shahul Hamid v. Tahir Ali 1980 SCMR 469 and Muhammad Ikhlaq Memon v. Capital Development Authority 2015 SCMR 294 ref.

----Art.199---Constitutional jurisdiction of High Court---Scope---In proceedings under Art. 199 of the Constitution, which was an extra ordinary jurisdiction, the conduct of litigant played an important role---Where a person had not come with clean hands or the court found that he was not a bona fide person or where his conduct was dubious, the court could decline to go into the merits of the matter.

Riaz Hanif Rahi for Appellant.

Raja Muhammad Adnan Aslam for Respondent No.1.

YLR 2017 ISLAMABAD 538 #

2017 Y L R 538

[Islamabad]

Before Miangul Hassan Aurangzeb, J

DEFENCE HOUSING AUTHORITY, ISLAMABAD---Appellant

Versus

SHAFQAT RASOOL and others---Respondents

F.A.O. No.53 of 2016, decided on 20th September, 2016.

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

----O. IX, R. 13---Land Acquisition Act (I of 1894), S. 18---Reference to court---Ex-parte proceedings, setting aside of---Void order---Scope---Appellants moved application for setting aside of ex-parte proceedings which was dismissed---Contention of appellants was that case after remand was fixed before the court having no jurisdiction---Validity---Administrative error did not absolve the appellants from the obligation of attending the court and pointing out the said error to the Presiding Officer---When an order was passed by a court, tribunal or any other authority which had no jurisdiction either about subject matter, pecuniary value or territorial limits then same would be treated as void order---Court before whom case was fixed after remand did not have the territorial jurisdiction over the matter---Impugned order was without jurisdiction and void which was set aside---Appellants had been negligent in defending the reference petition in post remand proceedings---Appeal was allowed and appellants were directed to pay the cost of Rs. 50,000/- to the respondents---Trial Court was directed to decide the reference petition within specified period of time.

Land Acquisition Collector v. Muhammad Nawaz PLD 2010 SC 745; Chaudhri Shakeel Ahmad v. Ghulam Farid 2015 YLR 957; Najeeb Ullah Khan v. Mst. Hameeda Chaudhry 2016 YLR 1538; Iftikhar Hussain Shah v. Pakistan 1991 SCMR 2193 and Engineer Hafeezullah v. CEO (PTCL) 2011 SCMR 442 ref.

(b) Void Order---

----When an order was passed by a court, tribunal or any other authority which had no jurisdiction either about subject matter, pecuniary value or territorial limits then same would be treated as void order.

Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazeel Khan PLD 1975 SC 331; Niaz Ahmad v. Muhammad Saleem 2004 CLC 1482 and Mian Muhammad Sharif v. Income Tax Appellate Tribunal, Lahore 2016 PTD 296 rel.

Rashid Mehmood Sindhu for Appellant.

Abdul Shakoor Paracha and Wajiha Pervez for Respondents Nos.1 and 2.

YLR 2017 ISLAMABAD 622 #

2017 Y L R 622

[Islamabad]

Before Mohsin Akhtar Kayani, J

SHAHIDA FAZIL---Petitioner

Versus

Mst. HINA TAHIR and 2 others---Respondents

W.P. No.370 of 2016, decided on 22nd February, 2016.

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

----S. 5, Sched. & S.12-A---Constitution of Pakistan, Art. 199---Constitutional petition---Interlocutory order---Suit for recovery of maintenance allowance, dower and dowry articles---Amendment in the plaint---Interim order---Scope---Petition for amendment of plaint was allowed by the Family Court---Validity---Application of Civil Procedure Code, 1908 and Qanun-e-Shahadat, 1984 though had been excluded but Family Court had power to regulate its proceedings depending upon the circumstances of each suit---Basic procedure of filing suit, written statement, pre-trial proceedings, recording of evidence and conclusion of trial had been defined but certain eventualities had not been defined in the special law---Family Court could regulate its proceedings on the general principles of law---Impugned order passed by the Family Court did not suffer from any legal infirmity---Evidence of the defendant had yet not been completed---Fate of the suit would be decided by the Court at the time of final decision of the same---No remedy of appeal, revision or review had been provided in the Family Laws---Constitutional petition against an interim order was not maintainable---Family Court was bound to decide the case within six months but same had not been decided---Family Court was directed to decide the case within one month---Constitutional petition was dismissed in circumstances.

PLD 2012 Lah. 420; 2014 CLC 11; 2015 YLR 2364; 2003 YLR 3309; PLD 1973 SC 236; PLD 1974 SC 139; 2011 CLC 417; PLD 1973 SC 49; 2011 CLC 1836 and 2012 CLC 679 ref.

Syed Saghir Ahmed Naqvi v. Province of Sindh through Chief Secretary S&GAD, Karachi and others 1996 SCMR 1165; Syed Qadas Abbas v. Mst. Samina Shahbaz 2010 CLC 32 and 2014 CLC 330 rel.

(b) Interlocutory order---

----Meaning---Scope---Interlocutory order is an order in which no final verdict is pronounced, but an ancillary order is passed with the intention to keep the same operative till final order/decision is passed in the pending matter.

Hamid Ahmed, Ijaz Janjua and Nasir Mehmood for Petitioner.

YLR 2017 ISLAMABAD 681 #

2017 Y L R 681

[Islamabad]

Before Miangul Hassan Aurangzeb, J

ROGER LEE---Petitioner

Versus

Ch. MUHAMMAD SALMAN and others---Respondents

W.P. No.3645 of 2016, decided on 24th October, 2016.

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

----Ss. 17, 19 & 25---Eviction of tenant---Tentative rent order---Striking off defence---Scope---Tenant was directed to deposit arrears of rent in the Court who failed to deposit the same and eviction petition was allowed---Contention of tenant was that rent had been paid to the previous landlord as he was not aware of change of ownership of rented premises---Validity---Rent for the month of January 2016 had been deposited in the Court in the name of landlord---Tenant should not have been non-suited in circumstances---Change in the ownership of rented premises was a dispute which was to be resolved after recording of evidence---Rent Controller could not take penal measure of striking off his defence and accept landlord's eviction petition simply because tenant did not deposit rent of the period which was disputed between the parties---Landlord could not claim rent for the period when he had not even become the owner of rented premises---Impugned orders passed by the courts below were set aside---Eviction petition was directed to be decided by the Rent Controller within the period stipulated in S. 25(3) of Islamabad Rent Restriction Ordinance, 2001---Constitutional petition was allowed in circumstances.

Najeebullah Khan v. Hameeda Chaudhry 2016 YLR 1538; Muhammad Shahid Fahim v. Abdullah Tayyab 2016 MLD 1121; Bilal Abid v. District Judge West 2015 YLR 2405; George Chou v. Fahmida Zaidi 2015 YLR 2543; Shamshad Ali v. Ghulam Muhammad Chaudhry 2009 CLC 52; Roshan Habib v. Haji Usman 1986 CLC 1484 and Mushtaq Ahmed Kiani v. Bilal Umair 2009 SCMR 1008 ref.

Bilal Akbar Tarar for Petitioner.

Khurram Mehmood Qureshi for Respondent No.1.

YLR 2017 ISLAMABAD 712 #

2017 Y L R 712

[Islamabad]

Before Shaukat Aziz Siddiqui and Mohsin Akhtar Kayani, JJ

IKRAM ULLAH---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.78 of 2016, decided on 6th December, 2016.

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

----S.9(c)---Seizure of narcotic---Appreciation of evidence---Benefit of doubt---Prosecution case was that 4,400 grams Charas Garda in four packets was recovered from the lap of accused, while he was driving a vehicle---Record showed that memo of recovery and complaint were not in one handwriting---Carbon copy of FIR had been exhibited without application for producing secondary evidence---No explanation about non-production of original FIR was on record---Despite spy information, Investigating Officer went to the place of recovery without the weighing scale---Prosecution witnesses had contradicted each other on the point of scale and manner in which proceedings were conducted---Samples were not prepared with weighing process---Case property (car) was taken into possession but same was not produced before the Trial Court---Record established that investigation of the case was not entrusted to the complainant by the Station House Officer of the police---Complainant had himself assumed the role of Investigating Officer---Incurable illegalities, glaring discrepancies and major contradictions were found in the case---Circumstances created doubt about the veracity of the prosecution case, benefit of which would resolve in favour of accused---Accused was acquitted, in circumstances, by setting aside conviction and sentence recorded by Trial Court.

2016 YLR 1093 ref.

2015 PCr.LJ 158; 2014 PCr.LJ 354; 2009 SCMR 230 and 2008 SCMR 1221 rel.

(b) Criminal trial---

----Single circumstance created doubt was sufficient to give its benefit to accused.

Hafiz Fazal Rahim for Appellant.

Sadaqat Ali Jehangir for the State.

YLR 2017 ISLAMABAD 821 #

2017 Y L R 821

[Islamabad]

Before Miangul Hassan Aurangzeb, J

NOMAN AHMED and others---Petitioners

Versus

Mst. SOBIA FAROOQ and others---Respondents

C.R. No.413 of 2016, decided on 21st November, 2016.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2 (B) & S. 151---Suit for partition---Temporary injunction---Dispossession of plaintiff during currency of injunctive order---Effect---Trial Court passed injunctive order restraining the defendants from dispossessing the plaintiff from the suit property---Plaintiff was dispossessed from the suit property and she filed contempt petition---Trial Court directed the bailiff to put plaintiff back in possession of suit property from which she had been dispossessed---Contention of defendants was that injunctive relief granted by the Court could operate only for a period of six months---Validity---Injunctive relief was confirmed after an inter-parte hearing---Plaintiff was dispossessed from the suit property during the currency of injunctive order passed by the Trial Court---Trial Court did not commit any jurisdictional error by directing that plaintiff be handed over possession of the portion of suit property from which she was dispossessed---Injunctive order passed by the Trial Court had till date not been set aside---Alleged dispossession was within a period of six months of the confirmation of injunctive order---Trial Court was bound to restore the status quo ante by putting plaintiff back in possession of suit property---Act of dispossession would amount to over-reaching the process of law---Trial Court was bound to protect the rights of the parties as they existed on the date of filing of the suit and the grant of injunction---Section 151, C.P.C. could also be invoked to effectuate an order validly made by a Court of competent jurisdiction---When unlawful means were adopted by a party, it was responsibility of the Court to invoke S.151, C.P.C. to secure the ends of justice or to prevent abuse of process of Court---Defendants could not take shelter behind their own wrong which had been further accentuated by the creation of a tenancy---Jurisdiction to make restitution was inherent in the Court and could be exercised whenever the justice demanded---Revision was dismissed in limine.

Bakhtawar v. Amin 1980 SCMR 89; Saleem-ud-Din v. Municipal Committee 2000 SCMR 460; Muhammad Anwar v. Municipal Corporation, Faisalabad 1993 CLC 1851; Hameeda Akhtar v. Nazir Muhammad 1995 CLC 2020; Akbar Ali v. Muhammad Sabir 1989 MLD 92; Hazara (Hill Tract) Improvement Trust v. Qaisera Ellahi 2005 SCMR 678; Mayo Khan v. Bashir Ahmad 2007 MLD 588; Sujit Pal v. Prabir Kumar Sum AIR 1986 Cal. 220; Kailash Chand Gupta v. Rukam Singh Yadev AIR 1998 MP 310 and Satish Chandra v. Saila Bala AIR 1978 Cal. 499 rel.

YLR 2017 ISLAMABAD 870 #

2017 Y L R 870

[Islamabad]

Before Mohsin Akhtar Kayani, J

MINHAAJ SAQIB and 2 others---Petitioners

Versus

NAJM-US-SAQIB and another---Respondents

W.P. No.1633 of 2016, decided on 31st May, 2016.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Suit for recovery of maintenance allowance--- Ex parte proceedings, setting aside of---Limitation---Interim order---Scope---Defendant moved application for setting aside of ex parte order which was accepted---Validity---Defendant was proceeded against ex-parte on 16-02-2016 whereas application for setting aside ex-parte proceedings was moved on 26-02-2016---Petition filed by the defendant was well within period of 30 days as provided under the law---Impugned order did not suffer from any illegality---Constitutional petition was not maintainable against an interim order which was dismissed in limine.

Muhammad Majeed v. Judge Family Court and others 2013 YLR 1839; 2015 MLD 265 and 2014 MLD 351 rel.

YLR 2017 ISLAMABAD 906 #

2017 Y L R 906

[Islamabad]

Before Miangul Hassan Aurangzeb, J

FEDERAL BOARD OF INTERMEDIATE AND SECONDARY EDUCATION through Chairman---Petitioner

Versus

AZAM ALI KHAN---Respondent

C.R. No.231 of 2016, decided on 23rd December, 2016.

Specific Relief Act (I of 1877)--

----S. 42---Suit for declaration---Change in date of birth and name in the educational testimonials---Birth certificate--Contention of plaintiff was that wrong entry of date of birth in his educational testimonials was caused by a 'clerical mistake'---Suit was decreed by the Trial Court and appeal was dismissed being time-barred---Validity---Admission Form for secondary school certificate examination had signature of plaintiff and his father---Plaintiff's date of birth in the said Form was stated to be 14-02-1993---Admission Form also contained an affidavit sworn by the plaintiff deposing that the particulars in the said Form were true and correct---Principal of the concerned school had also signed the said Form when it was submitted---Plaintiff's date of birth in the admission Form was not only filled in figures but in words as well---Authorities had not committed error in recording the plaintiff's date of birth on his secondary school certificate---Nothing was on record that plaintiff applied to the Education Board for correction of his date of birth in his educational testimonials---Trial Court could not have brushed aside admission Form by holding that the entries in the same could not bind plaintiff since they were made when he was a minor---Trial Court had not given due evidentiary weight to the admission Form which was an admitted document---Admission Form deserved due weight and credence---Entries made in the admission Form were correct and as per school record of the plaintiff---Evidence of unimpeachable character was required to change the date of birth entered in a person's educational testimonials---Pre-dated educational testimonials in question would have greater evidentiary value---Plaintiff's date of birth i.e. 14-02-1993 entered in the secondary school certificate was based on the entries made by him and/or his father in the admission Form---Plaintiff was estopped from taking a position contrary to the one taken by him prior to the issuance of said secondary school certificate---High Court observed that courts should be vigilant and cautious in granting discretionary relief of declaration in cases where plaintiffs sought a change in their names or dates of birth---Trial Court gave weight to the documents issued to the plaintiff after issuance of secondary school certificate---Trial Court, could not on the basis of such documents decree the plaintiff's suit---If there was a disparity in the date of birth entered in the educational testimonials and National Identity Card or birth certificate, credence was to be given to the entry in the educational testimonials unless there was cogent and convincing evidence to hold otherwise---Birth certificate, in the present case, was issued after more than nineteen years of alleged date of birth i.e. 13-02-1997---When birth certificate was not issued within a reasonable time after birth, entry of date of birth in the certificate had to be corroborated by producing in evidence the Register of births showing the applicant's date of birth---Trial Court went against the law by not requiring the plaintiff to produce the Register of births maintained by the relevant Union Council---Secondary school certificate was the authenticated proof of the student's date of birth and binding---Judgment and decree passed by the Trial Court was contrary to law and was also based on mis-reading of evidence---Mere fact that appeal against such judgment and decree was dismissed on the ground of limitation would not pose an obstacle before a revisional Court to set it aside in exercise of its suo motu revisional jurisdiction---Judgment and decree passed by the Trial Court merged into the appellate order/decree in appeal which was set aside---Suit filed by the plaintiff was dismissed---Revision was allowed in circumstances.

Ijaz Mehmood v. Board of Intermediate and Secondary Education, Lahore 1999 CLC 984; Saima Iltaf v. Principal, Junior Burn Hall Girls College, Abbotabad 2001 CLC 972; Muhammad Hashim Ansari v. Board of Secondary Education, Karachi 2010 CLC 527; Muhammad Faisal v. State Life Insurance Corporations PLD 2007 Lah. 453; Mohammad Arshad v. Noor Ahmad 2008 SCMR 713; Muhammad Swaleh v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97; Town Municipal Administration v. Rifat Hussain 2003 CLC 1370; Oil and Gas Development Corporation v. Clough Engineering Limited 2003 YLR 353; Mst. Bhagay v. Mst. Fatima Bibi PLD 2004 Lah. 12; Mst. Iqbal Bibi v. Allah Yar 2004 YLR 1279; Kiran Arif Mian v. Kinza Khalid PLD 2008 Isl. 11 and Muhammad Kamran Behan v. Board of Secondary Education 2013 YLR 1044 rel.

Dr. Muhammad Azam Khan for Petitioner.

Shah-e-Mulk Yousafzai and Mahmood ul Hassan (Superintendent), FBISE for Respondents.

YLR 2017 ISLAMABAD 1064 #

2017 Y L R 1064

[Islamabad]

Before Mohsin Akhtar Kayani, J

AZIZ AHMAD and others----Petitioners

Versus

MOHAMMAD IRSHAD and others---Respondents

Civil Revision No.270 of 2016, decided on 16th December, 2016.

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

----Ss. 172, 161, 53 & 52---Correction of entries in revenue record---Scope---Plaintiff filed suit for correction of entries in revenue record---Trial Court dismissed the suit but Appellate Court decreed the same---Validity---Revenue authorities could only pass order for correction of revenue record---Section 172 of Land Revenue Act, 1967 did not exclude jurisdiction of Civil Court from exercising the jurisdiction for settlement of rights of the parties which had been effected or when rights had not been settled completely or in those cases where right in rem and personam had to be determined---When any long standing entry had effected the rights of individual, same could only be rectified on the basis of decree of Civil Court---When any entry in the periodical record of rights had successively been made, same had presumption of correctness---Long standing entries could only be rectified on the basis of decree of Civil Court at the first instance---Defendants were beneficiary of correction made by the Collector and subsequent mutation thereof---Order passed by the Collector for correction of entries in the record of rights was illegal---Necessary parties had neither been impleaded in the correction proceedings before the Collector nor rights of individuals had been settled who had purchased the land in question---Even Collector had not issued any notice to the effectees of correction and entire proceedings were contrary to legal practice---Impugned judgment and decree passed by the Appellate Court did not suffer from mis-reading or non-reading of evidence---High Court observed that decision of High Court would not debar the defendants from agitating the matter before competent Court after impleading all concerned parties, effectees, subsequent vendees and transferees in the proceeding under the law---Revision was dismissed.

Ikram Ullah v. Zakir Ullah 2010 YLR 2687; Niamat Ali v. Malik Habibullah 2004 SCMR 604; Abdul Hamid v. Sikandar Ali and others 2005 YLR 890 and Rasta Mal Khan v. Nabi Sawar Khan 1996 SCMR 78 rel.

(b) Words and phrases---

----'Correction'---Meaning.

M. D. Tahir Adv. v. Chief Election Commissioner PLD 1977 Lah. 926 rel.

Rana M. Irshad Khan for Petitioners.

Jam Khursheed Ahmad for Respondents Nos. 1 to 9.

YLR 2017 ISLAMABAD 1136 #

2017 Y L R 1136

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

Malik MUHAMMAD ASHRAF---Petitioner

Versus

DIRECTOR EXCISE AND TAXATION, MOTOR VEHICLE REGISTRATION AUTHORITY, ISLAMABAD and 5 others---Respondents

W.P. No.531 of 2017, decided on 27th February, 2017.

Motor Vehicles Ordinance (XIX of 1965)---

----Ss.34 & 35---General Clauses Act (X of 1897), S.21---Cancellation of ownership---Jurisdiction--- Locus poenitentiae, principle of--- Applicability--- Petitioner was aggrieved of order passed by authorities cancelling ownership of motor in question in exercise of proceedings under Ss.34 & 35 of Motor Vehicles Ordinance, 1965---Validity---Principle of locus poenitentiae did not come in way the rescinding earlier orders---Order of transfer in question in favour of anybody was passed fraudulently and the same could not be protected by principle of locus poenitentiae---Fraud perpetuated conjointly was surfaced on the record---Technical relief could not be granted merely for the reason that Excise and Taxation Officer had no power under Ss.34 & 35 of Motor Vehicles Ordinance, 1965, to cancel ownership---Such power of rescission was always available with authorities who issued order having equal power to rescind the same---Constitutional petition was dismissed in circumstances.

2005 SCMR 1814 ref.

Faisal Iqbal Khan for Petitioner.

Imran Feroz for Respondents.

YLR 2017 ISLAMABAD 1191 #

2017 Y L R 1191

[Islamabad]

Before Aamer Farooq, J

Professor Dr. SHAH JUNAID AHMAD HASHMI and 2 others---Petitioners

Versus

REGISTRAR COOPERATIVE SOCIETIES, ISLAMABAD and 2 others---Respondents

Writ Petition No.3855 of 2016, decided on 9th November, 2016.

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

----Ss. 3(7) & 64(A)---Islamabad Capital Territory Cooperative Societies (Managing Committee Elections) Rules, 2014, R.15(2)---Election process, scrapping of---Registrar Cooperative Societies---Jurisdiction---Petitioner was aggrieved of order passed by Registrar, Cooperative Societies whereby election process was scrapped---Validity---Registrar Cooperative Societies was the Authority under S. 3(7) of Co-operative Societies Act, 1925, and had suo motu powers under S. 64 (A) of Co-operative Societies Act, 1925, to call for record of any proceedings or process carried out by any subordinate officer---Registrar, Cooperative Societies had the authority to examine legality of election process, therefore, order of scrapping elections was within the four corners of law---Scrutiny of nomination papers and legality was to be determined by Election Commission, therefore, orders of rejecting nomination papers was set aside---Election process having not been carried out by Election Commission, therefore, the same was without lawful authority---Constitutional petition was dismissed accordingly.

Citizen Cooperative Housing Limited v. Agha Taj Muhammad Academy 2011 YLR 246; Abdul Ghaffar and another v. Abdul Rauf and 2 others 2016 PLC 138; Muhammad Mustafa v. Syed Azfar Ali and 3 others PLD 2014 Sindh 224; Commissioner Income Tax/Wealth Tax, Companies Zone-III Lahore v. Messrs Idara-i-Kisan Lahore 2006 PTD 2569; Muhammad Sharif v. SHO PLD 1997 Lah. 692 and Mazhar Illahi v. The State PLD 2008 Pesh. 162 ref.

Yousaf Hussain Khan v. M. Mursalin Y. Burney 1990 CLC 781; Karachi Cooperative Housing Society v. Government of Sindh 1990 MLD 389 and Ch. Muhammad Basharat v. Chief Commissioner Islamabad PLD 2012 Isl. 31 rel.

Sher Afzal Khan, Ch. Waqas Zamir and Malik Ghulam Sabir for Petitioners.

YLR 2017 ISLAMABAD 1224 #

2017 Y L R 1224

[Islamabad]

Before Mohsin Akhtar Kayani, J

SALEEM ULLAH KHAN---Petitioner

Versus

FEDERATION OF PAKISTAN through Ministry of Interior and Narcotics Control, Interior Division, Islamabad and 6 others---Respondents

W.P. No.753 of 2016, decided on 6th May, 2016.

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

----S. 2(k)---Notification No. S.R.O. 83 (KE)/2002 dated 01-08-2002---Housing Society--- Territorial jurisdiction---Determination---Procedure---High Court directed Surveyor General of Pakistan to provide the details with map reference (Eastings and Northings) and marked the boundary pillar on the map---Notified map was issued---Housing Society in question did not fall within the territorial jurisdiction in terms of Islamabad Rent Restriction Ordinance, 2001---Copies of map were sent to the District and Sessions Judges for their reference to resolve the territorial issues in all cases under Islamabad Rent Restriction Ordinance, 2011---Rent Controllers were directed to verify their pending cases accordingly---Constitutional petition was allowed in circumstances.

Petitioner in person.

Muhammad Haseeb Ch. Standing Counsel.

Ms. Shazia Bilal, State Counsel.

YLR 2017 ISLAMABAD 1399 #

2017 Y L R 1399

[Islamabad]

Before Miangul Hassan Aurangzeb, J

ISLAMABAD LAW COLLEGE---Petitioner

Versus

HIGHER EDUCATION COMMISSION through its Chairman and others---Respondents

W.P. No.3117 of 2016, decided on 2nd February, 2017.

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

----O. I, R.1---Parties to suit---Only natural or juristic person can sue or be sued in its own name.

(b) Islamia University of Bahawalpur Act (IV of 1975)---

----S.5(3)---Provisional affiliation---Conditional "No Objection Certificate"---Petitioner was a Law College which claimed to have been affiliated with Islamia University Bahawalpur---Grievance of petitioner was that Higher Education Commission did not issue "No Objection Certificate", which was required for affiliation of petitioner with the University---Plea raised by petitioner was that delay in issuance of "No Objection Certificate" would affect future of students---Validity---When University granted provisional affiliation to petitioner for academic session 2014-15, the petitioner was expressly cautioned not to make admissions for next academic session without obtaining a fresh " No Objection Certificate" granted by High Education Commission, failing which its application for affiliation would not be considered---Petitioner should not have admitted students for academic session in question without having obtained "No Objection Certificate" from the Commission or an affiliation for such academic session from the University---Petitioner was obliged to have intimated students applying for admission for next academic session that it did not have the requisite affiliation with the University---University under S.5(3) of Islamia University of Bahawalpur Act, 1975, could prescribe conditions for the grant of affiliation or admission of any educational institution to its privileges---Requirement of obtaining "No Objection Certificate" from Higher Education Commission was a condition set by the University for granting affiliation to the University---Several deficiencies were pointed out by Higher Education Commission in its inspection reports of the Law College---No illegality, mala fide, irrationality or procedural impropriety was committed by the Commission in refusing to grant "No Objection Certificate" to petitioner college---Constitutional petition was dismissed in circumstances.

Messrs Aran Saz Contractors v. Pak Chromical Limited 1999 MLD 1781; Habib Bank Limited v. Iqbal I. Chundrigar 1983 CLC 1464; Noor Muhammad Khan Marwat v. Vice-Chancellor, Gomal University PLD 2001 SC 219; Seena International Medical College v. Government of N.W.F.P. 1999 SCMR 2110; Rahimyar Khan College of Education v. Islamia University of Bahawalpur 1996 SCMR 341; Al-Farooq College of Education, Bahawalpur v. Islamia University, Bahawalpur 1997 MLD 2896; International College of Commerce v. University of Punjab PLD 2004 Lah. 335; Pakistan Bar Council v. Federal Government PLD 2007 SC 394 and Pakistan Bar Council v. Federal Government 2013 SCMR 165 ref.

Tariq Bilal, Atiq-ur-Rehman, Shahzadi Samreen Tariq, Raja Aleem Khan Abbasi, Arif Chaudhry, and Raja Ansar Abbas for Petitioners.

Qaiser Sarwar and Shahid Khalid, Law Director HEC for Respondent No.1.

Bilal Ahmad Qazi and Khalid Mehmood Asst. Registrar (Legal) for respondent No.5.

YLR 2017 ISLAMABAD 1626 #

2017 Y L R 1626

[Islamabad]

Before Aamer Farooq and Miangul Hassan Aurangzeb, JJ

Mrs ASMA ALAMGIR---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

W.P. No.1264 of 2017, decided on 10th April, 2017.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(b) & 18(c)---Constitution of Pakistan, Art. 199---Constitutional petition---Transitory bail, grant of---Petitioner who was abroad and she sought transitory bail from Court at place "I" (Pakistan) so as to face investigation---Authorities raised the plea that Court at place "I" (Pakistan) lacked territorial jurisdiction---Validity---Inquiry against petitioner was pending at place "P" (Pakistan) and call-up notices were also issued by office at place "P" but High Court was concerned only with transitory bail--- When petitioner would seek pre-arrest bail under Art. 199 of the Constitution, she was to go before the competent Court having territorial jurisdiction over the matter i.e. High Court at place "P" (Pakistan)---High Court at Place I (Pakistan) granted transitory bail to petitioner for a period of 15 days---Constitutional petition was allowed in circumstances.

Javed Iqbal Mirza v. National Accountability Bureau 2007 PCr.LJ 1230; Hasan Sohail v. The State 2006 YLR 3116; Muhammad Jamal v. Federation of Pakistan 2012 YLR 167; Khawaja Muhammad Salman Younis v. Federation of Pakistan PLD 2016 Sindh 547; Mrs. Ambreen Saleem Khawaja v. FOP 2015 PCr.LJ 506 and Sabir Hussain v. The State 1999 MLD 2208 ref.

Barrister Masroor Shah for Petitioner.

YLR 2017 ISLAMABAD 1674 #

2017 Y L R 1674

[Islamabad]

Before Miangul Hassan Aurangzeb, J

AL-MUKHLIS (PVT.) LTD. COMPANY---Appellant

Versus

Messrs TELECOM FOUNDATION and another---Respondents

F.A.O. No.39 of 2016, decided on 24th February, 2017.

Arbitration Act (X of 1940)---

----S. 20---Application under S. 20, Arbitration Act, 1940---Scope---Limitation--- Condonation--- Non-compliance of agreement---Appellant was aggrieved of order passed by Trial Court declining to refer contractual dispute to arbitration---Validity---Arbitration clause provided that dispute between the parties had to be referred, in the first instance, to a specified arbitrator who was supposed to give his decision on disputes and if after the decision of said arbitrator dispute persisted, the same was to be resolved under provisions of Arbitration Act, 1940---Dispute between the parties could be referred to arbitration only after decision of specified arbitrator---Right of aggrieved party to refer contractual disputes to arbitration therefore, was preconditioned with reference of the same to specified arbitrator---Application under S.20 of Arbitration Act, 1940, without fulfilling of preconditions of reference of dispute for decision of arbitrator in terms of specific clause of agreement, was liable to be dismissed as premature---Appellant's claim was turned down by respondent in year 1996 when cause of action for instituting arbitration proceedings had accrued---Trial Court was correct in not condoning delay in filing application under S. 20 of Arbitration Act, 1940 which was barred by many years---Appeal was dismissed in circumstances.

Province of Balochistan v. Mirza Abdul Hayee 1991 SCMR 1313; Sherin v. Fazal Muhammad 1995 SCMR 584; Oil and Gas Development Company Ltd. v. Agha Muhammad and Brothers 2015 MLD 1821; M. Imam-ud-Din Janjua v. the Thal Development Authority through the Chairman, T.D.A., Jauharabad PLD 1972 SC 123; Dar Okaz Printing and Publishing Limited Liability Company v. Printing Corporation of Pakistan Private Limited PLD 2003 SC 808; Progressive Engineering Associates v. Pakistan Steel Mills Corporation Ltd. 1997 CLC 236; Muhammad Nazir v. Secretary, Cooperative Department 1989 MLD 1156; Mirza Saeed-ud-Din v. Islamic Estates and Builders Limited 1992 CLC 477; Government of Pakistan v. Messrs Shafsal Enterprises, Government Contractors 2002 YLR 2528; Messrs ACSYS Limited v. Associated Press of Pakistan Corporation 2004 CLC 1262; Abdul Rauf Muhammad Hanif (Pvt.) Ltd. v. WAPDA PLD 2007 Lah. 335 and Khushi Muhammad v. Fazal Bibi PLD 2016 SC 872 ref.

Board of Intermediate and Secondary Education v. Fine Start and Company 1993 SCMR 530; Karachi Dock Labour Board v. Quality Builders Ltd. PLD 2016 SC 121; Hanover Contractors v. Pakistan Defence Officers Housing Society 2002 CLC 1880; Sanad Associates v. General Manager Telephone and Telegraph 1989 CLC 386; Ayaz Builders v. Board of Trustees of the Karachi Port Trust and another 2008 CLC 726 and WAPDA v. S. H. Haq Noor & Co. 2008 MLD 1606 rel.

Malik Taj Mohammad Khan for Appellant.

Syed Ishtiaq Haider for Respondent No.1.

YLR 2017 ISLAMABAD 1925 #

2017 Y L R 1925

[Islamabad]

Before Mohsin Akhtar Kayani, J

RASHID MUKHTAR---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.159 of 2016, decided on 23rd May, 2017.

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

----Ss. 302(b), 324 & 337-A(i)---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah---Appreciation of evidence---Benefit of doubt---Ocular account was not supported by medical evidence---Prosecution case was that accused-appellant was son-in-law of complainant, came to the house of complainant along with his wife and minor daughter, and both husband and wife started quarrelling with each other---Accused-appellant picked a knife and attacked on his wife, who received injury on her hand---Accused-appellant, thereafter got hold of minor from her legs and banged her head against a carpeted floor, resultantly she succumbed to the injuries---Ocular account was furnished by witnesses comprising complainant, his son and his injured daughter---Said witnesses allegedly claimed to be eye-witnesses and narrated the entire incident in their evidence but they had not referred any reason as to why injured witness had frequent fights with accused-appellant---Statements of prosecution witnesses and accused showed that at the place of occurrence, presence of the witnesses and accused as well as the minor deceased was admitted---Scuffle between parents of injured witness and accused was admitted---Injured witness who claimed that she had received a churri blow on her left hand had explained the incident that accused-appellant while picking up fruit cutting churri from dressing table aimed churri blow at her chest, but she holding the churri by her right hand, her left hand was injured---Said version of injured witness was unnatural as if she held the churri with her right hand, how she got injured or received injuries on her left hand---Injured was referred to surgery consultation but no document was available to confirm as to whether surgery department had ever given consultation to the injured witness---Circumstances suggested that it was not believable that injured witness had ever received any injury on her left hand as no Medico-Legal Report of the injured witness was available on the record---No medical report was available on record, which proved that injured witness received any injury and the laceration, if considered to be simple, then the same did not cover the requirement of S. 324, P.P.C. and the punishment awarded under the said section was therefore not justified---Medical Officer, who conducted post-mortem of the deceased stated that it was not affirmed that deceased had fallen on the ground or her head banged on the floor, however he acknowledged that injuries received by the deceased might have been caused by falling on the floor---Medical Officer had admitted that the word forceful was mentioned in the post-mortem report prepared by him was on the basis of information given to him by the police---Circumstances established that prosecution failed to prove the case against the accused-appellant with clarity, which created doubt, benefit of which would resolve in favour of accused-appellant---Accused-appellant was acquitted by setting aside conviction and sentence recorded by the Trial Court.

Azmat Ullah alias Daddi v. Pir Badshah and another 2015 PCr.LJ 838; Saif Ullah and 2 others v. The State 2015 PCr.LJ 820 and Muhammad Mushtaq v. The State 2015 PCr.LJ 1800 rel.

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

----Ss. 302(b), 324 & 337-A(i)---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah--- Appreciation of evidence---Recovery of weapon of offence---Weapon of offence, churri was recovered from the kitchen of the alleged house of complainant, which was placed in shelf of the kitchen---Investigating Officer had not confirmed that who was the owner of the house from where said churri was recovered---Even the Investigating Officer did not see any male, female or child in the said house and main gate of the house was open at the time of recovery of churri---Said churri had not been sent for chemical examination for determination of human blood, which positively confirmed the stance that churri had not been used in the alleged incident---Injured witness had deposed that accused-appellant threw down the churri and picked up the minor from her legs---Prosecution did not allege that accused-appellant had taken the churri and left the place---Said recovery had not been corroborated from any other independent source, therefore, the circumstances demonstrated that recovery was not believable and had been managed subsequently---Circumstances established that recovery was not sufficient for conviction of the accused-appellant---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

Jafar and 6 others v. The State 2013 PCr.LJ 1650 rel.

----Medical evidence---Evidentiary value---Medical evidence was supportive evidence through which, prosecution could confirm the ocular account with regard to receipt of injury, but it did not give the identification of accused.

Saif Ullah and 2 others v. The State 2015 PCr.LJ 820 and Azmat Ullah alias Daddi v. Pir Badshah and another 2015 PCr.LJ 838 rel.

(d) Criminal trial---

----Two versions---Effect---When two versions come on record while interpreting the medical and ocular account, version supported by medical evidence could be appreciated, but where it was not certain, then benefit would go to accused.

Muhammad Mushtaq v. The State 2015 PCr.LJ 1800; Lal Bux v. Dhani Bux and others 2013 PCr.LJ 345; Iqbal Khan and others v. Inayat Ullah and others, 2012 PCr.LJ 1139 and Ghulam Rasool Shah v. State through SHO P.S. Garhi Doputta and others 2010 PCr.LJ 1850 rel.

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

----Ss. 302(b), 324, & 337-A(i)---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah--- Appreciation of evidence---Motive not proved---Prosecution had alleged the motive that the accused-appellant had a clash with his family prevents due to his wife/daughter of complainant and on that score, he extended threat of killing both his wife and daughter---Record showed that motive had not been corroborated by the prosecution through any independent source---No witness had been called to prove that accused-appellant had ever quarrelled with his own parents on the issue of his wife---Circumstances established that prosecution failed to prove the alleged motive for the occurrence--- Accused-appellant was acquitted by setting aside conviction and sentence recorded by the Trial Court.

(f) Criminal trial---

----Motive, proof of---Principle---If the motive suggested by the prosecution had not been proved or onus had not been discharged by the prosecution, the same could not be taken into account while convicting accused.

Zafar v. The State 2015 PCr.LJ 424; Tanvir Ahmad v. The State 2017 YLR 469 and Muhammad Ramzan v. The State 2013 Cr.LJ 1560 rel.

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

----Ss. 302(b), 324 & 337-A(i)---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah--- Appreciation of evidence--- Defence plea--- Accused-appellant had alleged that minor (deceased) had fallen on the ground from the hands of her mother/injured witness during a scuffle, which took place because he wanted to take them to his parent's house but his wife and her family refused to agree to let them go---Record showed that accused-appellant had raised his defence plea through statement recorded under S. 342, Cr.P.C. read with S. 340(2), Cr.P.C.---Said statement which fell under defence plea gave rise to a reasonable possibility of innocence of the accused---Accused-appellant was acquitted by setting aside conviction and sentence recorded by the Trial Court.

Taj Muhammad v. Bacha Muhammad and another 2013 PCr.LJ 1858 and Mehboob-ur-Rehman v. The State 2013 SCMR 106 rel.

(h) Criminal trial---

----Benefit of doubt---Scope---When substantial doubt emerged on the record, benefit of same would go to accused.

Muhammad Hanif alias Pocho v. The State 2014 PCr.LJ 928; Ali Haider, and others v. The State 2014 PCr.LJ 783; Nawab Ali v. The State 2014 PCr.LJ 885; Muhammad Ali alias Faisal v. The State 2014 PCr.LJ 669; Hajan and others v. The State 2014 PCr.LJ 1123; Muhammad Bux alias Papoo Shar v. The State 2014 PCr.LJ 1707; Ayub v. Munsif and others 2015 PCr.LJ 369; Iqbal v. The State and others 2015 PCr.LJ 735; Sami Ullah and others v. The State and others 2015 PCr.LJ 416; Mir Muhammad v. The State and others 2014 PCr.LJ 1727; Siyar Muhammad v. The State and others 2014 PCr.LJ 354 and Nawaz alias Najee v. The State and others 2014 PCr.LJ 69 rel.

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

----Ss. 302(b), 324 & 337-A(i)---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah--- Appreciation of evidence---Case of two versions---Prosecution had alleged that accused-appellant got hold of minor from her legs and banged her head against a carpeted floor, resultantly she succumbed to injuries---Defence had alleged that minor had fallen on the ground from the hands of her mother/injured witness during scuffle, which took place in the house of parents of his wife/injured witness---Validity---Medical Officer, who conducted post-mortem of the deceased minor deposed that possibility could not be ruled out that injury was caused to deceased due to fall on the floor---Said witness had not confirmed that the injury was caused by banging the head of the deceased on the carpeted floor---Circumstances created doubt about the veracity of the prosecution case, benefit of which would resolve in favour of accused-appellant---Accused appellant was acquitted by setting aside conviction and sentence recorded by the Trial Court.

Syed Mohammad Tayyab for Appellant.

Sabah Mohy-ud-Din Khan for Respondent No.2.

Ms. Hadiya Aziz for the State.

YLR 2017 ISLAMABAD 2031 #

2017 Y L R 2031

[Islamabad]

Before Mohsin Akhtar Kayani, J

WISHAL MASIH---Appellant

Versus

The STATE and others---Respondents

Crl. Appeal No.34 of 2016, decided on 3rd June, 2016.

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

----S. 376---Rape---Appreciation of evidence---Ocular account corroborated by medical evidence---Prosecution case was that the accused committed rape with minor daughter of the complainant---Complainant/mother of the victim recorded her statement and identified the accused-appellant in her evidence and re-affirmed her stance taken in the complaint---Victim appeared as witness and stated when she was playing in front of her house with friends, accused-appellant blind folded the victim and took her to his house and committed rape---Medical Officer, who medically examined the victim confirmed the multiple bruises on different parts of the body, hymen of the victim was torn---Victim had directly nominated the accused-appellant which was corroborated by the statement of Medical Officer---Record showed that victim had not given any consent, rather she was forced---Defence could not extract anything favouring the accused-appellant during the cross-examination of complainant and victim---Defence failed to cross-examine the portion of victim where she directly charged the accused-appellant---Circumstances established that prosecution had proved its case, appeal against conviction was dismissed.

2016 SCMR 267; 2012 PCr.LJ 437; 2013 PCr.LJ 182; 2010 PCr.LJ 1296 and 2012 PCr.LJ 142 ref.

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

----S. 376---Rape---DNA test and chemical analysis reports---Evidentiary value---Although the DNA test report, in the present case, was found negative, but it was not the requirement of law to confirm the semen through the chemical analysis or DNA report to prove the ingredients of S. 376, P.P.C.---Penetration was sufficient to constitute the offence---Chemical analysis report was evidence of strong nature, which could help the prosecution to prove its case and same could be relied upon if other evidence was silent.

Khadim Hussain v. The State 2011 PCr.LJ 1443 rel.

----S. 376---Juvenile Justice System Ordinance (XXII of 2000), S.11(a)---Rape---Victim, a minor girl---Release of juvenile accused on probation---Scope---Accused was thirteen years of age when he committed rape with the minor girl---Trial Court convicted the accused under S. 376, P.P.C. and sentenced him to ten years simple imprisonment---Validity---Record showed that accused was thirteen years of age at the time of commission of offence and at the time of conviction, he was of sixteen years---Although under S.11(a) of Juvenile Justice System Ordinance, 2000, court had discretion to release a juvenile on probation but, in the present case, accused-juvenile had committed rape with a minor girl and it was not appropriate to release the juvenile-accused on probation---Conviction and sentence of accused was maintained with the direction to send him to a borstal institution until he attained the age of eighteen or for the period of imprisonment, whichever was earlier---Appeal was dismissed accordingly.

Faisal Aleem v. The State PLD 2010 SC 1080; Shahrukh v. Bashir Ahmad and another 2013 PCr.LJ 584; Muhammad Alamgir v. The State 2011 YLR 341; Rehmatullah v. The State 2015 PCr.LJ 1163; Naseebullah v. The State PLD 2014 Pesh. 69; Salil Bali v. Union of India (2013) 7 SC Cases 705; Yakub Abdul Razak Memon v. State of Maharashtra (2013) 13 SCC 1; Mian Khan v. The State PLD 2014 Pesh. 127; Ghulam Qadir v. Additional Sessions Judge and others PLD 2012 Lah. 345; Sube Singh and others v. State of Haryana and others 1989 MLD 1514; Ghaniur Rehman v. The State 1985 PCr.LJ 177 and Hazrat Bilal v. The State and another 2013 PCr.LJ 800 rel.

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

----S. 376---Criminal Procedure Code (V of 1898), S. 544-A---Rape---Imposition of fine---Compensation, award of---Scope---Accused was convicted by Trial Court for committing rape with a minor girl and sentenced to imprisonment for ten years simple imprisonment without imposition of fine--- Validity--- Punishment provided under S. 376, P.P.C. was death, or imprisonment for either description for a term which shall not be less than ten years or more than twenty five years and shall also be liable to fine---In the present case, Trial Court awarded simple imprisonment for ten years without imposing any fine, which was mandatory---Conviction and sentence of accused was maintained, however fine of Rs.100,000 was also imposed, which shall be paid to the victim and in case of default in payment of fine, he shall further undergone simple imprisonment for six months---Appeal was dismissed accordingly.

Safdar Ali alias Soni v. The State and another PLD 2015 Lah. 512 rel.

(e) Words and phrases---

----"Diversion"---Definition.

(f) Words and phrases---

----"Conditions of diversion"---Definition.

Rashad-ul-Musawar for Appellant.

Ms. Zareen Kanwal for Respondent No.2.

Ch. Muhammad Haseeb Standing Counsel and Ms.Shazia Bilal State Counsel for the State.

YLR 2017 ISLAMABAD 2078 #

2017 Y L R 2078

[Islamabad]

Before Miangul Hassan Aurangzeb, J

MUHAMMAD SAEEDULLAH---Petitioner

Versus

JAMIA MASJID MADNI---Respondent

C.R. No.252 of 2016, decided on 8th March, 2017.

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

----S.47---Execution petition---Objection---Scope---Judgment-debtor moved objection petition which was dismissed and warrant of possession was issued---Validity---Relief of possession through ejectment had been prayed for in the suit instituted by the decree-holder---Suit was decreed and decree-holder was held entitled to a declaration to the effect that judgment-debtor had no right to retain the suit property---Judgment-debtor had no right to occupy the property in question---No infirmity or error had been pointed out in the orders passed by the Courts below---Revision was dismissed in circumstances.

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

----Ss. 47 & 104---Execution petition---Objection--- Appeal--- Maintainability---Executing Court passed orders with regard to a question relating to execution of decree by rejecting objections---Such order possessed all the essential elements of finality---Order passed under S.47, C.P.C. was appealable.

Muhammad Ismail v. Muhammad Younis 2003 CLC 1252 and Lala Zar Textile Mills v. Muhammad Yasar 2014 MLD 820 rel.

Abdul Haq Malik for Petitioner.

Manzoor Hussain for Respondent.

YLR 2017 ISLAMABAD 2096 #

2017 Y L R 2096

[Islamabad]

Before Aamer Farooq, J

MUBASHIR LUQMAN and others---Petitioners

Versus

STATE and another---Respondents

Crl. Misc. No.708-Q of 2016, decided on 17th April, 2017.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss. 501, 504 & 505(ii)---Printing or engraving matter known to be defamatory, intentional insult with intent to provoke breach of the peace, publish or circulate any statement or report containing rumour or an alarming news---Quashing of proceedings---Inherent powers of High Court---Scope---Prosecution case was that allegedly petitioners put a banner at the prominent place on the road, which contained a statement against Judge of the Supreme Court and some other persons---During the course of investigation, petitioners were implicated---On conclusion of the investigation, report under S. 173, Cr.P.C. was filed before the Trial Court and the copies of the relevant documents were provided to the petitioners under S. 265(2)(B), Cr.P.C.---Petitioners had raised objection that there were insufficient material on record and that the Sessions Court could not hold a trial of non-cognizable offence as S. 505(ii), P.P.C. was not attracted---Objection was dismissed by the Trial Court---Validity---Admittedly, petitioners were not named in the FIR and were implicated subsequently and were made accused in report under S. 173, Cr.P.C.---Record showed that offence under S. 505(ii) P.P.C., was non-cognizable and police officer conducted investigation without the permission of a Magistrate---On the basis of said objection, proceeding could not be set aide unless the illegality in the investigation could be shown to have resulted in grave miscarriage of justice---Illegality committed in the course of investigation did not affect the competency and jurisdiction of the court for trial---Circumstances established that order and the proceeding before the Trial Court did not suffer from any legal or jurisdictional infirmity---Petition for quashment was dismissed in circumstances.

Muhammad Rashid v. The State PLD 1964 (W.P.) Kar. 391; Muhammad Waheed and 3 others v. SHO Police Station City Mansehra and 2 others 2011 MLD 613; Hussain Javeri v. The State 1983 PCr.LJ 102; Naseem Sarwar v. SHO Police Station, Aabpra, Islamabad 2011 MLD 847; Habibullah and 37 others v. The State 2005 YLR 2721 and Chief Eshtesab Commissioner, Chief Ehtesab Commissioner's Secretariat, Islamabad v. Aftab Ahmad Khan Sherpao, Ex-Chief Minister, NWFP, Peshawar and others PLD 2005 SC 408 ref.

Altaf Hussain v. Abdul Samad and 3 others 2000 SCMR 1945 rel.

Sher Afzal Khan for Petitioners.

Yasir Barkat, Tanveer and Tahir Khan Niazi, SHO for Respondents.

YLR 2017 ISLAMABAD 2423 #

2017 Y L R 2423

[Islamabad]

Before Mohsin Akhtar Kiyani and Athar Minallah, JJ

SHARJEEL INAM---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

W.P. No.1005 of 2017, decided on 20th March, 2017.

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

----Ss.497 & 498---Protective bail---Scope---Order in respect of granting protective bail is for a specified period merely to protect an accused till he or she has approached a competent court---Such is not in the nature of granting an anticipatory or pre-arrest bail under S.497, Cr.P.C. nor disentitles accused to seek a remedy before concerned competent court---While granting protective bail merits or demerits of case are not discussed or considered---Practice of allowing protective bail is adopted so as to encourage an accused to surrender himself to the custody of a competent court for seeking a remedy.

Malik Mukhtar Ahmad Awan v. The State 1990 PCr.LJ 617; Shahna Khan v. Aulia Khan and others PLD 1984 SC 157; State v. Naseem ur Rehman PLD 2005 SC 270 and The State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322 rel.

(b) Bail---

----Protective bail---Fundamental right---Scope---Access to competent court is a Fundamental Right guaranteed under the Constitution---Refusal to grant protective bail tantamount to denial of right to access to justice, which is fundamental to and an integral part of rule of law.

Al-Jehad Trust and others v. FOP and others PLD 1996 SC 324; Sh. Riaz ul Haq and another v. FOP and others PLD 2013 SC 501; Khan Asfandyar Wali and others v. FOP and others PLD 2001 SC 607 and Watan Party and others v. FOP and others PLD 2012 SC 292 rel.

----Art. 199---Constitutional petition---Anticipatory bail--- Abscondance of accused---Accused had shown his bona fides by surrendering before High Court and only sought protection so that his right to approach competent Court or access to justice be ensured---Effect---Abscondance of accused was not unexplained and such factor would be considered by competent Court to which access was being sought by accused---Constitutional petition was allowed in circumstances.

Muhammad Yaqoob v. The State 1995 PCr.LJ 1882; Alam Zaib v. Haji Muhammad Ramzan and another 2000 MLD 1718; Ch. Haqnawaz v. Haq Nawaz Dhudi and others 2004 MLD 1095; Awal Gul v. Zawar Khan and others PLD 1985 SC 402 and Murad Khan v. Fazle-e-Subhan and another PLD 1983 SC 82 ref.

Raja Muhammad Shakeel Abbasi and Farooq H. Naik for Petitioners.

Sardar Muzaffar Ahmad Khan, ADPG, NAB.

Karachi High Court Sindh

YLR 2017 KARACHI HIGH COURT SINDH 1 #

2017 Y L R 1

[Sindh]

Before Ahmed Ali M. Shaikh and Mohammed Karim Khan Agha, JJ

AMJAD HUSSAIN---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and another---Respondents

C.P. No.D-1210 of 2016, decided on 27th April, 2016.

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

----S. 18(c) & (d)---Standing Operating Procedure, Para. ix---Inquiry and investigation---Pecuniary jurisdiction---In Para. (ix) of Standing Operating Procedure, expression "any other case falling within the purview of NAB irrespective of the amount involved and status of accused person, with prior approval of the Chairman" is added because there may be cases falling below Rs.100 million which cannot be prosecuted by any other agency and as such rather than letting the culprit off Scott free, he should be prosecuted by NAB at the discretion of the Chairman---In cases below Rs.100 million which can be dealt with by other agencies such as Federal Investigation Agency and Anti-Corruption Establishment, High Court expected NAB to send such cases to such alternate agencies for prosecution by virtue of S. 18(d) of National Accountability Ordinance, 1999.

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

----Ss. 9(a) & 9(b)---Standing Operating Procedure, Para. ix---Bail, refusal of---Causing loss to government---Pecuniary jurisdiction---Bogus sales tax returns---Standing Operating Procedure---Applicability---Petitioner was running a manufacturing business and claimed bogus sales tax refund against fake filing and bogus sales tax invoices for a small amount of Rs. 4.37 million, which was contrary to Standing Operating Procedure of NAB---Validity---NAB through opening of proprietorships bank account form, bank statements and cheques paid to proprietorship, other documents on record (including banking) and statements under S. 161, Cr.P.C. was able to produce sufficient material to show that there were reasonable grounds to link accused to the offence---Amount involved was only approximately Rs.43 lacs and below the amount generally specified in the new Standing Operating Procedure, such aspect was covered by Para. ix of the Procedure---High Court directed Trial Court to complete trial expeditiously keeping in view the provisions of S. 16(a) of National Accountability Ordinance, 1999---Bail was declined in circumstances.

Syed Zafar Ali Shah v. General Pervez Musharraf PLD 2000 SC 869; Khan Asfandyar Wali v. Federation of Pakistan PLD 2011 SC 607; Rauf Bakhsh Kadri v. The State and others 2003 MLD 777 and Abdul Aziz Memon v. NAB PLD 2013 SC 594 ref.

Javed Ahmed Chhatari for Petitioner.

Noor Muhammad Dayo, ADPGA NAB and Muhammad Aslam Bhutta, Special Prosecutor, NAB for Respondents.

PGA assisted by DPGA, SC GOP, PG Sindh on Court Notice.

YLR 2017 KARACHI HIGH COURT SINDH 39 #

2017 Y L R 39

[Sindh]

Before Naimatullah Phulpoto and Ghulam Qadir Leghari, JJ

MUHAMMAD ISMAIL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.128 of 2014, decided on 29th April, 2016.

Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Incident had taken place in the house of the complainant and at the relevant time witnesses, who were nearest relatives inter se were present and had seen the same---Said witnesses being natural witnesses, had given ocular account of occurrence---Version of said witnesses, was straightforward, confidence inspiring---Nothing favourable to accused came on record despite lengthy cross-examination of said witnesses---No ground existed to discard or disbelieve evidence of the witnesses---Alleged contradictions in the statements of witnesses, were not material to destroy the intrinsic value of the evidence of witnesses---Ocular evidence, was fully corroborated by medical evidence, as well as recovery of empty and live bullet---Non-recovery of weapons of offence, by itself, would not be fatal for the prosecution in view of direct evidence, corroborated by medical evidence---Evidence of eye-witnesses was quite reliable---Incident was a case of preplanned and premeditated murder, committed by accused due to strained relations---Accused had shown extreme high handedness by launching aggression against his ex-wife, and killing her by firing on vital part of her body---Plea of accused for reduction in the sentence, merited no consideration, as there existed no circumstances, warranting mitigating of his sentence of death---Circumstances of the case, disentitled accused to any leniency in the sentence---Conviction and sentence of death awarded to accused by the Trial Court, were confirmed, in circumstances.

Haji Muhammad Ilahi and others v. Muhammad Altaf alias Tedi and others 2011 SCMR 513; Ajmal Khan v. The State 2012 SCMR 583 and Khizar Hayat v. The State 2011 SCMR 429 distinguished.

Khan alias Khani and another v. The State 2006 SCMR 1744; Wazir Gul v. The State 1975 SCMR 289; Mushtaq alias Shaman v. The State PLD 1995 SC 46 and Miss. Najiba and another v. Sultan alias Sattar and 2 others 2001 SCMR 988 ref.

Amil Shiri and another v. The State PLD 2004 SC 371; Mushtaq alias Shaman v. The State PLD 1995 SC 46; Khan alias Khani and another v. The State 2006 SCMR 1744; Ali Imran v. The State 2002 PCr.LJ 1856; Wazeer Gul v. The State 1975 SCMR 289 and Miss. Najiba and another v. Sultan alias Sattar and 2 others 2001 SCMR 988 rel.

Akhtar Ali Channar for Appellant.

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

Muhammad Yousuf for the Complainant.

YLR 2017 KARACHI HIGH COURT SINDH 58 #

2017 Y L R 58

[Sindh]

Before Salahuddin Panhwar, J

Mirza SHAKIR BAIG---Plaintiff

Versus

Miss IFFAT CHUGHTAI and others---Defendants

Suit No.208 of 2015, decided on 22nd March, 2016.

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

----S. 12---Contract Act (IX of 1872), Ss. 65, 36, 37, 17, 10 & 55---Suit for specific performance of contract---Interim order restraining creation of third party interest---Effect---Fraud---Interim order restraining the creation of third party interest with regard to suit property was in field---Contention of plaintiff was that alleged agreement to sell was void---Validity---Act of vendor would not prejudice the right of vendee to seek enforcement of his rights if vendor had title even at later stage or recovery of compensation if vendor failed in perfecting title of vendee---Injunctive order did not hold the status of a 'decree' and same would not make an agreement void unless vendor was not competent to enter into a contract at such time or was subsequently declared so---Defendants had no intention to deceive the plaintiff and they were ready to perform their part subject to payment of balance consideration---Silence or concealment of some immaterial facts would not qualify the term 'fraud'---Defendants were competent to enter into contract and agreement to sell---Non-disclosure of injunctive order was not sufficient to declare the agreement 'void'---Defendants communicated their intention to the plaintiff to perform their part while requesting to place draft deeds for execution thereof but plaintiff avoided the same---Plaintiff avoided to pay balance consideration---Plaintiff was not entitled for restoration of earnest money---Defendants had admitted the claim of plaintiff to the extent of agreement and they were ready to perform their obligations---Suit of plaintiff was decreed subject to deposit of remaining consideration amount within one month failing which earnest money deposited with Nazir would be returned to the defendants---If defendants failed to make title of plaintiff perfect on payment of remaining consideration amount then earnest money should be restored to the plaintiff.

Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Ltd., PLD 2010 Kar. 17; Rashid Naseem through Attorney v. Mrs. Amina Fahim and others PLD 2009 Kar. 390; Islamic Republic of Pakistan and others v. Muhammad Afzal and others 1989 MLD 4951; Qureshi Muhammad Anwar and 6 others v. S.A. Qureshi and 3 others 1994 CLC 733; Eastern Federal Union Insurance Company Ltd. v. Bawany Industries Ltd., Karachi 1979 CLC 321; Sultan v. Muhammad Ramzan and another 1999 YLR 797; Mustafa Kamal and others v. Daud Khan and others 2009 SCMR 221; Muhammad Sabir v. Maj (Rtd.) Muhammad Khalid Naeem Cheema and others 2010 CLC 1879; 2011 SCMR 837 and PLD 1976 SC 258 ref.

Pakistan Industrial Development Corporation v. Aziz Qureshi PLD 1965 (W.P.) Kar. 202; West Pakistan Tanks Terminal (Pvt.) Ltd. v. Collector (Appraisement) 2007 SCMR 1318; Sheikh Allah Rakha v. Sheikh Muhammad Yousaf 1990 MLD 1592; Bashir Hussain Siddiqui v. PAN Islamic Steamship Co. Ltd. PLD 1967 Kar. 222 and Elahi Bakhsh v. Muhammad Iqbal 2014 SCMR 1217 rel.

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

----S. 17---'Fraud'---Ingredients---Main ingredient of "fraud" is the intention to deceive or to induce a person by misrepresentation or active concealment to enter into a contract on a false belief.

PLD 1977 Lah. 1377 rel.

----S. 36---Term---'Void'---Meaning.

Meaning of term 'void' cannot be expanded to one's own suiting or choices but it shall remain confined to those acts/ transactions which are absolutely 'null' that is to say incapable of ratification or confirmation and of no effect whatever because no rights and liabilities can be attached or arise out of a void contract. Act of concealment of pendency of suit or passing of an injunctive order may operate as 'voidable' and not 'void'.

Asim Iqbal for Plaintiff.

Khawaja Shamsul Islam for Defendants.

YLR 2017 KARACHI HIGH COURT SINDH 105 #

2017 Y L R 105

[Sindh (Larkana Bench)]

Before Anwar Hussain, J

INAYAT alias INAYATULLAH---Applicant

Versus

The STATE and 2 others---Respondents

Crl. Misc. Appln. No.S-155 of 2015, decided on 16th May, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 190(b), 173,& 561-A----Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Cognizance of offence by Magistrate/ Issuance of non-bailable warrants of arrest---Application under S.561-A, Cr.P.C. for quashment---Plea of alibi to be considered by Trial Court after recording of evidence---Police, after investigation of the case, placed the name of accused in Column No. II of the Challan; however, the Magistrate, disagreeing with the Challan and taking cognizance of the offence, issued non-bailable warrants of arrest of the accused and sent the case to the Court of Session for trial---Accused had been nominated in the FIR with a specific role of making fire upon the deceased---Accused's name had been placed in Column II of the Challan on basis of only his plea of alibi---Plea of alibi would be considered by the Trial Court after recording of the evidence---Opinion of police, even otherwise, was not binding on the Court---Magistrate, after scanning the entire material placed before him, had found the same sufficient to take cognizance of the offence against the accused---Impugned order, therefore, called for no interference---Application under S. 561-A, Cr.P.C was dismissed accordingly.

2010 SCMR 1861 and 2003 PCr.LJ 135 rel.

Faiz Muhammad Larik for Applicant.

Munir Ahmed Abbasi, D.D.P.P. for Respondents.

YLR 2017 KARACHI HIGH COURT SINDH 122 #

2017 Y L R 122

[Sindh]

Before Naimatullah Phulpoto, J

AADIL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.202 of 2014, decided on 7th September, 2015.

Penal Code (XLV of 1860)---

----S.324---Attempt to commit qatl-i-amd---Appreciation of evidence---Evidence of injured witness, was quite reliable for the reason that he had no motive to falsely implicate the accused---Evidence of said witness was fully corroborated by motive and medical evidence---Not a single circumstance had been pointed out to create doubt in the prosecution case---Defence theory, which was an afterthought, was not substantiated by accused at trial---Case of acquitted accused persons, was quite distinguishable from the case of accused---No role was assigned to acquitted accused persons, they were acquitted by the Trial Court---Sufficient evidence was available against accused to connect him with the commission of offence---Accused was sole perpetrator of the offence with which he was charged---Accused had been specifically nominated in the FIR---Injured prosecution witness, whom accused had caused injuries, appeared before the court and implicated the accused, his evidence was supported by the medical evidence---Prosecution, had succeeded in establishing guilt of accused beyond any reasonable doubt---No infirmity, illegality or irregularity, on the part of Trial Court had been pointed out by counsel for accused, warranting any interference by High Court---Appeal was dismissed, in circumstances.

Abdul Khaliq and another v. State 2002 SCMR 1232 rel.

Ms. Tabassum Hashmat for Appellant.

Abrar Ali Khichi, A.P.G. for Respondent.

YLR 2017 KARACHI HIGH COURT SINDH 138 #

2017 Y L R 138

[Sindh]

Before Nazar Akbar, J

MUHAMMAD ALI ZUBAIR---Plaintiff

Versus

SABIRA KHATOON and another---Defendants

Suit No.1021 of 2014, decided on 12th January, 2015.

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

----S. 12---Civil Procedure Code (V of 1908), O. XXIII, R. 3 & O. VII, R. 11---Suit for specific performance of agreement to sell---Compromise---Cause of action---Power-of-attorney---Rejection of plaint---Scope---Executant of power of attorney died prior to the execution of agreement to sell---Effect---Agreement was not validly entered into by and between the parties after the death of principal---Said agreement to sell was not enforceable at law even if contesting parties were ready and willing to abide by its terms---Sub-attorney who claimed to have entered into an agreement of sell with the attorney had not invited objections on entering into agreement of sale of suit property---Even (present) plaintiff after entering into agreement of sale with the sub-attorney had not issued any public notice in newspapers for inviting any objection from public-at-large for transfer of title of suit property---Had such effort been made, legal heirs of the deceased executant of power-of-attorney could have warned the plaintiff before making any further payment of suit property---Search certificate of suit property was not obtained from the office of Sub-Registrar of the properties concerned---Defendant had already breached promise with the plaintiff---Broken promise by the compromising parties could not be endorsed by the court---Application for compromise of suit was liable to be dismissed---No cause of action existed for filing of suit against the defendant---Cause of action shown in the plaint was a false and collusive statement of plaintiff and defendant---Plaintiff had attempted to obtain a compromise decree from the court---Defendant had never refused to perform her part of contract---When cause of action had ceased to exist, provisions of O. VII, R. 11, C.P.C. would attract and plaint was liable to be rejected---Suit for specific performance was liable to be rejected once defendant had conceded that he was ready and willing to perform his part of contract---Nazir of the court could not be allowed to perform part of contract under circumstances---Suit had become infructuous and plaint was liable to be rejected---Both the suit and compromise application were dismissed with cost of Rs. 100,000/- to be jointly and severally borne by the plaintiff and defendant---Said cost should be paid within specified period and if the same was not paid, Nazir of the court should take step for recovery of cost including attachment of movable and immovable properties of plaintiff and defendant---Member Inspection Team of High Court was directed to examine the record and if any criminal case was made out, he should initiate or cause to initiate criminal proceedings against plaintiff and defendant in accordance with law.

Diamond Rubber Mills v. Pakistan Television Corporation Ltd. and 2 others 1989 CLC 1989 rel.

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

----O. VII, R. 11---Rejection of plaint---Scope---Jurisdiction of civil court to exercise its authority to adjudicate between the parties would co-exist with the "cause of action" to settle the grievance of plaintiff against the defendant on his/her denial to accept/acknowledge certain rights of plaintiff---No suit could be filed without a "cause of action" and if at all such suit was filed, plaint should be rejected for want of cause of action---If cause of action had ceased to continue after filing of suit, nothing was left for the court to exercise its authority.

----S. 201---Agency, termination of---Scope---Sub-power of attorney stands terminated on the death of principal.

Zafarul Islam v. Mrs. Azra Malik PLD 1991 Kar. 377 rel.

(d) Power-of-attorney---

----Unregistered power of attorney was of no legal consequences for alienation of immovable property.

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

----Ss. 2 (21) & Art. 48 (e) of Shed. I---Power of attorney---General power of sub-attorney purported to be used was written on stamp paper of Rs. 1,000/- giving power/authority to transfer/sale of immovable property worth Rs. 1,40,00,000/- was not duly stamped to alienate immovable property of principal---Said power of attorney did not convey any authority to the sub-attorney to transfer property---Power-of-attorney, besides being compulsory registerable should have been sufficiently stamped with the stamp duty for transfer/alienation of immovable property.

Naseer Ahmed for Plaintiff (absent).

Murtaza Hussain for Defendant No.1 (absent).

Nemo for Defendant No.2.

YLR 2017 KARACHI HIGH COURT SINDH 164 #

2017 Y L R 164

[Sindh]

Before Abdul Maalik Gaddi, J

NAJMA SULTANA through Attorney---Petitioner

Versus

ANJUMAN JAMIAT-UL-AKHWAN through Attorney and 4 others---Respondents

C.Ps. Nos. S.1945, S-1946 to S-1655 of 2015, decided on 15th June, 2016.

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

----S. 15---Qanun-e-Shahadat (10 of 1984), Art. 115---Ejectment of tenant---Denial of relationship of landlord and tenant by the tenant---Scope---Tenants were put into possession by the landlord and they paid rent for the same---Once a person had accepted another as his landlord and entered into possession of the premises, he could not be allowed to challenge title of the landlord---Relationship of landlord and tenant, therefore, existed between the parties---No illegality, irregularity, infirmity or jurisdictional defect had been pointed out in the impugned orders passed by the courts below---Tenants were directed to vacate the premises within 60 days and handover its vacant possession to the landlord---Constitutional petition was dismissed in circumstances.

Syed Ghulam Hyder Shah alias Umaz Shah and 4 others v. Mst. Bibi Amirunnissa and 4 others PLD 2011 Kar. 183; Usman Pirzada v. The Additional District and Sessions Judge, Lahore and 7 others 1985 MLD 549; Mst. Ashraf Begum v. Sh. Muhammad Siddique and another 1986 SCMR 187; Muhammad Yousuf v. Alaf Din 1985 SCMR 458; Syed Mehmood Hussain v. Raza Shah and 2 others 2006 CLC 629; Mst. Anis Bano and 3 others v. Mst. Rabia 1987 CLC 775; Habib Bank Limited v. Zelins Limited and another 2000 SCMR 472; Muhammad Kashif Kamal Siddiqui v. Mirza Farooq Baig 1990 MLD 1009; Abdul Hameed Naz and 7 others v. Mst. Razia Begum and 4 others 1991 SCMR 1530; Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064; Hakim Ali v. Muhammad Salim and another 1992 SCMR 46; Messrs Firdous Carpet (Pvt.) Ltd. v. Moti-ur-Rehman and another 2001 YLR 1339; Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCMR 1925; Bashir Ahmed v. Messrs Roots School Network through Administrator/Owner and others 2011 SCMR 290 and Syed Khursheed Ali Jaffery v. Jamiluddin Siddiqui 1993 CLC 2511 ref.

Kalimullah v. Amin Hazin and others 1975 SCMR 77; Mst. Seema Begum v. Muhammad Ishaq and others PLD 2009 SC 45; Muhammad Qasim v. VIth Additional District and Sessions Judge, Karachi (Central) and 2 others 2008 CLC 446 and Syed Khursheed Ali Jaffery v. Jamiluddin Sididqui 1993 CLC 2511 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court--- Scope--- Constitutional petition could not be a substitute either of a revision or a second appeal---Constitutional petition should be entertained if a case was made out to the effect that Trial Court and first appellate authority had made an order without jurisdiction or there was a case of lack of jurisdiction or findings were so perverse that it were not sustainable on established principles of appreciation of evidence or specific provision of law had been violated---High Court could not appreciate facts of the case while exercising constitutional jurisdiction.

Shakeel Ahmed and another v. Muhammad Tariq Farogh and another 2010 SCMR 1925 rel.

Nazar Iqbal for Petitioner.

Mehmood Anwar Hussain Baloch for Respondent No.1.

YLR 2017 KARACHI HIGH COURT SINDH 185 #

2017 Y L R 185

[Sindh]

Before Naimatullah Phulpoto and Aftab Ahmed Gorar, JJ

MUHAMMAD QASIM alias UMAIR---Appellant

Versus

The STATE---Respondent

Spl. Anti-Terrorism Appeals Nos.37 to 39 and Confirmation Case No. 5 of 2008, decided on 8th March, 2016.

Penal Code (XLV of 1860)---

----Ss. 302, 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Qatl-i-amd, kidnapping or abduction for ransom, common intention, act of terrorism---Appreciation of evidence---Counsel for accused persons did not press appeals on merits, but had only prayed for converting the death sentences awarded to accused persons into imprisonment for life keeping in view the youth of accused persons---Contention of counsel for accused persons that youth of accused was mitigating circumstance to convert the death sentence to the imprisonment for life had no force---Accused had never raised the plea of their young ages as mitigating circumstance before Police during investigation or before the Trial Court---Accused persons had failed to produce documentary evidence regarding their exact ages---Ground for mitigation of sentence, could not be pressed into service on the basis of something which had never been proved on the record---No benefit could be extended in favour of accused persons for their young ages---Accused persons had kidnapped a boy for ransom, and committed his murder and did not deserve any leniency in sentence---Trial Court had examined each and every piece of evidence carefully and appreciated evidence according to settled principles of law---Death sentence in a murder case was a normal penalty, and the courts while diverting towards lesser sentence, should have to give detailed reasons---No reason, existed to interfere in the conclusion arrived at by the Trial Court in conviction and death sentence awarded to accused persons---Reference for confirmation of death sentence was answered in affirmative, in circumstances.

Muhammad Saleem v. The State 2001 SCMR 536; Faisal Aleem v. The State PLD 2010 SC 1080; Muhammad Yar v. The State 1997 SCMR 401; Muhammad Mumtaz Qadri v. The State PLD 2016 SC 13; Hamid Mahmood and another v. State 2013 SCMR 1314 and Dadullah and another v. The State 2015 SCMR 856 ref.

Abdul Rasheed Nizamani for Appellants.

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

Choudhry Muhammad Iqbal for the Complainant.

YLR 2017 KARACHI HIGH COURT SINDH 207 #

2017 Y L R 207

[Sindh]

Before Irfan Saadat Khan and Zafar Ahmed Rajput, JJ

COMMANDING OFFICER, NAVAL STORES DEPOT. and 2 others---Appellants

Versus

MOHAMMAD FAYAZ and another---Respondents

H.C.A. No.154 of 1996, decided on 31st May, 2016.

Specific Relief Act (I of 1877)---

----S. 10---Recovery of immovable property/ money---Auction of scrap on weight basis---Plaintiffs were auction purchasers of scrap weighing 14,12,061 kilograms against a sum of Rs. 7,60,000---Grievance of plaintiffs was that when they had lifted 7,23,600 kilograms of scrap, defendant declined to allow lifting of remaining scrap---Plaintiffs sought recovery of outstanding scrap and in alternative, damages amounting to Rs. 30,00,000---Single Judge of High Court decreed the suit in favour of plaintiffs to the extent of Rs. 3,70,544---Validity---Single Judge of High Court had rightly held that auctioned scrap was sold on 'weight basis' and not on 'as on whereas basis'---Plaintiffs were rightly found to be entitled to proportionate compensation for quantity of scrap not supplied to them who failed to adduce evidence that they were entitled to a decree for more than Rs. 3,70,544 being actual cost of scrap not supplied to them---Division Bench of High Court declined to interfere in judgment passed by the Single Judge of High Court and rejected claim of plaintiffs to that extent---Intra court appeal was dismissed accordingly.

Muhammad Imran Khan v. Ehsanullah 2016 MLD 418; Muhammad Akhan v. Muhammad Sultan 2015 CLD 1951; NBP v. General Tyre and Machinery 1996 CLC 79; Muhammad Siddique v. Mst. Noor Bibi PLD 2016 Lah. 140; Kazim Ali v. Liaquat Ali 2016 PCr.LJ 487; Bakht Zada v. Saifur 2015 YLR 2125; Bismillah Textile v. HBL 2008 CLC 504; Allah Dino v. Haji Ahmed PLD 2006 Kar. 148; Bank of Punjab v. Muhammad Ramzan 2006 CLD 539; Mumtaz H. Khan v. Muhammad Hussain 2001 CLC 946; Ahmed Miaji v. Eakun Ali Munshi PLD 1961 Dacca 259; P.K. Basak v. Gossen and Co. PLD 1957 Dacca 233; Daulat Ali and others v. Ahmad and others PLD 2000 SC 792 and Messrs Muhammad Amin Muhammad Bashir Limited and another v. Pakistan and others 2000 CLC 1559 ref.

Asim Mansoor Khan, Deputy Attorney General for Appellants.

Farooq Rashid for Respondents.

YLR 2017 KARACHI HIGH COURT SINDH 227 #

2017 Y L R 227

[Sindh (Hyderabad Bench)]

Before Anwar Hussain, J

MUHAMMAD RAFIQUE and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.S-1015 of 2015, decided on 11th November, 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---Further inquiry---Names of accused persons did not appear in the FIR, despite the fact that they were residing in the Mohalla of the complainant party, and were very much known to them---Prosecution witnesses were also residing in the same Mohallah, who did not give names of accused persons at the time of registration of FIR, but disclosed their names subsequently at the time of recording of S. 161, Cr.P.C. statement---Prosecution witnesses, who were brother and friends of the complainant, had not deposed; as to with whose firing they sustained injuries, particularly and specifically in respect of accused persons---Accused party had also lodged FIR under S.324, P.P.C., against complainant party, and he was on bail---Case requiring further inquiry, accused were granted bail, in circumstances.

Aslam Pervaiz Khan for Applicants.

Syed Meeral Shah, D.P.G.

Complainant present in person.

YLR 2017 KARACHI HIGH COURT SINDH 240 #

2017 Y L R 240

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

MANTHAR---Petitioner

Versus

PROVINCE OF SINDH through Secretary Home Department and 8 others---Respondents

C.P. No.S-3495 of 2014, heard on 11th September, 2015.

Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Plea was that police had entered into the house of petitioner and had taken away household articles---Constitutional jurisdiction was discretionary and discretion could not be exercised as a matter of course but it had to be exercised with care and caution---Factual controversy could not be resolved without recording of evidence---Relief claimed by the petitioner was beyond the scope and ambit of Art. 199 of the Constitution---Constitutional petition was not maintainable which was disposed of in circumstances.

Rizwanullah v. Registrar/President, Cooperative Societies, N.W.F.P., Peshawar and 3 others PLD 2003 Pesh. 203 rel.

YLR 2017 KARACHI HIGH COURT SINDH 262 #

2017 Y L R 262

[Sindh]

Before Sajjad Ali Shah and Shaukat Ali Memon, JJ

ARABIAN GULF ENTERPRISES (PVT.) LTD. through Chief Executive---Petitioner

Versus

PROVINCE OF SINDH through Secretary Land Utilization Department, Karachi and 3 others---Respondents

Constitutional Petition No.D-3740 of 2012, decided on 22nd December, 2014.

(a) Easements Act (V of 1882)---

----S. 64---Constitution of Pakistan, Art.199--- Constitutional petition---Maintainability---Lease of land---Violation of terms of lease---Cancellation of lease---Scope---Plot was leased out in favour of petitioner for commercial development including construction of five star hotel but the same was not constructed in terms of lease and lease was cancelled---Contention of petitioner was that five star hotel could not be constructed due to law and order situation in the city---Validity---Present use of subject land was in violation of terms of lease granted to the petitioner---Consideration/justification for granting lease of plot on such a low price was to attract foreign investment by construction of a five star hotel---One of the most valuable property of the Province was being misused perhaps with the connivance of some of the officials of Revenue Department---Permission to misuse the subject land in violation of terms of lease was allowed by the authorities---If licensee without any fault on his part was evicted by the grantor before he had fully enjoyed the licence, he would be entitled to recover compensation from the grantor---Petitioner would only suffer damages on account of withdrawal of permission which even otherwise was against the terms and conditions of the lease---Constitutional petition was not maintainable which was dismissed, in circumstances---Copy of order of High Court was sent to the Chairman NAB to look into the matter to ensure that there was no corruption or corrupt practice involved while allowing the petitioner to violate the terms of lease.

Mir Ghulam Abid Khan v. Pakistan through Secretary and another 2000 CLC 443 and Abdul Ghaffar Bhundi v. The Federation of Pakistan and another 2006 PTD 670 ref.

(b) Easements Act (V of 1882)---

----S. 64---Licensee's right on eviction---Scope---If licensee without any fault on his part was evicted by the grantor before he had fully enjoyed the licence, he would be entitled to recover compensation from the grantor.

Muhammad Ali A. Hakro for Petitioner.

Ahmed Pirzada for Board of Revenue along with Ghulam Shabbir Shaikh, Law Officer, Board of Revenue and Muhammad Khan Rind, ADC-II South for Respondents.

YLR 2017 KARACHI HIGH COURT SINDH 288 #

2017 Y L R 288

[Sindh]

Before Faisal Arab and Riazat Ali Sahar, JJ

Sardar MUHAMMAD ASHRAF KHAN---Petitioner

Versus

PROVINCE OF SINDH through Provincial Police Officer and 6 others---Respondents

Constitutional Petition No.D-1802 of 2011, decided on 31st October, 2012.

Penal Code (XLV of 1860)---

----Ss. 489-F, 420 & 506-B----Dishonestly issuing cheque; cheating and dishonestly inducing delivery of property---Quashment of proceedings---Stay of criminal proceedings during pendency of civil litigation---Permissibility---Accused had been granted bail to the extent of the amount of the dishonoured cheque---Accused was claiming a huge sum of money in the suit with regard to the partnership business and in the written statement, the complainant had not claimed any amount against the accused---Accused had denied issuance of the cheque---Accused had also alleged that he had been forcibly ousted from the partnership business, in spite of the injunctive order issued in the suit, against which a contempt application was pending---Accused had also filed another suit for cancellation of the cheque on the ground that the same contained his forged signatures---Pleadings of the complainant were silent on the fact as to against what claim the accused had issued the cheque---Criminal liability, depended entirely on adjudication of the civil claim, for which the civil litigation was pending, for which the present criminal proceedings could be stayed instead of quashing the same---High Court, therefore, directed the Trial Court to adjourn the criminal proceedings sine die until the said civil suits were finally adjudicated upon and the rights and obligations of the accused were decided---Constitutional petition was disposed of in circumstances.

1992 PCr.LJ 110; 2006 PCr.LJ 1900; 2009 CLD 237 and 2009 SCMR 141 ref.

1982 SCMR 988 rel.

Ms. Shazia Ahmed Hanjrah for Petitioner.

Amir Mansoob Qureshi for Respondent No.7.

YLR 2017 KARACHI HIGH COURT SINDH 297 #

2017 Y L R 297

[Sindh]

Before Muhammad Iqbal Kalhoro, J

Messrs GARDEN AUTOS through Managing Partner---Petitioner

Versus

LADY SUGHRA BEGUM HIDAYATULLAH through L.Rs. and 2 others---Respondents

C.P. No.S-829 of 2002, decided on 31st May, 2016.

Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---High Court while exercising constitutional jurisdiction had to confine only to inquire into a question whether or not the courts below while trying the case had acted in accordance with law---When High Court considered that courts below had acted without lawful authority, writ of certiorari should be granted.

2000 SCMR 903; PLD 2001 Pesh. 42; 2006 SCMR 152; PLD 1987 SC 447; PLD 1982 Kar. 188; PLD 1980 Kar. 126; 1985 CLC 332; 1988 CLC 2056; 1997 MLD 833; 1988 CLC 272; 1984 CLC 1073; 1989 CLC 757; 1993 CLC 2380; 2012 SCMR 254; PLD 1974 SC 351; PLD 1982 SC 79 and 1968 SCMR 734 ref.

Rahim Shah v. The Chief Election Commissioner of Pakistan and another PLD 1973 SC 24 ref.

Shaffat Hussain for Petitioner.

Abadullah Munshi for Respondent No.1

Nemo for Respondent No.2.

YLR 2017 KARACHI HIGH COURT SINDH 308 #

2017 Y L R 308

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh, J

MOHAMMAD RAFIQUE---Applicant

Versus

GUL MOHAMMAD and others---Respondents

Civil Revision Application No.119 of 1997, decided on 14th April, 2016.

Islamic-law---

----Pre-emption---Talbs, performance of---Proof---Requirements---Right of pre-emption with regard to property situated in Cantonment area---Scope---Right of pre-emption was a feeble right---Evidence for exercise of such right being oral was required to be direct and confidence inspiring and duly supported by the witnesses---Suit property was commercial and no right of pre-emption was enforceable with regard to such property---Vendee was not stranger for the plaintiff and on this score alone suit was liable to be dismissed---No right of pre-emption existed with regard to property situated in Cantonment area---Pre-emptor was bound to establish and prove the requirements of two demands i.e. Talb-i-Muwathibat (jumping demand) and Talb-i-Ishhad---Evidence of pre-emptor was not in line with his pleadings---Material contradictions with regard to acquiring knowledge of sale and performing Talb-i-Muwathibat and Talb-i-Ishhad were on record which could not be ignored---Pre-emptor had failed to prove the performance of Talb-i-Muwathibat and Talb-i-Ishhad in circumstances---Appellate Court had not committed any illegality while setting aside the judgment and decree passed by the Trial Court---Revision was dismissed in circumstances.

Government of N.W.F.P. v. Said Kamal Shah PLD 1986 SC 360; M. R. Sons v. Junaid Associates (Pvt.) Ltd. PLD 1990 Kar. 387; Shahnawaz v. Ali Nawaz 2010 YLR 1388 and Ahmed Raza Thaheem v. Ghulam Mohiuddin 2014 CLC 1615 distinguished.

Subhanuddin v. Pir Ghulam PLD 2015 SC 69; Dr. Pir Muhammad Khan v. Khuda Bukhsh 2015 SCMR 1243; Khyber Khan v. Amanullah Khan 2007 SCMR 1036; M. R. Sons v. Junaid Associates (Pvt.) Ltd. PLD 1990 Kar. 387 and Atta Hussain Khan v. Ghulam Rasool Khan 1985 MLD 1130 rel.

Jhamat Jethanand for Applicant.

Raja Khan for Respondent No.1.

YLR 2017 KARACHI HIGH COURT SINDH 325 #

2017 Y L R 325

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

MOHAMMAD ANEES---Appellant

Versus

ABDUL HAMEED and 3 others---Respondents

Cr. Acquittal Appeal No.43 of 2015, heard on 28th September, 2013.

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

----Ss. 506, 448, 447 & 34----Illegal Dispossession Act (XI of 2005), Ss.3 & 4--- Criminal Procedure Code (V of 1898), Ss.417(2-A)---Criminal intimidation; house trespass; criminal trespass; common intention---Appeal against acquittal---Appreciation of evidence---Power of Magistrate to acquit accused at any stage---Complainant, having already filed a direct complaint under Illegal Dispossession Act, 2005 against the accused, which was still subjudice before the court, had also lodged the FIR with ulterior motive only to compel the accused to vacate the shop---Complainant had concealed all material facts in the FIR regarding the dispute over the shop, and he, being tainted with malice, had malafidely twisted the material facts---Allegations regarding causing of kicks and fist blows to the complainant's son were neither supported by medical evidence nor any independent witness---No probability of conviction of the accused, therefore, existed, and the remaining trial would be a futile exercise and wastage of precious time of the court---Appeal against acquittal was dismissed accordingly.

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

----S. 249-A----Power of Magistrate to acquit accused at any stage---Object and scope---Magistrate is empowered to dispose of any criminal case under S. 249-A, Cr.P.C. after hearing the prosecutor judiciously and minutely examining of entire material of the prosecution case, including FIR, statement of witnesses recorded under S. 161, Cr.P.C., Mashirnamas and the other available material---Court, having come to the conclusion that no possibility of conviction of the accused existed for the alleged offence, should exercise its powers under S. 249-A, Cr.P.C. to save its time by avoiding the said futile exercise.

Abdul Hakeem Sangi for Appellant.

YLR 2017 KARACHI HIGH COURT SINDH 341 #

2017 Y L R 341

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD SADIQ KHAN---Plaintiff

Versus

Mst. TEHZEEB KHANUM and 6 others---Defendants

Suit No.1400 of 2011, decided on 2nd February, 2016.

(a) Suit for damages---

----Benami transaction---Nothing was on record with regard to 'motive/reason' to purchase suit property in the name of defendant who was wife of plaintiff---Plaintiff had failed to establish stated ingredients of benami transaction to substantiate his plea---Original title document of suit property was with the defendant---Nothing was on record to show as to which act and omission of defendants resulted in causing damages to the plaintiff---Mere claim of "sustaining loss" was not sufficient unless it was established that any act or omission had resulted into causing injury to the plaintiff---Plaintiff was bound to prove particular act of defendant causing mental shock, pressure, physical torture and social disgrace which had not been proved in the present case---Suit was dismissed in circumstances.

Qureshi Noor Hussain v. Ghulam Jan PLD 1984 Pesh. 86; Pahloomal Motiram v. Abdul Quddus Behari and 7 others PLD 1971 Kar. 250; Fatahuddin v. Zarshad 1973 SCMR 248; Zaheer Ahmad v. Government of Sindh 1999 MLD 2881; Muhammad Aziz Khan v. Muhammad Hanfi 2012 CLC 1521; Daulat Ali v. Ahmad PLD 2000 SC 792; Naseer Ahmad v. Asghar Ali 1992 SCMR 2300; S. Iqbal Ahmad v. Jawaid Iqbal 2011 CLC 29; Sher Muhammad v. Muhammad Sharif PLD 1984 Lah. 117; Mst. Nasira Ansari v. Mst Tahira Begum 2007 CLC 92; Abdul Majeed and others v. Amir Muhammad 2005 SCMR 577; Abdul Ghafoor and others v. Mukhtar Ahmed Khan and others 2006 SCMR 1144; Sahib Noor v. Feroz Khan 1992 MLD 2563; Abdul Hameed v. Shamasuddin PLD 2008 SC 140; Jamal Din v. Syed Altaf Hussain Shah and others 2005 MLD 1351; Muhammad Hanif v. Province of Punjab 2007 CLC 1309; Muhammad Bashir, and others v. Muhammad Ashraf and others 2004 PLC (C.S.) 361 = 2004 SCMR 279; Lt. Muhammad Sohail Anjum Khan v. Abdul Rasheed Khan 2003 MLD 1095 and Mehfooz-ur-Rehman and 4 others v. Mst. Riffat Ahad and 2 others 2007 MLD 382 ref.

Halima v. Muhammad Kassam 1999 MLD 2934; Muhammad Nawaz Minhas v. Surriya Sabir Minhas 2009 SCMR 124 and Ghulam Rasool v. Nusrat Rasool PLD 2008 SC 146 rel.

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

----S. 42---Suit for declaration---Requirements---Locus standi and legal character were mandatory requirements to maintain a suit for declaration.

----Ingredients---Ingredients to prove benami transaction were the possession, the source of payment of money, the possession of original document and the reason for 'benami' transaction.

(d) Words and phrases---

---'Owner'---Meaning.

Black's Law Dictionary (Eight Edition) rel.

Sardar M. Ejaz for Plaintiff.

Iftikhar Jawed Kazi for Defendants Nos. 2 and 3.

YLR 2017 KARACHI HIGH COURT SINDH 365 #

2017 Y L R 365

[Sindh]

Before Irfan Saadat Khan and Zafar Ahmed Rajput, JJ

ALTAF HUSSAIN---Appellant

Versus

AFTAB AHMAD---Respondent

H.C.A. No.94 of 1994, decided on 24th May, 2016.

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

----S. 41---Suit for partition---Purchase and construction of property---Proof---Benami transaction---Plaintiff claimed that he had purchased and constructed the suit property jointly along with his brother, the defendant; therefore, he was entitled to own and possess half of the property---Trial Court dismissed the suit---Validity---Plaintiff had admitted non-existence of any agreement between him and the defendant prior to the purchase of the plot of the land about giving amount to the defendant for purchase of the plot; that he had no proof available with him with regard to handing over any amount to the defendant for purchase of the property and for construction of the house, alleging that the amounts in questions had been paid in cash; that he had no knowledge as to the mode of payment to the owner of the plot for the purchase; that he did not remember either the person who had signed the sale deed on behalf of the owner of the plot and the amount of consideration mentioned in the sale deed; that all documents including receipts, etc. (for purchase of the plot) had been kept by the defendant and not by him; that he had no document in his possession with regard to obtaining the loan from the House Building Finance Corporation for construction of the house, as file of the same had been maintained by the defendant; that he had no knowledge as to the name of the contractor who had constructed the property; that he also did not remember the different stages of construction as to which portion of the house had been constructed first; that all utility meters were in the name of the defendant and that he did not remember as to when the house had been rented out---Bank statement of the defendant had proved that the amount of the purchase consideration had been paid from his account, which fact had also been endorsed by the Bank Manager in his evidence---Receipts about the construction of the house were in the name of the defendant---Elder brother of both the parties had deposed that the property had been purchased by the defendant and the entire cost of the construction of the house had been borne by the defendant, and that defendant alone had supervised the construction of the house, and that the plaintiff had never stayed in the house---Defendant had deposed that he had purchased the plot in the joint name to show his love and affection towards his brother/plaintiff, and the plaintiff had not spent a single penny either for the purchase or for the construction of the property---Defendant had produced all the relevant documents to prove that the property had been in his exclusive use---Brother-in-law of the defendant had deposed that he had advanced certain amounts from time to time to the defendant for the construction of the house---Contractor, who had constructed the house, had deposed that he had started work on the instructions of the defendant alone, and the defendant had supervised the entire construction process, and that all the funds had been provided by the defendant---Plaintiff, in view of the said depositions and material available on the record, was only a benamidar of the defendant, as the entire purchase amount and the cost of the construction had been borne by the defendant---Impugned judgment and decree were, therefore, maintained---Appeal was dismissed in circumstances.

Muhammad Saleem Khan for Appellant.

Khalid Javed for Respondent.

YLR 2017 KARACHI HIGH COURT SINDH 405 #

2017 Y L R 405

[Sindh]

Before Syed Muhammad Farooq Shah, J

ALI HASSAN through L.Rs. and 6 others---Appellants

Versus

KAUSURI BEGUM and another---Respondents

IInd Appeal No.2 of 2000, decided on 23rd May, 2016.

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

----S. 100---Second appeal---Maintainability and grounds---Second appeal only lay on the ground of error of law, or error in the procedure which affected the decision of the courts below on merits---Impugned decisions, being contrary to law, were based on substantial error or defect in the procedure, as the evidence recorded by the incompetent court had been considered by the subsequent court having jurisdiction, which action of the court was nothing but coram non judice---Conflicting findings of the courts below were based on misreading and non-appraisal of the evidence.

Abdul Rashid v. Bashrian and another 1996 SCMR 808 rel.

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

----S. 42---Suit for declaration---Main-tainability---Possession as consequential relief (being inevitable) not claimed---Effect---Suit, was not maintainable, as the plaintiff had sought declaration without claiming consequential relief of possession when the defendant was claimed to have been in possession of the suit property---In absence of any existing right to the suit property and the relief claimed being already time barred, the suit was not maintainable within the ambit of S. 42 of Specific Relief Act, 1877.

PLD 2002 SC 403 and 1969 DCL 416 (424 F & G) ref.

----O. VII, R. 11---Return of plaint---Proceedings of court without pecuniary jurisdiction not judicial proceedings, and evidence taken in such proceedings could not be used in retrial---Plaint had been returned for presentation thereof before the court having (pecuniary) jurisdiction---Plaint, having been returned, the suit, for all intent and purposes, was to be treated as a fresh suit and not merely a continuation of the old proceedings in the former suit---Plaintiff was not barred from filing a fresh suit---In the present case, the court having no pecuniary jurisdiction had transferred the suit to competent court instead of returning the plaint as provided under O. VII, R. 10, C.P.C.---Such order of transferring the suit to a competent court, was a nullity.

(1935) 153 IC 53; 1980 CLC 589 and 1995 CLC 130 ref.

PLD 1981 Kar. 277; AIR 1931 Madras 575 and 1980 CLC 589 rel.

Badar Alam for Appellant.

Nemo for Respondents.

YLR 2017 KARACHI HIGH COURT SINDH 424 #

2017 Y L R 424

[Sindh (Sukkur Bench)]

Before Aqeel Ahmed Abbasi and Muhammad Faisal Kamal Alam, JJ

ABDUL HAQ and another---Petitioners

Versus

PROVINCE OF SINDH through Chief Secretary and 9 others---Respondents

C.P. No.D-846 of 2014, decided on 26th April, 2016.

Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court--- Scope--- Constitutional jurisdiction could not be invoked in the matters where adequate and efficacious remedy had been provided under the law---Disputed claim of title could not be decided without recording of evidence which exercise could not be undertaken by the High Court under constitutional jurisdiction.

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

David Lawrence for Petitioner.

Shahryar Imdad Awan, Assistant Advocate General Sindh and Shafique Ahmed Leghari, State Counsel, for Official Respondents.

Aftab Ahmed Shar, Advocate, representing Taluka Bar Mirwah for Respondent No.11.

YLR 2017 KARACHI HIGH COURT SINDH 453 #

2017 Y L R 453

[Sindh]

Before Nazar Akbar, J

BASHIR AHMED through Special Attorney---Applicant

Versus

Mst. FATIMA BEGUM and 3 others---Respondents

R.A. No.173 of 2010 and C.P. No.S-1320 of 2011, decided on 29th September, 2016.

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

----S. 42---Suit for declaration---Contention of plaintiff was that he was owner of suit property---Suit was dismissed concurrently---Validity---Plaintiff had been paid sale consideration of suit property---Plaintiff had failed to question the authenticity or any illegality in the process of transfer and execution of lease of suit property in favour of defendant---Plaintiff had not furnished the details of fraud and misrepresentation in his evidence---Defendant was owner of suit property and plaintiff being tenant failed to pay rent of the same---Plaintiff had utilized four different courts for twelve years to prolong his illegal and unlawful possession of suit property against the lawful owner---Suit filed by the plaintiff was frivolous and vexatious---Revision was time barred which was dismissed with cost of Rs. 50,000/---Plaintiff was directed to vacate the premises within thirty days and in case he failed to vacate the same then executing court should issue writ of possession with permission to break up locks without further notice.

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

----S. 115--- Revision--- Limitation---Limitation for revision was ninety days.

----S. 21---Constitution of Pakistan, Art. 199--- Constitutional jurisdiction---Scope---Eviction proceedings---Appeal---Scope---Issues of fact once decided after recording of evidence could be subjected to scrutiny only by the appellate forum provided under the relevant laws---Sindh Rented Premises Ordinance, 1979 was a special law and only one appeal had been provided against eviction---Remedy of second appeal or revision could not be invoked by the party aggrieved of an order of the appellate forum under the law---Concurrent findings of courts below could not be interfered with in constitutional jurisdiction except jurisdictional defect in the proceedings--- Constitutional jurisdiction of High Court could not be invoked as a substitute of revision or second appeal by a party aggrieved by the final appellate order.

Muhammad Arshad Tariq for Applicant (in R.A. No.173 of 2010).

Ashiq for Respondents Nos. 1 and 2 (in R.A. No.173 of 2010).

Nemo for Respondents Nos. 3 and 4 (in R.A. No.173 of 2010).

Muhammad Arshad Tariq for Petitioner (in C.P. No.1320 of 2011).

Munir-ur-Rehman for Respondent No.1 (in C.P. No.1320 of 2011).

Nemo for Respondents Nos. 2 and 3 (in C.P. No.1320 of 2011).

YLR 2017 KARACHI HIGH COURT SINDH 478 #

2017 Y L R 478

[Sindh]

Before Zulfiqar Ahmad Khan, J

Messrs HABIB INDUSTRIES (PVT.) LTD.---Appellant

Versus

Messrs STATE LIFE INSURANCE CORPORATION OF PAKISTAN---Respondent

IInd Appeal No.39 of 2010, decided on 10th October, 2016.

Limitation Act (IX of 1908)---

----Arts. 110 & 116---Suit for recovery of arrears of rent---Limitation---Rent became recoverable when civil petition for leave to appeal was disposed of by the Supreme Court---Petition before the Supreme Court was disposed of on 30-11-2000 and suit for recovery of rent was filed on 10-03-2001 which was not time barred---Article 116 of Limitation Act, 1908 would be applicable to all the cases in which contract was in writing---Suit for compensation for breach of a contract of rent would fall within Art. 116 rather than 110 of the Limitation Act, 1908---Second appeal was dismissed with cost.

Mst. Saba and another v. Mrs. Particia and 2 others 1996 CLC 348 distinguished.

PLD 1968 SC 230; Attaullah Malik v. Rashid and another PLD 1972 Kar. 273; Nabin Chandra Ganguly v. Munshi Mander AIR 1927 Patna 248 and Tricomdas Cooverji Bhoja v. Gopi Nath Jiu Thakur AIR 1916 PC 182 rel.

M. Azhar Faridi for Appellant.

Mukesh Kumar Khatri for Respondent.

YLR 2017 KARACHI HIGH COURT SINDH 501 #

2017 Y L R 501

[Sindh]

Before Arshad Hussain Khan, J

Messrs GUL CONSTRUCTION through Authorized Attorney---Plaintiff

Versus

PROVINCE OF SINDH through Chief Secretary and 3 others---Defendants

Suit No.1392 of 2016, decided on 15th August, 2016.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr.1 & 2---Interim injunction, grant of---Lowest bid---Non-awarding of contract---Mala fide---Proof---Plaintiff was a construction company and participated in bidding for contract to construct Bus Rapid Transit System---Plea raised by plaintiff was that it was the lowest bidder but due to mala fide the contract was not awarded to it---Validity---Plaintiff alleged mala fide on the part of authorities for not accepting bid and not awarding contract to plaintiff despite being the lowest, which mala fides could only be proved after leading evidence---Project in question was of national importance and procuring agency was saddled with a duty to scrutinize financial health of bidders and to take measures for safeguarding public money---Main object of requiring a bidder to furnish performance guarantee from a scheduled Bank was to ensure that in the event of default such Bank guarantee could be encashed without any let or hindrance to prevent causing any loss to procuring agency---Prima facie, it did not appear that authorities committed such acts for which plaintiff had an arguable case to the extent of grant of injunction---Plaintiff who sought equitable and discretionary relief from Court in the form of injunction, under O. XXXIX, Rr. 1 & 2, C.P.C., had not only to establish that he had a prima facie case but he had also to show that he had balance of convenience on his side and that he would suffer irreparable injury/ loss unless protected during the pendency of suit---Court was required to take into consideration whether question of balance of inconvenience or irreparable loss to party seeking such relief co-exist or not---Plaintiff failed to show that basic ingredients for grant of injunction were present in its application for injunction---Application was dismissed in circumstances.

Messrs Iqbal and Sons J/V as Engineering v. City District Government and others SBLR 2012 Sindh 1483 and Fateh Muhammad Agha and another v. City District Government Karachi and 5 others 2009 CLC 1104 ref.

Sub. (Retd.) Muhammad Ashraf v. District Collector Jhelum and others PLD 2002 SC 706; Tabassum Shehzad v. I.S.I. and others 2011 SCMR 1886; Sultan and others v. Province of Sindh and others 2004 CLC 392; Muhammad Kashan v. Coca Cola Export Corporation through Chief Executive and 3 others 2015 CLD 1513; Puri Terminal Ltd. v. Government of Pakistan 2004 SCMR 1092 and Murghub Siddiqui v. Hamid Ahmed Khan and 2 others 1974 SCMR 519 rel.

Ghulam Haider Shaikh for Plaintiff.

Ziauddin Junejo, Additional Advocate General and Ms. Fouzia Sikandar, Law Officer SPPRA for Defendants Nos. 1 to 4.

YLR 2017 KARACHI HIGH COURT SINDH 533 #

2017 Y L R 533

[Sindh (Sukker Bench)]

Before Shahnawaz Tariq, J

AIJAZ HUSSAIN and 4 others---Applicants

Versus

MUHAMMAD PANNAH---Respondent

Cr. Misc. Application No.578 of 2015, decided on 26th March, 2016.

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

----S. 395---Criminal Procedure Code (V of 1898), S.561-A---Dacoity---Inherent power of High Court---Quashment of FIR---Complainant alleged that accused entered his house by showing weapons and stole away jewelry and other valuable articles---FIR was not registered by police resultantly private complaint was filed regarding which Trial Court took cognizance---Accused filed petition under S.561-A, Cr.P.C. for quashing of FIR---Perusal of FIR and record disclosed that complainant had levelled series of false allegations against accused due to enmity---Complainant party and its witnesses in their depositions failed to corroborate each other---Witnesses who were said to have opened the doors of the house after the alleged dacoity were not residents of same locality---Complainant instead of approaching the Justice of Peace filed private complaint which showed his mala fide---Complainant party, in circumstances, did not approach the court with clean hands---FIR was ordered to be quashed.

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

----S. 190---Cognizance of offences in complaint case---Parameters---Court might examine entire material, motive and previous animosity between parties, while keeping direct complaint on record and lengthy litigation, agony and financial constraints being suffered by an innocent person---If complaint reflected malicious, mischievous and ulterior motives on the part of complainant, such pretended, false and frivolous complaints could be buried at their inception.

----S. 561-A---Inherent power of High Court---Scope---Section 561-A, Cr.P.C. conferred wide and ultimate powers to High Court to exercise its jurisdiction where such orders were necessary to give effect to any order under Cr.P.C. or to preclude misapplication of process or to assure dispensation of justice.

1996 SCMR 325 and 1982 SCMR 215 rel.

Ghulam Murtaza Korai and Qurban Ali Malano for Applicants.

Sardar Ali Shah Jillani for Respondent.

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

YLR 2017 KARACHI HIGH COURT SINDH 557 #

2017 Y L R 557

[Sindh (Hyderabad Bench)]

Before Ghulam Qadir Leghari, J

JALEEL AHMED---Appellant

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner and 8 others---Respondents

Election Appeal No.21 of 2016, decided on 24th August, 2016.

(a) Sindh Local Councils (Election) Rules, 2015---

----R. 61(b)---Election petition---All the contesting candidates were made party---Service of copy of petition---Mandatory provision--- Violation--- Scope--- Petitioner had made all the contesting candidates as party in the petition---No document i.e postal receipt and courier service receipt had been produced to substantiate that petitioner had sent copy of election petition to all the contesting candidates before filing petition---Requirement of law having not been fulfilled, election petition was rightly dismissed in circumstances.

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

----S. 55(3)---Sindh Local Councils (Election) Rules, 2015, R.62(3)---Civil Procedure Code (V of 1908), O.VI, R.15---Election petition, verification of---Mandatory requirement---Election petition had to be verified in accordance with civil law, however, penal consequences having been prescribed, the provision of R.62(3), Sindh Local Councils (Election) Rules, 2015 was mandatory---Verification on oath of the contents of an election petition was provided under S.55(3) of the Representation of the People Act, 1976 and every election petition and Schedule or Annexure to petition was to be signed by the petitioner and verified in the manner laid down in the Civil Procedure Code, 1908---Civil Procedure Code, 1908 contained such provision under O.VI, R.15, which required the verification of pleadings on oath---Where the said legal provisions had not been complied with, Election petition was rightly dismissed.

Zafar Abbas v. Hassan Murtaza PLD 2005 SC 600 rel.

----S. 55(3)---Sindh Local Councils (Election) Rules, 2015, R.62(3)---Civil Procedure Code (V of 1908), O.VI, R.15---Election petition, contents of---Affidavit annexed with election petition---Effect---Petitioner had contended that affidavit was annexed with the petition and be treated as part and parcel of the main petition and taken as verification and that contents of the petition had not been repeated for the sake of brevity---Validity---Petitioner had not stated in his affidavit that the contents of his petition were true to the best of his knowledge, information and belief---Contents of affidavit, therefore could not be treated as "verification"---Election petition was rightly dismissed.

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

----O. VI, R.17---Election petition---Amendment---Validity---Nothing was available on record to show that petitioner moved application before the Election Tribunal for such amendment---Said deficiency could not be allowed to fill the lacunae after the lapse of period of limitation---Election petition was rightly dismissed.

Ghazanfar Abbas Shah v. Khalid Mehmood Sargana 2015 SCMR 1585 rel.

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

----S. 52--- Election petition---Maintainability---Objection was raised with regard to maintainability of election petition for non-compliance of mandatory provision---Election Tribunal was to decide preliminary objection and if the objection was sustainable, Election Tribunal was left with no option but to dismiss the petition.

Zia ur Rehman v. Syed Ahmed Hussain 2014 SCMR 1015 rel.

Syed Ghazi Gulab Jamal v. Presiding Officer, Election Tribunal and others 2015 CLC 953; Zia ur Rehman v. Syed Ahmed Hussain 2014 SCMR 1015; Inayatullah v. Syed Khursheed Ahmed Shah 2014 SCMR 1477 and Ghazanfar Abbas Shah v. Khalid Mehmood Sargana 2015 SCMR 1585 ref.

K.B. Lutuf Ali Leghari for Appellant.

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

YLR 2017 KARACHI HIGH COURT SINDH 582 #

2017 Y L R 582

[Sindh]

Before Mohammad Shafi Siddiqui, J

Mrs. SARA AHMED SOOMRO---Applicant

Versus

Mrs. SARWAT UN NISA and 4 others---Respondents

J.M. No.10 of 2009, decided on 28th March, 2016.

Civil Procedure Code (V of 1908)---

----O.XXIII, R.3---Compromise on behalf of counsel---Decree, setting aside of---Scope---Counsel, in the present case had been authorized to plead and act in the case and present pleading/cross objections, to deposit or withdraw documents or money in or from the court, to withdraw or compromise the cause or submit to arbitration any difference or dispute that might arise, to employ/appoint or nominate any other counsel or substitute on his behalf---Petition for setting aside of decree was dismissed in circumstances.

ANSW Enterprises v. Askari Commercial Bank Limited 2001 PSC 120 ref.

Muhammad Yousuf Siddiqui's case PLD 2005 SC 705 rel.

Abid S. Zuberi for Petitioner.

Zeeshan Abdullah for Respondents Nos. 2 and 3.

YLR 2017 KARACHI HIGH COURT SINDH 594 #

2017 Y L R 594

[Sindh]

Before Ahmed Ali M. Sheikh and Muhammad Saleem Jessar, JJ

AMJAD ALI---Appellant

Versus

The STATE---Respondent

Criminal Special Anti-Terrorism Jail Appeals Nos.46, 47, 32 and 33 of 2015, decided on 5th December, 2016.

(a) Criminal trial---

----Conviction---Quantum of punishment---Lenient view---Object and scope---Purpose of sentence to maintain a balance thereby attempting to bring peace, harmony and tranquility in the society---Purpose and object of inflicting conviction was either to have reformation or deterrence---Wrongdoer if reformed through punishment could bring fruit for the society---Concept of reformation ,however, did not permit the courts to let hardened criminals---Hardened criminals could not be released in the name of leniency, which would seriously prejudice the other fold of object of punishment---Said fold of awarding punishment was to make a hardened criminal an example for others so that sense prevailed in minds of masses that a criminal would receive his due if he committed a crime---Reformation should not be introduced at the cost of peace, harmony and tranquility of the society as a whole; it was better to have an evil restrained/confined rather to leave him to make whole society a hell.

Dadullah v. State 2015 SCMR 856 rel.

(b) Criminal trial---

----Conviction---Quantum of punishment---Lenient view---Object and scope---Tilt of the scale should always be in favour of concept of reformation when it related to first offender and teenager---Such offender was not recognized as desperate or hardened offender.

----Ss. 384, 385, 386 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7-A---Extortion, putting person in fear of injury in order to commit extortion, extortion by putting a person in fear of death or grievous hurt, common intention and act of terrorism---Appreciation of evidence---Sentence, reduction in---First offender---Prosecution case was that accused persons made telephone call to the complainant and demanded Rs. 2,00,000 as Bhatta under threat of killing---Complainant expressed his inability to pay such huge amount---Accused persons lastly agreed to receive Rs. 30,000 as extortion money---Accused persons who were arrested red-handed at the spot submitted that they would not press the appeals on merits but prayed for taking lenient view as they were first offenders and sole bread earners of their respective families---Validity---Prosecution did not dispute the claim of accused persons to be first offenders---Said circumstances could be taken as one of the mitigating circumstances for reducing the sentence---Appeal was dismissed while maintaining the conviction but sentence of imprisonment awarded to accused were reduced to the extent, they had already undergone.

Qasim Ijaz v. The State and another 2016 MLD 48; Muhammad Tariq and 2 others v. The State and another 2015 PCr.LJ 1326; Mujeebur Rehman v. The State 2014 PCr.LJ 1761; Ghulam Murtaza v. The State PLD 2009 Lah. 362 and Ameer Zeb v. The State PLD 2012 SC 380 ref.

Naizuddin v. The State 2007 SCMR 206 and Ghulam Muhammad v. The State 2004 YLR 1087 rel.

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

----Ss. 384, 385, 386 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7-A---Extortion, putting person in fear of injury in order to commit extortion, extortion by putting a person in fear of death or grievous hurt, common intention and act of terrorism---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---FIR, revealed that accused persons had allegedly sent a box of sweets to complainant containing a chit and bullet and had demanded on cell phone Bhatta---Prosecution did not bother to examine any official witness so as to prove as to which of the accused persons used the sim/cell phone for demanding Bhatta---Motor cycle recovered from the possession of accused person was neither made as case property nor produced before Trial Court---Prosecution witnesses did not specifically deposed during trial about alleged weapon, extortion money, Box of sweets with bullet and chit and motor cycle---Case properties in question had not been exhibited properly nor were shown to the accused at the time of their examination-in-chief in terms of S. 342, Cr.P.C.---Prosecution official witnesses had not produced their departure entry to show their movement and the purpose for such movement---Such glaring features of the prosecution evidence were sufficient to take lenient view against the accused persons---Appeal was dismissed while maintaining the conviction but sentence of imprisonment awarded to accused were reduced to the extent, they had already undergone.

Ahmed Nawaz for Appellant (in Criminal Special Anti-Terrorism Jail Appeals Nos.46 and 47 of 2015).

Muhammad Iqbal Awan, Assistant Prosecutor General for Respondent (in Criminal Special Anti-Terrorism Jail Appeals Nos.46 and 47 of 2015).

Zulfiqar Ali Shaikh for Appellant (in Criminal Special Anti-Terrorism Jail Appeals Nos.32 and 33 of 2015).

Muhammad Iqbal Awan, Assistant Prosecutor General for Respondent (in Criminal Special Anti-Terrorism Jail Appeals Nos.32 and 33 of 2015).

YLR 2017 KARACHI HIGH COURT SINDH 609 #

2017 Y L R 609

[Sindh]

Before Shahnawaz Tariq, J

MUHAMMAD AMIN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.531 of 2016, heard on 14th June, 2016.

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

----S. 497----Penal Code (XLV of 1860), S. 462---Tampering with auxiliary or distribution pipelines of natural gas---Bail, grant of---Accused was alleged to have used electricity generator by committing theft of sui gas from the service line---Investigation Officer failed to produce any tangible evidence to the effect that the accused was the owner of the plot or that any gas meter was installed in his name, or he was tenant of the plot or owner of the factory---Neither owner of the plot nor attesting witnesses of the alleged rent agreement had been cited as witnesses in the Challan---Recording of the prosecution witness was essential in absence of evidence regarding commission of alleged theft---Neither any gas meter had been found installed on the premises of the factory in the name of the accused nor pipeline allegedly connected with the service gas line had been recovered from the spot at the time of the raid at the factory---Electricity generator had not been taken into custody despite the availability of the police with the raiding party---Accused was no more required for further investigation---Trial Court had not thus far framed charge against the accused---Section 462, P.P.C. was punishable with sentence up to 10 years and not less than 5 years with fine---Court, while examining the question of bail, had to consider the minimum aspect of the sentence provided in the Schedule of Cr.P.C for the alleged offence---All witnesses cited in the Challan were officers of the complainant department and the entire material had been collected by the Investigation Officer; hence, there was no apprehension of tampering with the prosecution evidence---Bail application was allowed accordingly.

Zaigham Ashraf v. The State 2016 SCMR 16 rel.

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

----S. 497----Bail---Principles---Court, while considering the question of bail, has to prudently scan the material available on record---Court was not to deprive an accused by being influenced from the sensitivity of offence or capital punishment provided for the alleged offence.

Salahuddin Khan Gandapur, Sabir Shah, Syed Samiullah Shah and Peer Darwesh for Applicant.

Malik Sadaqat Khan Special Prosecutor SSGC.

Ali Hyder Saleem, A.P.G. for the State.

YLR 2017 KARACHI HIGH COURT SINDH 619 #

2017 Y L R 619

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar, J

MIRZO KHAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-460 of 2016, decided on 26th August, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.161 & 34---Prevention of Corruption Act (II of 1947), S.5(2)---Taking illegal gratification, common intention---Bail, grant of---Only allegation against accused was that tainted amount of Rs. 10,000 was recovered from the chapel of accused by the raiding party, supervised by Magistrate---Raiding party had not witnessed the passing of money from complainant to accused, nor they had heard conversation allegedly made between accused and complainant before passing the alleged gratification---After accepting alleged illegal gratification, accused had kept the money in the chapel, was not believable---Raiding party had advance information, and the place of recovery was public thoroughfare, but none from the public was associated to witness the recovery proceedings---Section 161, P.P.C., was bailable, while S.5(2) of Prevention of Corruption Act, 1947, carried maximum punishment upto seven years---Said offences did not fall within the ambit of prohibited clause as contained under S.497(1), Cr.P.C.---Accused being a government servant, question of his absconding or tampering with prosecution evidence, would not arise---Essential ingredient of "trap" being lacking in the case, accused was admitted to bail, in circumstances.

1999 PCr.LJ 503; 2000 PCr.LJ 1591; 2000 PCr.LJ 1903; 2001 PCr.LJ 2062; 2013 PCr.LJ 1051; 2012 MLD 1945; 2014 YLR 1385 and Muhammad Ashraf v. The State 1997 SCMR 181 ref.

Hameedullah Dahri for Applicant.

Saleem Khan, D.D.P.P. for Respondent.

YLR 2017 KARACHI HIGH COURT SINDH 629 #

2017 Y L R 629

[Sindh (Hyderabad Bench)]

Before Abdul Rasool Memon, J

Mst. BHAGUL---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-1185 of 2014, decided on 6th July, 2015.

Criminal Procedure Code (V of 1898)---

----Ss.498 & 497(2)---Penal Code (XLV of 1860), Ss. 302, 337-J & 34---Qatl-i-amd---Throttling and poisoning the deceased---Pre-arrest bail, confirmation of---Case of further inquiry---Main allegation of throttling causing death of deceased was against the co-accused---Present accused was alleged to have stuffed something forcibly in the mouth of deceased and chemical analysis report revealed that no poison was detected from viscera's of the deceased---Case against accused required further inquiry and in such circumstances mala fide of complainant could not be ruled out---Ad-interim pre-arrest bail was confirmed accordingly.

Bashir Ahmed Almani for Applicant.

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

YLR 2017 KARACHI HIGH COURT SINDH 633 #

2017 Y L R 633

[Sindh]

Before Arshad Hussain Khan, J

CRESCENT GREENWOOD LTD.---Plaintiff

Versus

SEA LAND SERVICE INC., A SHIPPING COMPANY and another---Defendants

Suit No.1305 of 1998, decided on 29th September, 2016.

Civil Procedure Code (V of 1908)---

----O. XXIX, R.1---Suit filed by corporation---Authority to file suit---Plaintiff company did not file any resolution passed by Board of Directors to file suit for recovery of money---Validity---Law required that a person filing legal proceedings on behalf of company, must be authorized by Board of Directors in a duly convened meeting, according to Articles of Association of the company, failing which proceedings before any Court would be nullity---When law required doing of anything in a particular manner, then it must be done in that manner only and all other manners of doing such act could not be resorted---Person who filed suit did not possess authorization from Board of Directors to act and file suit on behalf of plaintiff, and the same was not maintainable---Suit was dismissed in circumstances.

1985 CLC 1720; PLD 1990 Kar. 156; PLD 1992 SC 291; 1994 CLC 1498; 1993 MLD 1841; PLD 1975 Kar. 647; 1985 CLC 1720; Abdul Rahim v. UBL PLD 1997 Kar. 62; Bashir v. Haji Suleman Goawala and Sons Ltd. 2010 CLC 191; Cargil Incorporated v. Trading Corporation of Pakistan 2010 CLC 420; Mst. Farooq Bibi v. Abdul Khaliq and others 1999 CLC 1358; Central Bank of India v. Syed Muhammad Abdul Jalil Shah and others 1999 CLC 671 and Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700 ref.

Khan Iftikhar Hussain Khan of Mamdot v. Messrs Ghulam Nabi Corporation Ltd. Lahore PLD 1971 SC 550; Messrs Razo (Pvt.) Ltd. v. Director Karachi City Region Employees Old Age Benefit Institution and others 2005 CLD 1208 and Hakim Ali v. Muhammad Saleem and others 1992 SCMR 46 rel.

Ishrat Zahid Alavi for Plaintiff.

Siddique Shahzad for Defendants.

YLR 2017 KARACHI HIGH COURT SINDH 661 #

2017 Y L R 661

[Sindh (Hyderabad Bench)]

Before Nadeem Akhtar and Khadim Hussain M. Shaikh, JJ

ABDUL GHAFFAR---Petitioner

Versus

PROVINCE OF SINDH through Secretary Local Government and 9 others---Respondents

C.P. No.D-215 of 2011, decided on 17th March, 2016.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Scope---Alternate remedy---Enforcement of agreement---Alternate remedy by way of filing suit for specific performance of agreement was available to the petitioner---Constitutional petition was not main-tainable in circumstances---Complicated questions of fact and law could not be determined while exercising constitutional jurisdiction---Such questions could only be determined by the competent court of jurisdiction on the basis of evidence to be adduced by the parties---Constitutional petition was dismissed in circumstances.

Ijaz Hussain Suleri v. The Registrar and another 1999 SCMR 2381 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court--- Scope--- Constitutional jurisdiction could only be exercised when there was no other adequate remedy.

Ishrat Ali Lohar for Petitioner.

Jhamat Jethanand for Respondents Nos. 2 and 3.

Nazeer Ahmed Bhatti for Applicants/Interveners.

Ashfaq Nabi Kazi, Assistant A.G.

YLR 2017 KARACHI HIGH COURT SINDH 674 #

2017 Y L R 674

[Sindh (Larkana Bench)]

Before Zafar Ahmed Rajput and Muhammad Iqbal Mahar, JJ

Sardar ZULFIQAR---Appellant

Versus

The STATE---Respondent

Crl. Jail Appeal No.D-54 of 2015, decided on 7th September, 2016.

Criminal Procedure Code (V of 1898)---

----Ss.427 & 227---Penal Code (XLV of 1860), Ss. 302, 324, 353, 337-A(i), 337-F(i), 337-F(iii) & 149---Anti-Terrorism Act (XXVII of 1997), S.25---Accused was found innocent and his name was placed in column No.2 of challan---Government had withdrawn prosecution against accused consequently Public Prosecutor filed application under S.494, Cr.P.C., which was allowed by Trial Court discharging the name of accused from the case---Said order was challenged but petition was withdrawn by counsel for complainant---Later on, Public Prosecutor filed application under S.227, Cr.P.C., for alteration of charge in result of which accused was declared absconder and sentenced in absentia for imprisonment for life---Trial Court was not competent to sit over the order passed by his predecessor without any fresh material, therefore, not only trial of accused as well as conviction was against the law as Public Prosecutor was allowed to withdraw from prosecution of accused---Appeal against conviction was allowed accordingly.

Shuhab Sarki and Asif Ali Abdul Razak Soomro for Appellant.

Muhammad Hanif Noonari for the Complainant.

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

YLR 2017 KARACHI HIGH COURT SINDH 692 #

2017 Y L R 692

[Sindh (Hyderabad Bench)]

Before Anwar Hussain, J

ABDUL GHAFFAR---Applicant

Versus

The STATE---Respondent

Cr. B.A. No.S-303 of 2016, decided on 27th June, 2016.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 201 & 34---Qatl-i-amd, causing disappearance of evidence of offence, common intention---Bail, grant of---Further inquiry---Accused was not nominated in FIR but was implicated through supplementary statement and on disclosure of co-accused---Allegation against the accused was that he and his co-accused committed murder of father of the complainant---Delay of more than three days in lodging FIR, had not been plausibly explained by the complainant which prima facie showed that FIR had been chalked out after due deliberations and consultations---Accused was implicated in case through supplementary statement and on a disclosure allegedly made by co-accused, which carried no weight unless corroborated by some other reliable evidence---Challan was submitted in the court but prima facie facts rendered the case against accused one of further inquiry in terms of S. 497(2) Cr.P.C.---Bail was granted accordingly.

2011 SCMR 161; 2004 YLR 2434 and PLD 2008 Kar. 1 rel.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 201 & 34---Qatl-i-amd, causing disappearance of evidence of offence, common intention---Bail, grant of---Principle of consistency---Co-accused was attributed same role in same circumstances, as that of accused, released on bail---Accused, was also to be released on bail on the basis of principle of consistency.

Ayaz Hussain Gopang for Applicant.

Khalid Hussain Surahio for the Complainant.

YLR 2017 KARACHI HIGH COURT SINDH 732 #

2017 Y L R 732

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar, J

HUSNAIN SHAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-268 of 2016, decided on 29th August, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Sindh Arms Act (V of 2013), S. 23(1)(a)---Possession of pistol without valid licence---Bail, grant of---Complainant-police official alleged that accused was required in a FIR and on spy information two persons were apprehended from pointed place---On personal search of present applicant/accused .12-bore pistol along with three live cartridges were recovered from him and he failed to produce any valid license---No ballistic or forensic opinion was available as to working condition of the pistol---Accused had been granted bail in main case and present case being off-shoot of same, accused deserved to be released on bail---Bail was granted accordingly.

Syed Tarique Ahmed Shah for Applicant.

Nadir Khan Pathan A.D.P.P. for Respondent.

YLR 2017 KARACHI HIGH COURT SINDH 741 #

2017 Y L R 741

[Sindh (Larkana Bench)]

Before Rasheed Ahmed Soomro, J

NAJAMUDDIN BHATTI and another---Applicants

Versus

The STATE---Respondent

1st Criminal Bail Application No.S-279 of 2016, decided on 1st August, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 161 & 34---Prevention of Corruption Act (II of 1947), S. 5(2)---Public servant taking gratification other than legal remuneration in respect of an official act, common intention, criminal misconduct by public servant---Bail, grant of---Allegation was that both accused-public servants received bribe from complainant---No tainted amount was recovered from first accused---Mashirnama disclosed that trap party reached after 15-minutes of alleged delivery and recovered Rs. 15000/- from table of second accused resultantly trap party did not see complainant handing over tainted money to second accused nor heard the conversation---Accused had taken the plea that they were victims of enmity because complainant's brother was served with notices for payment of government fees---Offence under Ss. 161, P.P.C. & 5(2) Prevention of Corruption Act, 1947 did not fall under prohibitory clause of S.497, Cr.P.C.---Accused were admitted to bail subject to furnishing of bail bonds.

Mohammad Sulleman v. The State 2013 PCr.LJ 1051 and Dr. Iftikhar Ahmed Seehar v. The State 2014 YLR 1385 rel.

Imtiaz Ahmed Bhatti for Applicant No.1.

Habibullah G. Ghouri for Applicant No.2.

YLR 2017 KARACHI HIGH COURT SINDH 756 #

2017 Y L R 756

[Sindh]

Before Ahmed Ali M. Shaikh and Rasheed Ahmed Soomro, JJ

ABDUL HAFEEZ and 2 others---Appellants

Versus

The STATE---Respondent

Spl. Criminal Anti-Terrorism Appeal No.47 of 2014, decided on 26th October, 2016.

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

----Ss. 385, 386 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7-A---Putting person in fear of injury in order to commit extortion, extortion by putting a person in fear of death or grievous hurt, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that three persons, one with pistol, came towards the complainant and directed him on the force of pistol to contact with the owner to arrange Rs.5,00,000/- as Bhatta---Accused persons contended that they made telephone call to the owner of the Farm House but he did not attend their call---Accused pushed the complainant and directed for arranging Rs.5,00,000/= as Bhatta, and extended threats to kill him, his owner and other persons of the Farm House in case of non-payment of bhatta---Evidence of complainant showed that without taking any safety measures, complainant and two prosecution witnesses had gone to search out the accused persons under the instructions of the owner of the Farm House knowingly that one of the accused was having pistol---Prosecution witnesses traced out the accused sitting in a hotel and informed the police---Police arrested the accused persons without any resistance within half an hour from lodging report to the police by complainant---Complainant neither in his statement before the police nor even at the time of deposing before the Trial Court either alleged element of restrain, fear of death or even instant hurt against the accused persons---No firing was made at the farm house by the accused persons---Alleged FIR was silent regarding names, role and act of accused persons---No chit/ document regarding Bhatta was recovered from the personal search of the accused persons---Element of fear was missing, in the present case, as the complainant and other employees made personal search of accused persons without any fear---Evidence of one of the prosecution witnesses showed that he was not present when accused persons came at the Farm House---One of the prosecution witness was not eye-witness and his evidence at the most could be treated as hearsay evidence---Circumstances of the case created doubt about the veracity of the prosecution story, benefit of which would resolve in favour of accused persons---Convictions and sentences recorded against accused persons by the Trial Court were set-aside in accordingly.

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

----Ss. 385, 386 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7-A---Criminal Procedure Code (V of 1898), S. 103---Putting person in fear of injury in order to commit extortion, extortion by putting a person in fear of death or grievous hurt, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---FIR was silent in respect of names of the accused persons---Material contradictions were found in the statements of the prosecution witnesses---Accused persons were arrested within half an hour after lodging FIR by the complainant---Such circumstances created serious doubt in the authenticity of alleged offence with which accused persons were charged, benefit of which would resolve in favour of accused persons---Conviction and sentence recorded against accused persons by the Trial Court were set aside.

(d) Criminal trial---

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

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Peer Syed Asadullah Shah, Abdul Sattar Balouch and Abdul Shakoor for Appellants.

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

YLR 2017 KARACHI HIGH COURT SINDH 769 #

2017 Y L R 769

[Sindh]

Before Ahmed Ali M. Shaikh and Muhammad Karim Khan Agha, JJ

NAYER BARI---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and 3 others---Respondents

C.P. No.D-4982 of 2014, decided on 28th April, 2016.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)---National Reconciliation Ordinance (LX of 2007), S.7---Criminal Procedure Code (V of 1898), S. 517---Restoration of proceedings---After promulgation of National Reconciliation Ordinance, 2007, petitioner filed application for restoration of his properties seized during investigation---Validity---Case of petitioner was reopened and amended charge was also framed---Order passed by Trial Court on petitioner's application, after termination of NAB proceedings against him in terms of S. 7 of National Reconciliation Ordinance, 2007, was rightly recalled and High Court declined to take any exception---Case property was not restored to petitioner in terms of S. 517, Cr.P.C. as any order passed by courts of law including order of discharge and acquittals recorded in favour of accused persons, as in the present case, as never to have existed in the eyes of law and of no legal effect---Constitutional petition was dismissed in circumstances.

Dr. Mobashir Hassan v. Federation of Pakistan PLD 2001 SC 1 rel.

M. Anwar Tariq for Petitioner.

YLR 2017 KARACHI HIGH COURT SINDH 804 #

2017 Y L R 804

[Sindh]

Before Nazar Akbar, J

KARACHI METROPOLITAN CORPORATION through Administrator---Applicant

Versus

ISLAMUDDIN and another---Respondents

Revision Application No.41 of 2010, decided on 2nd December, 2016.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Suit for declaration, injunction and damages---Concurrent findings of facts by the Courts below---Negative declaration---Damages---Onus to prove---Plaintiff claimed that plots in question did not belong to defendants and also claimed damages of general nature---Trial Court and Lower Appellate Court decided the suit and appeal in favour of plaintiff respectively---Validity---Burden of claim of Rs.10,00,000/- as damages on account of demolition of one shop was on plaintiff which he was required to discharge through positive evidence like market value of property demolished by defendants etc.---Plaintiff failed to even mention value of properties allegedly taken away of defendant at the time of demolishing of property---No evidence existed to quantify damages, if any, the award of damages to plaintiff was devoid of any legal and factual basis---Courts below did not read evidence and perused record in its true perspective---Plaint was ambiguous and was not maintainable as S.42(b) and (e) of Specific Relief Act, 1877, did not envisage negative declaration and / declaration of general nature in respect of immovable property in favour of unidentified persons who were not even before the Court---High Court set aside the findings of two Courts below as the same were suffering not only from misreading/non-reading of evidence and record but were also contrary to the relevant law---Revision was allowed in circumstances.

Muzaffar Khan v. Sanchi Khan and another 2007 SCMR 181 ref.

Ms. Maheen Asghar for Applicant.

Muhammad Wafi Khan Yousufzai and Masjood Ali Memon for Respondent No.1.

Nemo for Respondent No.2.

YLR 2017 KARACHI HIGH COURT SINDH 829 #

2017 Y L R 829

[Sindh]

Before Nazar Akbar, J

JAMIL AHMED---Applicant

Versus

NAZIR AHMED through Legal heirs and others---Respondents

Revision Applications Nos.250 and 251 of 2004, decided on 23rd September, 2016.

Specific Relief Act (I of 1877)---

----Ss. 42, 39 & 54---Suit for declaration cancellation of document and injunction---Title of ownership---Proof---Cross claims---Respondent filed suit for declaration and possession of suit property as owner by virtue of allotment order dated 27-3-1962, which allotment matured into registered lease deed dated 18-2-1987 conversely the applicant, sought declaration and cancellation of lease deed dated 18-2-1987--Trial Court as well as Lower Appellate Court concurrently decreed suit filed by respondent and dismissed that filed by applicant---Validity---Applicant in his plaint claimed his entitlement for lease on the ground that he had occupied suit property in year 1961 when it was lying vacant---By occupying property which was lying vacant, one could not acquire any right in such property, particularly when the property belonged to government institution---Such property had to be disposed of in accordance with law---Applicant made first application to Karachi Development Authority in year, 1980, without disclosing that as to under what circumstances he entered into property and despite the fact that he was facing rent case instituted against him by respondent, who held official allotment order of suit property issued by competent authority---Other document such as certificate of Justice of Peace issued in year, 1980, and electricity bills of year 1996, etc. did not confer any title better than allotment issued by competent authority in year, 1962 and subsequent registered lease deed by competent authority---Claim of applicant was frivolous and he was also guilty of abusing process of Court to perpetuate his illegal occupation over suit property for more than 25 years---High Court declined to interfere in concurrent findings of two Courts below---Revision was dismissed in circumstances.

S. Zahir Hussain Chishti for Applicant.

Anwar Ahmed for Respondents Nos.1 and 2.

YLR 2017 KARACHI HIGH COURT SINDH 851 #

2017 Y L R 851

[Sindh]

Before Arshad Hussain Khan, J

SHAMIM AKHTER and 6 others---Petitioners

Versus

CHAIRMAN EVACUEE TRUST PROPERTY GOVERNMENT OF PAKISTAN and 2 others---Respondents

R.A. No.32 of 2014, decided on 11th January, 2017.

Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----Ss.8 & 14---Evacuee property---Determination of---Scope---Concurrent findings of facts by two Courts below---Suit for declaration and injunction was filed by plaintiffs claiming that suit property was non-evacuee property and their mother was its real owner---Trial Court as well as Lower Appellate Court dismissed suit and appeal respectively filed by plaintiffs---Validity---Determination of status of property as evacuee trust property was within the exclusive domain of Chairman, Evacuee Trust Property Board and jurisdiction of courts was barred---Property in question was taken over by authorities vide gazette notification dated 15-7-1963 and such notification could not be challenged by plaintiffs before civil court in view of provisions of S. 14 of Evacuee Trust Property Board Act, 1975---Findings of both the courts below were on correct proposition of law---High Court did not find any infirmity or material irregularity in judgments passed by two courts which could warrant interference in revisional jurisdiction of High Court---Revision was dismissed in circumstances.

1992 SCMR 1313; 2007 SCMR 262 and PLD 2011 SC 126 rel.

PLD 1961 (W.P.) Kar. 589; PLD 1964 (W.P) Lah. 274; PLD 1978 Kar. 27; 2008 CLC 854; 1992 SCMR 21; 2000 MLD 100; PLD 2003 SC 505 and 1992 SCMR 1313 distinguished.

Shab Alam for Applicants.

Shahid Iqbal Rana for Respondents.

YLR 2017 KARACHI HIGH COURT SINDH 874 #

2017 Y L R 874

[Sindh]

Before Shahnawaz Tariq, J

QAMAR ZAMAN---Applicant

Versus

The STATE---Respondent

Cr. Bail Application No.810 of 2016, decided on 21st October, 2016.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c), 14 & 15---Possession and trafficking of narcotics, aiding, abetment or association in such offences---Bail, grant of---Further inquiry--Prosecution case was that accused was apprehended from the Airport's departure lounge and from his bag, narcotic drug was recovered---Complainant had a plenty of time after receiving information, to associate any private person to act as witness to maintain the transparency of the recovery of narcotic substance but he did neither make any effort to associate public nor any private witness prior to the interception of the accused---Such demeanor of the complainant in absence of plausible explanation, could not be ignored---Fact remained that case of accused called for further inquiry within the scope of S. 497(2), Cr.P.C.---Bail was allowed in circumstances.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 9(c)---Possession of narcotic---Bail, grant of---Further inquiry---Border line case between Ss. 9(b) & 9(c) of Control of Narcotic Substances Act, 1997---Accused was allegedly found in possession of narcotic substance---Complainant did not mention the specific shape of packing of recovered substance as to whether entire substance was packed in one or more packets---No detail of mode of weighing the recovered substance as to whether it was weighed with its packing or in its pure shape to assess its total weight---If the recovered substance was weighed along with its packing, the weight of recovered substance without the packing would be less---Attending circumstances suggested that case would fall within the ambit of S. 9(b) of Control of Narcotic Substances Act, 1997, in that eventuality, the case of accused was marginally higher bringing the case to border line case between clauses (b) & (c) of S. 9 of Control of Narcotic Substances Act, 1997---In such backdrop, the case of the accused, in circumstances, one of further inquiry falling within the purview of S.497(2), Cr.P.C.---Accused was allowed bail accordingly.

----S. 497(2)---Bail---Sentence, quantum of---Consideration at bail stage---While adjudging question of bail, court had to consider minimum aspect of the sentence prescribed for the alleged offence in Schedule.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c), 14 & 15---Possession and trafficking of narcotics, aiding, abetment or association in such offences---Bail, grant of---Further inquiry---Challan had been submitted and accused was no more required for further investigation---All prosecution witnesses were police officials and to procure their attendance was not a difficult task for the prosecution, and there was no apprehension of tampering with prosecution evidence---Accused was behind the bars for the last more than one year and during the said period, even charge had not been framed against the accused---Early commencement of trial was not expected in near future---Prosecution had not furnished any substance that accused was involved in cases of similar nature in past nor he was previous convict and there was no probability of his abscondance---Further detention of accused would not serve any useful purpose---Accused was allowed bail in circumstances.

2016 SCMR 1424; 2009 MLD 133; 2009 PCr.LJ 1273; 2014 YLR 188; 2014 YLR 632; PLJ 2012 Cr.C(Lahore) 174(DB) and PLJ 2012 Cr.C. (Lahore) 908 (DB) ref.

Gul Hassan Hub for Applicant.

Shafique Ahmed Special Prosecutor ANF for Respondent.

YLR 2017 KARACHI HIGH COURT SINDH 888 #

2017 Y L R 888

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar, J

ZULFIQAR ALI BALOCH---Appellant

Versus

PARKASH and 2 others---Respondents

Criminal Acquittal Appeal No.S-68 of 2014, decided on 8th November, 2016.

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

----Ss. 17(3) & 24---Criminal Procedure Code (V of 1898), S. 265(k)---Penal Code (XLV of 1860), Ss. 347, 504, 506(2) & 34---Haraabah, wrongful confinement to extort property, or constrain to illegal act, intentional insult with intent to provoke breach of the peace, criminal intimidation, common intention---Forum of appeal---Trial Court acquitted accused under S.265-K, Cr.P.C. from charges under Penal Code and Offences Against Property (Enforcement of Hudood) Ordinance, 1979---Appeal to High Court---Competence---Second proviso of S.24 of the Ordinance provided that an offence punishable under S. 9 or S. 17 of the Ordinance, 1979, shall be tried by a court of session and an appeal from order of acquittal shall lie to the Federal Shariat Court as well as against the order of sentence of imprisonment for a term exceeding two years---Word "order" in proviso (second) of S.24 of the Ordinance covered both order of conviction and that of acquittal---Appeal against acquittal filed in the High Court was not maintainable, therefore the same was returned to the appellant for its presentation to the competent forum.

2015 PCr.LJ 203; 1997 SCMR 1136; 2009 PCr.LJ 747; 1999 PCr.LJ 1761; 2012 PCr.LJ 1491 and 2005 SCMR 1544 ref.

Muhammad Khan v. The State 1987 PCr.LJ 1240; Fazal Din v. Taj Din PLD 1983 FSC 33 and Aijaz v. State 2016 PCr.LJ 130 rel.

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

----Preamble---Ordinance, for all intents and purposes, is a special law, therefore, the general law (Penal Code) on the subject would lean in favour of the Ordinance on the subject covered by the Ordinance---General law always give way to the special law.

----General Law always give way to the special law.

Muhammad Jamil Ahmed and Ishrat Ali Lohar for Appellant.

Inam Ali Malik for Respondents Nos. 1 and 2.

Shahid Ahmed Shaikh, Assistant Prosecutor General Sindh along with SIP Saleem Arain, on behalf of SHO A-Section, Latifabad, Hyderabad for the State No.3.

YLR 2017 KARACHI HIGH COURT SINDH 903 #

2017 Y L R 903

[Sindh]

Before Nadeem Akhtar and Arshad Hussain Khan, JJ

MUHAMMAD NAZIM---Petitioner

Versus

Messrs SOUND BUILDERS (PVT.) LTD. through Authorized Director and 3 others---Respondents

Constitutional Petition No.3270 of 2016, decided on 7th November, 2016.

Sindh Building Control Ordinance (V of 1979)---

----S.6---Construction of stairs in front of a shop by Builder---Contention of petitioner was that respondent/Builders had constructed stairs in front of his shop without any approved plan from the relevant Authority which had caused inconvenience---Validity---Stairs leading to basement had already been provided in the building which were being used---High Court observed that proper course was not adopted by the Builder to resolve the problem---Proposed revised plan ought to have been submitted to Building Control Authority seeking their prior approval instead of making illegal and unauthorized structural changes by cutting and damaging the roof/floor---Builder had not applied to the Building Control Authority for such structural changes nor had the same been approved by the Authority---Impugned stairs were liable to be removed and altered roof/floor was liable to be restored to its original condition---Builder was directed by the High Court to remove the impugned stairs and restore the roof of the basement and floor of the ground floor in its original condition---Building Control Authority was directed to comply with the order without fail within stipulated period---Constitutional petition was allowed in circumstances.

Ms. Fauzia Naz for Petitioner.

Abdul Wajid Wyne for Respondent No.1.

Sartaj Malgani along with, Amir Kamal Jafri, Deputy Director SBCA North Nazimabad, Karachi for Respondent No.2.

Chief Engineer KDA North Karachi Town and Karachi Municipal Corporation (called absent) for Respondents Nos. 3 and 4.

Asadullah Lashari, State Counsel.

YLR 2017 KARACHI HIGH COURT SINDH 922 #

2017 Y L R 922

[Sindh]

Before Nadeem Akhtar and Arshad Hussain Khan, JJ

Mst. FATIMA BEGUM---Petitioner

Versus

BASHIR AHMED and 3 others---Respondents

Constitutional Petition No.D-6378 of 2016, decided on 9th December, 2016.

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

----S.22---Executing court, duty of---Scope---Directions of High Court---Re-induction of ejected tenant---Non-execution of re-induction order of High Court---High Court had given further direction to executing court to issue writ of possession with aid of police if property was not vacated---Sole function of Executing Court was to execute the order of eviction passed against landlord in the proceeding which had attained finality, even if no directions had been given by High Court; and when specific directions were given by High Court with a specific time-frame, executing court was duty-bound to comply with such directions in letter and spirit---Detailed report/ explanation submitted by executing court showed that writ of possession had been executed by taking over possession of the subject property from landlord and handing over the same to the tenant---Constitutional petition was disposed of accordingly.

PLD 2006 Kar. 678 ref.

Son of Petitioner in person.

Miran Muhammad Shah, Addl. Advocate-General, Sindh.

YLR 2017 KARACHI HIGH COURT SINDH 946 #

2017 Y L R 946

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

AMEER ALI---Applicant

Versus

The STATE and 2 others---Respondents

Cr. Misc. Application No.S-398 of 2015, decided on 17th August, 2016.

Penal Code (XLV of 1860)---

----Ss. 302, 201, 506/2 & 34---Qatl-i-amd, disappearance of evidence of offence, or giving false information to screen offender, criminal intimidation, common intention---Prosecution case was that ailing brother of complainant was taken away by accused persons, being his relatives, for treatment at place "K"---Accused, after three months informed the complainant that his brother had expired during treatment---Complainant alleged that accused persons had committed murder of his brother due to property dispute---Complainant lodged FIR against the accused persons for committing murder of his brother---Investigation concluded that deceased died natural death---Judicial Magistrate did not approve the said police report and ordered for re-investigation of the case---Second Investigating Officer re-investigated the case and again submitted report under "C" Class, which was approved---Record showed that second Inquiry Officer recorded statement of the complainant, his witnesses, accused persons, neutral persons and neighbours by conducting open spot investigation---Investigating Officer collected medical record from the Hospitals, which emanated that deceased was suffering from advance stage of cancer---Investigating Officer concluded that deceased died natural death---Complainant neither produced any material regarding commission of murder of his brother by accused persons nor any medical record, which reflected that deceased was murdered and his death was not natural---Undeniably, deceased was suffering from advance stage cancer and was passing his last days and his natural death was expected in a near future, thus, there was no need to take him at place "K" to commit his murder by accused persons due to animosity going on between the parties over immovable property---Material contradictions, improvements and concealment of material facts were found in the application moved by complainant for registration of case, FIR, statements recorded under S. 161, Cr.P.C. and reports submitted by Investigating Officers---Demeanour of complainant by taking divergent stances as well as concealment of material facts throughout the proceedings reflected that complainant with ulterior motive, only to compel and pressurize the accused persons to compromise their dispute over immovable property upon his terms and conditions, had lodged a false and fictitious FIR---Complainant had failed to point out any illegality or irregularity committed by Investigating Officer---Criminal miscellaneous application, in circumstances was dismissed.

Parmanad for Applicant.

Rukhsar Ahmed M. Junejo for the proposed accused.

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

YLR 2017 KARACHI HIGH COURT SINDH 966 #

2017 Y L R 966

[Sindh]

Before Yousuf Ali Sayeed, J

Syed NAVEED AZIZ SHAH NOORI and 68 others---Plaintiffs

Versus

PROVINCE OF SINDH through Secretary (L&U) and 13 others---Defendants

Suit No.2122 of 2014, decided on 10th January, 2017.

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

----Ss. 42 & 54---Suit for declaration and injunction---Relief not claimed---Lease of plots---Plaintiffs were aggrieved of letter issued by Master Plan Department, cancelling layout plan of plaintiffs and sought suspension of the letter---Validity---Plaintiffs sought declaration of title regarding their ownership to land in question admeasuring 16.5 Acres compris-ing various specified plot numbers---Plaintiffs also sought entries dated 11-5-1977 and 27-12-2005 to be declared as genuine/legal of suit property viz 12 Acres out of 16 Acres---Plaintiff further sought direction to Revenue official to issue VF-II along with "No Objection Certificate" of sale and direction to concerned department/Registrar to lease out property/plots in favour of plaintiffs---Preservation of Layout Plan through suspension of letter was beyond the scope of the suit---High Court declined to grant any interim relief against letter in question---Application was dismissed in circumstances.

(b) Contempt of Court---

----Proceedings, initiation of---Principle---Committal for contempt of Court is to be resorted to sparingly and only where prima facie case of violation of an order of Court has taken place.

Roomi Iqbal for Plaintiffs.

Syed Naveed Aziz Shah Noori, attorney of Plaintiffs present in person.

Khalid Hussain Shaikh for Respondent No.5 along with Syed Nishtar Ali Rizvi, Deputy Director Master Plan.

Syed Zafar Ali Shah, for Defendant No.11.

H.A Rehmani for Defendant No.12.

YLR 2017 KARACHI HIGH COURT SINDH 980 #

2017 Y L R 980

[Sindh]

Before Syed Muhammad Farooq Shah, J

NAZAR HUSSAIN and 2 others---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.557 of 2016, decided on 15th August, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 365-B---Kidnapping, abducting or inducing woman to compel for marriage---Bail, refusal of---Prosecution story was that accused persons kidnapped the daughter of complainant, committed zina bil jabr and induced her to contract marriage with one of the accused---Accused were named in the FIR and specific role had been attributed to them---Victim lady had implicated the accused through her statement recorded under S. 164, Cr.P.C.; her statement regarding act of zina upon her had been established by the medico legal report---False implication of accused persons could not be determined at present stage---Accused persons, in circumstances, were not entitled for relief of bail which was refused accordingly.

Ajab Khan Khattak for Applicants.

Shahid Akhtar and Salman Khan for the Complainant.

Zafar Ahmed Khan, Assistant Prosecutor General, Sindh for the State.

YLR 2017 KARACHI HIGH COURT SINDH 994 #

2017 Y L R 994

[Sindh]

Before Arshad Hussain Khan, J

FARAZ ALAMGIR---Petitioner

Versus

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

C.P. No.S-1014 of 2016, decided on 21st December, 2016.

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

----Ss. 25 & 9 (1)---Custody of minor---Territorial jurisdiction---Determination---Words 'minor's ordinary place of residence" occurring in S.9(1), Guardians and Wards Act, 1890---Scope---Mother had gone abroad with the minor---Father moved petition for custody of minor in court at place K (Pakistan) but same was returned for want of territorial jurisdiction---Validity---Minor's "ordinary place of residence" had to be determined by finding out as to where the minor was "ordinarily residing" and whether removal of minor abroad was effected from that very place---New place to which minor might have gone/removed could become the ordinary residence only after the minor had settled down at that place for a reasonably long period---Word "ordinarily" would mean more than mere temporary residence---Courts below had overlooked the fact that wife was still in the wedlock of applicant and both the spouses and minor were Pakistan nationals and custody of minor was removed from the territorial jurisdiction of Pakistan in a deceitful manner---Courts below had erred in refusing to exercise their jurisdiction---Impugned orders passed by the courts below were set aside---Family Court was directed to rehear the case of applicant and decide the question of territorial jurisdiction afresh---Constitutional petition was disposed of in circumstances.

Mst. Shahista Bibi and another v. Superintendent, Central Jail, Mach and 2 others PLD 2015 SC 15 ref.

Major Muhammad Khalid Karim v. Mst. Saadia Yaqub and others PLD 2012

SC 66 and Anne Zahra v. Tahir Ali Khilji and 2 others 2001 SCMR 2000 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope.

Article 199 of the Constitution casts an obligation on the High Court to act in the aid of law and protects the rights within the framework of Constitution, and if there is any error on the point of law committed by the courts below or the tribunal or their decision takes no notice of any pertinent provision of law, then obviously High Court may exercise Constitutional jurisdiction subject to the non-availability of any alternate remedy under the law. This extra ordinary jurisdiction of High Court may be invoked to encounter and collide with extraordinary situation. This Constitutional jurisdiction is limited to the exercise of powers in the aid of curing or making correction and rectification in the order of the courts or tribunals below passed in violation of any provision of law or as a result of exceeding their authority and jurisdiction or due to exercising jurisdiction not vested in them or non-exercise of jurisdiction vested in them. The jurisdiction conferred under Article 199 of the Constitution is discretionary with the objects to foster justice in aid of justice and not to perpetuate injustice. However, if it is found that substantial justice has been done between the parties then this discretion may not be exercised. So far as the exercise of the discretionary powers in upsetting the order passed by the court below is concerned, High Court has to comprehend what illegality or irregularity and or violation of law has been committed by the courts below which caused miscarriage of justice.

Muslim Commercial Bank Ltd. through Attorney v. Abdul Waheed Abro and 2 others 2015 PLC 259 rel.

Mohsin Shahwani for Petitioner.

Ms. Yasmin Sultana for Respondents Nos. 1 and 2.

Nemo for Respondent No.3.

YLR 2017 KARACHI HIGH COURT SINDH 1007 #

2017 Y L R 1007

[Sindh]

Before Mahmood Ahmed Khan, J

Mst. FATIMA EHSAN ALI GHORI through Legal Heirs---Plaintiffs

Versus

Messrs STANDARD CHARTERED BANK (PAKISTAN) (PVT.) LTD.---Defendant

Suit No.480 of 1995, decided on 17th November, 2016.

Civil Procedure Code (V of 1908)---

----O.VII, R.2---Suit for recovery of money and damages---Proof---Plaintiff was maintaining her account with defendant Bank and her grievance was that in January 1991, she had remitted a sum of USD 40,000/- from abroad in her Bank account but it was illegally debited from her account---Bank admitted the transaction in the account of plaintiff and asserted that on instructions of plaintiff the amount was converted into Dollar Bearer Certificates---Validity---Normally, banking transactions for withdrawal from account were carried by way of cheque and the same was obtained from a customer titled as cash or favouring the Bank---No bar existed that only a cheque could be utilized for withdrawal, as a cheque was also instruction of payment /withdrawal---Where such normal course was disturbed and despite such deviation bank was to be more careful in handling the transaction---Plaintiff had not authorized the Bank through a letter and plaintiff was found entitled to recovery of USD 40,000/- from the Bank---Withdrawal transaction shown to the debit of plaintiff could not be entertained and the same was to be reversed---High Court directed that plaintiff was entitled to recover current value of USD 40,000/- in Pakistan Rupees---Plaintiff failed to bring forward any evidence to establish claimed damages/compensation of Rs.20,00,000/- and profit as available at saving Bank rate to cover element of loss of non-utilization for which no evidence was required---Decree at the current rate of USD covered element of depreciation as the same was considered to be a stable currency---Suit was decreed accordingly.

Muhammad Yar v. Muhammad Amin 2013 SCMR 464; Imtiaz Ahmed Mahmood v. Federal Board of Intermediate and Secondary Education Islamabad PLD 2003 SC 40; Giorgio Beverly Hills Inc. v. Colgate Palmolive Pakistan Ltd. 1999 MLD 3173 and Lithunian Airlines v. Bhoja Airlines (Pvt.) Ltd. and others 2004 CLC 544 ref.

Khalid Javed for Plaintiff.

Khalid Shah for Defendant.

YLR 2017 KARACHI HIGH COURT SINDH 1026 #

2017 Y L R 1026

[Sindh (Larkana Bench)]

Before Muhammad Iqbal Kalhoro and Zafar Ahmed Rajput, JJ

RASHID and another---Appellants

Versus

The STATE---Respondent

Crl. Appeal No.D-63 of 2014, decided on 8th December, 2016.

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

----Ss. 302(b), 353, 148, 149 & 114---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting armed with deadly weapon, common intention, abetment, act of terrorism---Appreciation of evidence---Ocular account corroborated medical evidence---Allegations against accused persons were that they made direct firing at deceased/police official---Accused persons had also made aerial firing with intention to create harassment and fled away after committing qatl-i-amd of deceased/police official---Complainant/eye-witness had given detailed account of the incident, which was supported by witnesses---No material contradiction had come on record in spite of lengthy cross-examination---Evidence of witnesses was consistent and confidence-inspiring, which showed that accused and other two co-accused committed murder of deceased with fire-arms---Accused was arrested near the place of occurrence, while trying to flee---Post-mortem report of deceased showed three fire arm injuries on his body which was in conformity with the evidence of prosecution witnesses---No material contradiction in the evidence of witnesses which would have suggested false implication of accused was found---Circumstances established that accused was responsible for committing murder of the deceased---Appeal against conviction was dismissed in circumstances.

1995 PCr.LJ 1548; 1974 PCr.LJ 385; 1997 PCr.LJ 625 and 1999 SCMR 1220 ref.

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

----Ss. 302(b), 353, 148, 149 & 114---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting armed with deadly weapon, common intention, abetment, act of terrorism---Appreciation of evidence---Recovery of weapon of offence from accused---Allegation against accused persons was that they made direct firing at deceased/police official---Accused persons had also made aerial firing with intention to create harassment and fled away after committing qatl-i-amd of deceased/police official---Weapon of offence, (pistol) had been recovered from the possession of accused---Said pistol was sent to the Ballistic Expert for examination along-with the empties recovered from the crime-scene---Report of Ballistic Expert showed that empties recovered from the place of occurrence were fired from the said weapon of offence---Recovery of pistol from the possession of accused, which was found to be used in the commission of offence, was yet another piece of evidence, which supported the prosecution case---Six empties of 9 m.m. bore, four empties of 30-bore and ten empties of Kalashnikov were recovered from the place of incident---Said recovery corresponded exactly with the claim of prosecution relating to aerial firing made by the accused persons at the spot for spreading terror---Appeal against conviction was dismissed in circumstances.

----Ss. 302(b), 353, 148, 149 & 114---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting armed with deadly weapon, common intention, abetment, act of terrorism---Appreciation of evidence---Benefit of doubt---Allegation against accused persons was that they made direct firing at deceased/police official---Accused persons had also made aerial firing with intention to create harassment and fled away after committing qatl-i-amd of deceased/police official---FIR showed that co-accused was armed with Kalashnikov but no role was attributed to him---Co-accused was only alleged to be sitting inside the car---Complainant and eye-witnesses had not assigned him any role either, except firing in the air---Co-accused, in his statement under S. 342, Cr.P.C. had submitted copies of some medical documents, indicated him to be a disabled person---No incriminating article was recovered from co-accused, which lent any credence to the allegations leveled against him---Facts and circumstances established reasonable doubt about the presence of co-accused at the spot, and his sharing common intention with the main accused, benefit of which would resolve in favour of co-accused---Appeal against accused was dismissed while co-accused was acquitted by extending him benefit of doubt.

Faiz Muhammad Larik for Appellants.

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

YLR 2017 KARACHI HIGH COURT SINDH 1045 #

2017 Y L R 1045

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Muhammad Iqbal Mahar, JJ

ALI AKBER---Petitioner

Versus

DIRECTOR GENERAL, NATIONAL ACCOUNTABILITY BUREAU---Respondent

C.P. No.D-617 of 2016, decided on 19th October, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---National Accountability Ordinance (XVIII of 1999), S. 9---Corruption and corrupt practices---Bail, grant of---Allegation against accused was that he entertained sale deed in respect of a property and it was not alleged that accused received illegal gratification---Case of accused was identical to that of co-accused who had already been granted bail---Accused was not expected to abscond or tamper with prosecution evidence---Bail was granted accordingly.

Mir Shahzad Ahmed Talpur for Petitioner.

Abdul Waheed Bijarani, Special Prosecutor NAB for Respondent.

YLR 2017 KARACHI HIGH COURT SINDH 1052 #

2017 Y L R 1052

[Sindh]

Before Aqeel Ahmed Abbasi and Abdul Maalik Gaddi, JJ

MOHAN MAL through Attorney----Petitioner

Versus

GOVERNMENT OF SINDH through Secretary Excise and Taxation and 2 others---Respondents

C.P. No. D-5388 of 2013, decided on 22nd September, 2016.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Cause of action---Absence---Petitioner assailed letter issued by authorities allowing him to make payment of outstanding amount of license renewal fee for 12 years---Validity---No lawful cause of action was pointed out by petitioner nor any order was assailed which required interference of High Court under its Constitutional jurisdiction---Constitutional petition was dismissed in circumstances.

Ahmed Ali Ghumro for Petitioner.

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

YLR 2017 KARACHI HIGH COURT SINDH 1079 #

2017 Y L R 1079

[Sindh]

Before Syed Muhammad Farooq Shah, J

Mst. NAHEED FATIMA and another----Petitioners

Versus

SETTLEMENT COMMISSIONER, HYDERABAD and others---Respondents

C.P. No.S-574 of 1965, decided on 17th October, 2016.

Permanent Transfer Rules, 1961---

----R. 3---Transfer of Property Act (IV of 1882), S.52---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Scope---Transfer of land---Petition for implementation of judgment---Laches, principle of---Lis pendens, doctrine of--- Applicability--- Petitioner sought implementation of judgment passed about 33 years before filing of present constitutional petition---Contention of respondent was that present petition was not maintainable being hit by principle of laches---Validity---Permanent Transfer Order had been issued after payment in view of judgment passed in constitutional petition holding that transfer of land in favour of petitioner was valid---Settlement department had to keep the entry of permanent transfer in their record---Issuance of Permanent Transfer Order in favour of petitioner was not necessary---Permanent Transfer Order in favour of respondent issued during the pendency of constitutional petition was hit by doctrine of lis pendens and was subject to judgment of the Court---Suit property had been transferred in favour of petitioner and said transfer was not set aside by any valid or legal order---Subsequent transfer of property in favour of respondent was void in circumstances---Laches could not be equated with limitation and right of petitioner was to be protected---Constitutional jurisdiction of High Court under Art. 199 of the Constitution was not to be restricted by time factor---Issue of limitation was not attracted in the issue involved in constitutional jurisdiction---Question of laches could be examined but was not to deny the right of the petitioner which had to be examined on equitable principles---Authorities were directed to implement the judgment passed in the constitutional petition by cancelling transfer documents of respondents and issue transfer document in favour of petitioner within a period of 30 days---Constitutional petition was allowed in circumstances.

Pakistan Post Office v. Settlement Commissioner and others 1987 SCMR 1119; PLD 1958 SC 104; PLD 2008 SC 663; PLD 2014 Sindh 224 and Javed Mir Muhammadi v. Haroon Mirza PLD 2007 SC 472 rel.

Jhamat Jethanand for Petitioners.

Jagdesh Molani for Respondents.

One of the legal heir of Respondent No.6 in person.

YLR 2017 KARACHI HIGH COURT SINDH 1097 #

2017 Y L R 1097

[Sindh]

Before Ahmed Ali M. Sheikh and Muhammad Saleem Jessar, JJ

MUHAMMAD UMAIR and another---Appellants

Versus

The STATE and another---Respondents

Criminal Special Anti-Terrorism Appeals Nos.294 to 298 of 2015, decided on 23rd November, 2016.

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

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S.23(1)-A---Explosive Substances Act (VI of 1908), Ss. 4/5---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of duty, common intention, act of terrorism, possessing unlicensed arms, possessing explosives with intend to endanger the life or property---Appreciation of evidence---Benefit of doubt---Allegation against the accused persons was that they made firing upon police party with the intention to commit their murder, which subsequently converted into encounter and thereby they allegedly had created terror, panic sense, fear and insecurity in the mind of complainant as well as the general public---Prosecution had alleged that offence had occurred in odd hours of the night---Circumstances suggested that none amongst the public was available nor had felt any fear or terrorism while observing the existence of accused persons as none from the public was attracted or even claimed by prosecution to have been there---Neither the accused persons had displayed the alleged ammunition and explosives nor it had been established in evidence that in order to create terror and panic situation among the public, the accused had displayed the same---Prosecution, therefore failed to establish that accused persons created terror by committing the alleged offence---Complainant and prosecution witnesses had supported the version of FIR but such narration, prima facie, did not appear to be natural or confidence inspiring for the reasons that despite alleged claim of an encounter, neither any of the police officials nor vehicle received any scratch---No empties were recovered from place of incident---No empty allegedly spent by the complainant party was collected by the Investigating Officer during investigation---Prosecution failed to show that they were having any particular weapons---In the absence of some tangible evidence, the allegation of encounter had not been proved---Complainant had deposed that FIR and memos of recovery and arrest were drafted by police official but the said police official had not been made as witness of the occurrence---Presence of police official who prepared the memos on the spot had not been justified through departure entry---Attending circumstances suggested that no offence as alleged had taken place and police party had completed all the paper formalities at the police station---Attending circumstances had created doubt about the veracity of the prosecution case, benefit of which resolved in favour of accused---Accused were acquitted by setting aside conviction and sentences recorded by the Trial Court.

Shoukat Baig v. Shahid Jamali PLD 2005 SC 530 rel.

(b) Criminal trial---

----Burden of proof---Principle---Prosecution was duty bound to prove its accusation---Prosecution could not be benefited from the failure or inability of the defence.

----Recovery of weapon of offence---Evidentiary value---Recovery, being a corroborative piece of evidence, would be relevant only where primary evidence i.e. ocular account stood well with the test of being confidence inspiring.

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

Muhammad Nawaz v. State 2016 SCMR 267; Ayub Masih's case PLD 2002 SC 1048 and Inayat Ali v. Shahzada 2008 SCMR 1565 rel.

(e) Criminal trial---

----Assertion of complainant---Evidentiary value---Mere saying of word from the mouth of the complainant did not constitute any offence unless corroborated by tangible evidence.

(f) Criminal trial---

----Benefit of doubt---Principle---Not necessary to gather many circumstances to extend benefit of doubt---Slightest doubt created in the prosecution case was sufficient to extend the benefit of doubt to the accused.

Bashir Ahmed Mirani for Appellants (in Criminal Special Anti-Terrorism Appeal No.294 of 2015).

Muhammad Iqbal Awan, Assistant Prosecutor General Sindh for Respondents (in Criminal Special Anti-Terrorism Appeal No.294 of 2015).

Bashir Ahmed Mirani for Appellants (in Criminal Special Anti-Terrorism Appeals Nos.295 and 296 of 2015).

Muhammad Iqbal Awan, Assistant Prosecutor General Sindh for Respondents (in Criminal Special Anti-Terrorism Appeals Nos.295 and 296 of 2015).

Bashir Ahmed Mirani for Appellants (in Criminal Special Anti-Terrorism Appeals Nos.297 and 298 of 2015).

Muhammad Iqbal Awan, Assistant Prosecutor General Sindh for Respondents (in Criminal Special Anti-Terrorism Appeals Nos.297 and 298 of 2015).

YLR 2017 KARACHI HIGH COURT SINDH 1151 #

2017 Y L R 1151

[Sindh]

Before Muhammad Humayon Khan, J

PERVIZ SHAH GILLANI and another---Appellants

Versus

Miss ZEEBA HAKIM and 3 others---Respondents

IInd Appeal No.72 of 2016, decided on 5th August, 2016.

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

----O. XVII, R. 3---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell---Closure of evidence---Scope---Plaintiffs and their counsel continuously remained absent and suit was dismissed for non-prosecution---Application for restoration of suit was filed but same was also dismissed in default---Last opportunity for recording of evidence was given to the plaintiffs but they absented---Provisions of O. XVII, R. 3, C.P.C. had been correctly applied by the courts below---Nothing was on record that courts below had committed any legal error in deciding the matter---Second appeal was dismissed in circumstances.

Qutab-ud-Din v. Gulzar and 2 others PLD 1991 SC 1109; Mst. Hamida Begum v. Mst. Husain Akhtar 1992 CLC 2515; Mst. Nazima Batool alias NazimBatool v. Sabar Ali Shah 2004 CLC 1175; Industrial Sales and Service, Karachi and another v. Archifar Opal Laboratories Ltd., Karachi PLD 1969 Kar. 418 and Syed Tahir Hussain Mehmoodi and others v. Agha Syed Liaqat Ali and others 2014 SCMR 637 ref.

Rana Tanveer Khan v. Naseer-ud-Din and others 2015 SCMR 1401; Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617; Mst. Nishadah Begum and 3 others v. Muhammad Ayub Khan PLD 1988 SC (AJ&K) 203; Mst. Kapoori and 4 others v. Man Khan and 6 others 1992 SCMR 2298; Abdul Rashid v. Bashiran and another 1996 SCMR 808 and Haji Sultan Ahmed through Legal Heirs v. Naeem Raza and 6 others 1996 SCMR 1729 rel.

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

----O. XVII, R. 3---Applicability of O.XVII, R.3, C.P.C.---Conditions.

The provisions of Order XVII, Rule 3, C.P.C. are, in nature, penal provisions and to apply the said provisions, the following conditions are to be satisfied:--

(a) the record shows, without any doubt, the default of the party to lead evidence;

(b) the conduct of the party, proved to have committed the default, must not be excusable;

(c) once the case of a party falls within the purview and mischief of law, than, neither any concession should be given nor a lenient view favouring him should be resorted to;

(d) if the case is squarely falls within the mischief of Order XVII, Rule 3, C.P.C., the Court is not, in any manner, obliged to adjourn the case and require the party to appear and examine himself as a witness on the subsequent date;

(e) if the party was cautioned on last occasion, that means that he was put to notice that if he fails to adduce evidence, action shall be taken;

(f) where the provisions of Order XVII, Rule 3, C.P.C. are attracted, the Court has no option except to take action in accordance with the provisions of Order XVII, Rule 3, C.P.C.; and

(g) the decision should be forthwith and on merits of the case.

----Ss. 100 & 101---Second appeal---Provisions of S.100, C.P.C. when attracted.

To attract the provisions of section 100, C.P.C., the appellants have to satisfy this Court that the Court subordinate to High Court has:--

(a) based its decision contrary to law or some usage having the force of law;

(b) failed to determine some material issue of law or usage having the force of law;

(c) committed a substantial error or defect in the procedure provided by C.P.C. or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.

As per section 101, C.P.C., no second appeal shall lie except on the above-noted grounds as mentioned in section 100 C.P.C.

Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617; Mst. Nishadah Begum and 3 others v. Muhammad Ayub Khan PLD 1988 SC (AJ&K) 203; Mst. Kapoori and 4 others v. Man Khan and 6 others 1992 SCMR 2298; Abdul Rashid v. Bashiran and another 1996 SCMR 808 and Haji Sultan Ahmed through Legal Heirs v. Naeem Raza and 6 others 1996 SCMR 1729 ref.

Muhammad Rashid for Appellants.

Nemo for Respondents Nos.1 to 4.

YLR 2017 KARACHI HIGH COURT SINDH 1174 #

2017 Y L R 1174

[Sindh]

Before Nadeem Akhtar and Muhammad Faisal Kamal Alam, JJ

ABDUL LATEEF SHAIKH---Petitioner

Versus

PROVINCE OF SINDH and 5 others---Respondents

C.P. No.D-3379 of 2016, decided on 13th July, 2016.

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

----Ss. 37 & 18-A---Sindh Local Councils (Election) Rules, 2015, R. 47---Election on reserved seats of Municipal Committee when one of its General Member seats was vacant---Effect---Election Commission issued election programme on reserved seats prior to conducting election for one of the General Member Seats of the Municipal Committee---Validity---Filling up of indirect seat in Municipal Committee at such stage with the present party position in the said Municipal Committee would be an exercise in futility---Entire composition of the Municipal Committee would be disturbed and calculation/ declaration of share of each political party on the basis of their present strength would be an erroneous exercise---Electors of the subject Committee would be deprived of electing member on the reserved seats through their duly elected members---Election of subject Ward of Municipal Committee should be held first before electing members on reserved seats in the said Committee---Political party enjoying a majority in the Municipal Committee should be given a fair opportunity to elect a Chairman and Vice-Chairman of that Committee---Nothing was on record as to why election was not conducted on the subject Ward of the Committee when same was lying vacant for the last six months---Composition of Electoral College should have been completed before issuing the impugned election programme---Impugned notification was declared to have been issued in excess of authority and same was set aside---Constitutional petition was accepted in circumstances.

2004 CLC 867 and Muhammad Nawaz Shareef v. Federation of Pakistan PLD 1993 SC 473 ref.

Syed Ghulam Shabbir Shah for Petitioner.

Abdul Wahab Baloch and S.M. Shuja Abbas for Respondent No.6.

Mukesh Kumar G. Karara, Addl. A.G.

Dilawar Hussain, Standing Counsel and Abdullah Hanjrah, Law Officer of ECP.

YLR 2017 KARACHI HIGH COURT SINDH 1199 #

2017 Y L R 1199

[Sindh]

Before Nazar Akbar, J

SALEH MUHAMMAD and 2 others---Applicants

Versus

PROVINCE OF SINDH through Secretary and others---Respondents

Revision Application No.235 of 2000, decided on 3rd June, 2016.

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

----Ss. 42, 39 & 54---Limitation Act (IX of 1908), Art. 92---Sindh Land Revenue Act (XVII of 1967), S.53---Suit for declaration, cancellation and permanent injunction---Limitation---Question of maintainability of the suit on ground of limitation on the factual controversy between the parties once decided and not challenged in appeal not to be re-agitated before the Revisional Court, but the question of limitation was such that could not be buried as finally decided if it could be shown that the suit was barred by time and the conclusion drawn by the Trial Court was wrong and incorrect---Question of limitation whether agitated in appeal or revision or not could still be examined by the court seized of the cause---Plaintiff had deposed that they had come to know of the entry in the revenue record in favour of the father of the defendants in 1980; therefore, the point of limitation to challenge the entry from the date of the knowledge by invoking S. 42 of Specific Relief Act, 1877 was either 1980 or from the date when they had attained the age of majority---Plaintiffs had attained the age of majority in 1989, therefore, adding three years to their age of majority, they should have challenged the undated entry by 1992; whereas, the present suit had been filed in 1998---In terms of Art. 92 of Limitation Act, 1908, a suit under S. 42 of Specific Relief Act 1877 for seeking declaration was to be filed within three years from the date of knowledge of forgery of the instruments issued or registered---Present suit was, therefore, time barred.

Muhammad Javaid Shafi v. Rashid Arshad PLD 2015 SC 212 rel.

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

----Ss. 42, 39 & 54----Sindh Land Revenue Act (XVII of 1967), Ss. 42 & 53---Limitation Act (IX of 1908), Art. 92---Qanun-e-Shahadat (10 of 1984), Art.144---Civil Procedure Code (V of 1908), O.XLI, R. 31---Suit for declaration, cancellation and permanent injunction---Maintainability---Making of that part of periodical records which related to land owners---Suit for declaratory decrees by persons aggrieved by and entry in revenue record---Plaintiffs filed the suit claiming that they were the owners-in-possession of the suit land through their deceased father, and the defendants, on basis of a bogus undated entry in the Revenue record, had attempted to dispossess the plaintiffs from the land---Both the Trial Court and appellate court dismissed the suit---Plaintiffs contended that the appellate court had not discussed the issue regarding possession of the suit land---One of the questions before the High Court was whether non-compliance of the requirement of S. 115, C.P.C. for filing of entire record was mandatory or directory and particularly non-filing of death certificate in the case had some wisdom behind it or it was without any reason---Contention that the Trial Court should have framed the issue about the death of the predecessor-in-interest of the plaintiffs was out of context in the given facts of the case, as the issue before the Trial Court was not the death of the predecessor since nobody had approached the Revenue Authorities in terms of S. 42 of Sindh Land Revenue Act, 1967 till date---Suit had been filed for declaration of ownership and cancellation of an undated entry in favour of the defendants in the revenue record, however, entry of a date might be incorrect, but the entry of the revenue record could not be undated---Plaintiffs had claimed to have been in possession of the suit land and aggrieved by the undated entry in the revenue Record, however, the plaintiffs had also sought declaration of ownership of the suit land---Jurisdiction of the civil court was totally barred except in terms of S. 53 of Sindh Land Revenue Act, 1967---Question of ownership of agricultural land was not covered by S. 53 of the Act, as the same spoke only about the grievance against entry in the Record-of-Rights or in a 'periodical record' as to any right of which he was in possession but not about ownership---Plaintiffs had claimed ownership by virtue of inheritance and claimed that their predecessor-in-interest had died; therefore, in terms of S. 42(1) of Sindh Land Revenue Act, 1967 the death should have been reported within three months from the date of his death and a copy of such report, free of cost, should have been obtained under S. 42 (1) (b) of the Act by the plaintiffs as the new landowners by inheritance, and if the plaintiffs were minors, then under S. 42(2) of the Act, entry should have been made by legal guardian---Grievance of the plaintiffs was not that the Patwari had failed to enter the report of death of their predecessor-in-interest in his record that was why under S. 42 (5) of Sindh Land Revenue Act, 1967, the plaintiffs had not reported such report to the Chairman Union Council concerned---Chairman of Union Council, however, had issued an undated death certificate instead of issuing certificate of certain entries in the revenue record on account of death of said predecessor-in-interest of the plaintiffs---Plaintiffs had annexed a copy of the certificate of death, which was undated and did not disclose the day and month of the death of their predecessor-in-interest---Plaintiffs had never filed the original death certificate with the plaint either before the appellate court or before the High Court---Appellate court was, therefore, not required to remand the case for non-framing of the issue as the death of the predecessor-in-interest of the plaintiffs, and the perusal of photocopy of the death certificate was enough to ignore the same---Appellate court had not examined the question as to possession of the suit land, as there was no controversy between the parties on the issue of possession of the suit land---Plaintiffs had not produced any documentary evidence to establish their physical and cultivation possession on the suit land---Plaintiffs had not produced Dal Receipts, Khasra gardawari or any document of possession---Defendants had not challenged the possession, since they themselves had claimed to have been in possession, and the plaintiffs had not sought order from the court for recovery of possession from the defendants---Plaintiffs' witnesses had not deposed about the alleged attempt by the defendant to dispossess the plaintiffs---Plaintiffs had claimed to have been in possession of the suit only to bring the suit within the ambit of S. 53 of Sindh Pakistan Land Revenue Act, 1967---Plaintiff had admitted the date of knowledge of the undated entry in his own examination-in-Chief---Plaintiffs had alleged to have filed an application to the Deputy Commissioner, but they had neither filed the said application nor disclosed the date of the same---Defendants, on the other hand, had filed the record with their written statement, showing entries in the name of their predecessor-in-interest on the basis of the order of the Assistant Commissioner, and that entry was not undated, and the plaintiffs had not challenged the same---Plaintiff, having alleged that the relevant Revenue Record had been destroyed, filed the certified copies of the record without any explanation---Plaintiffs had failed to give details about themselves, including actual date of birth and particulars of the persons who were their legal guardians and looking after the suit property after the death of their predecessor-in-interest when they were minors---Name of the plaintiff had never been mentioned in the Revenue record in terms of S. 42 of Sindh Land Revenue Act, 1967---High Court, maintained the findings of both courts below---Revision petition was dismissed in circumstances.

Mst. Sughran Bibi and others v. Mst. Jameela Begum and others 2001 SCMR 772; Muhammad Bashir v. Muhammad Hussain 2009 SCMR 1256; Dr. Muhammad Hussain v. Principal, Ayub Medical College PLD 2003 SC 143; Chaudhry Muhammad Shafi and others v. Government of Sindh 2014 YLR 602; Jan Muhammad and 6 others v. Ghulam Farid and 3 others 2014 MLD 1141; Mst. Jannat Bibi v. Faqir Muhammad 1998 MLD 837; Abdullah and others v. Muhammad Haroon 2002 CLC 1419; Farman Ali v. Muhammad Ishaq and others PLD 2013 SC 392; Muhammad Yousuf v Sharifan Bibi 2006 YLR 1084 and Muhammad Buta v. Habib Ahmad PLD 1985 SC 153 ref.

Muhammad Javaid Shafi v. Rashid Arshad PLD 2015 SC 212 rel.

----S. 53----Suit for declaratory decrees by persons aggrieved by and entry in record---Locus standi---Suit under S. 53 of Sindh Land Revenue Act, 1967 is filed by such landowners whose names have already been entered in the revenue record and they seek declaration of subsequent entry in the record as illegal, fraudulent entry, even on basis of any order of the Revenue Authorities.

(d) Sindh Land Revenue Act (XVII of 1967)---

----Ss. 53 & 42----Periodical record relating to land owners---Suit for declaratory decrees by persons aggrieved by and entry in record---Section 53 of Sindh Land Revenue Act, 1967 has to be read with S. 42 of the Act, which deals with making of part of periodical record, which relates to the land owners and means that ownership is directly linked/dependent on the timely entry in the revenue record.

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

----S. 3----Dismissal of suit on ground of limitation---Scope---Issue of limitation is not an issue between the parties alone---In terms of S. 3 of Limitation Act,1908, the limitation for filing a lis is an issue of the court, and that is why it is the duty of the court to dismiss the cause which is barred by time, though the limitation has not been set up as a defence.

Muhammad Javaid Shafi v. Rashid Arshad PLD 2015 SC 212 rel.

Shabbir A. Shaikh for Applicants.

Syed Alley Maqbool, A.A.G. and Ms. Naheed Akhtar State Counsel for Respondents.

YLR 2017 KARACHI HIGH COURT SINDH 1221 #

2017 Y L R 1221

[Sindh]

Before Muhammad Iqbal Kalhoro, J

Mrs. SHAHIDA---Petitioner

Versus

VII-ADDITIONAL DISTRICT JUDGE, KARACHI and 2 others---Respondents

Constitutional Petition No.S-902 of 2003, decided on 2nd June, 2016.

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

----Ss. 15 & 16---Eviction of tenant---Denial of relationship of landlord and tenant by the tenant--- Tentative rent order---Non-deposit of rent---Striking off defense---Scope---Rent Controller directed the tenant to deposit arrears of rent and future rent in the court but she failed and her defense was struck off and eviction petition was accepted---Validity---Tenant had no evidence to support her claim of ownership with regard to demised premises---Rent Controller should have first determined the issue of relationship of tenant and landlord between the parties---Rule that where the tenant had claimed ownership of premises, Rent Controller should determine such issue first before directing to deposit arrears of rent was not absolute---Tenant at the first instance had to show prima facie evidence in support of his assertion to qualify for such determination to be undertaken by the Rent Controller first---Where tenant had failed to bring on record such evidence in his support on such point then no prejudice would be caused to him if he was directed to deposit arrears of rent or future rent---Tenant had avoided to obey the order of the Rent Controller---No mis-reading or non-reading of evidence had been pointed out in the findings recorded by the courts below---Constitutional petition was dismissed in circumstances.

2007 YLR 363; 2009 MLD 144; 1992 SCMR 1149; 2010 YLR 1201; PLD 2014 SC 347; 2000 SCMR 632; 2000 SCMR 845; 1993 SCMR 1360; 2012 YLR 1713; 2007 YLR 2982; 2006 SCMR 1505; 2003 CLC 416; 1998 CLC 988; 2013 YLR 2526; 2011 SCMR 320; 2006 SCMR 1068; 1986 CLC 1770; PLD 2007 SC 504; 1995 MLD 840; 1991 CLC 937 and 1988 CLC 906 ref.

Younus Saeed for Petitioner.

Asim Iqbal for Respondents.

YLR 2017 KARACHI HIGH COURT SINDH 1234 #

2017 Y L R 1234

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar, J

MOULA BUX---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-649 of 2016, decided on 9th September, 2016.

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

----S.497(2)---Bail, grant of---Further inquiry---Accused was not nominated in FIR---Delay of six days in lodging FIR, was not explained by the complainant---Such fact rendered the case against accused one of further inquiry in terms of S. 497(2), Cr.P.C.---Bail was granted accordingly.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 377 & 34---Qatl-i-amd, sodomy, common intention---Bail, grant of---Further inquiry---Allegation of complainant in FIR was that certain unknown persons had committed murder of his son after sodomy---Accused was implicated in the case through supplementary statement---Such statement was made after the delay of 53 days from incident and 47 days from the FIR---No plausible explanation had been furnished by the prosecution for such an inordinate delay---Attending circumstances brought the case of accused within the ambit of further inquiry covered under S. 497(2), Cr.P.C.---Accused was allowed bail accordingly.

---S. 497(2)---Penal Code (XLV of 1860), Ss.302, 377 & 34---Qatl-i-amd, sodomy, common intention---Bail, grant of---Further inquiry---Incident was un-witnessed---Name of accused did not transpire in the FIR---Accused was implicated in the case through supplementary statement of complainant, which was recorded after about 47 days of occurrence--- Effect--- Supplementary statement of the complainant was not equivalent to the FIR---Supplementary statement had no evidentiary value as not recognized by law---Nothing incriminating was recovered from the possession of accused---Reasonable doubt arose with regard to the veracity of prosecution evidence---Prima facie, case against accused required further inquiry as contemplated under subsection (2) of S.497, Cr.P.C.---Bail was granted to accused, in circumstances.

Khalid Javed and another v. The State 2003 SCMR 1419 and Anees-ur-Rehman and another v. The State PLD 2002 Lah. 110 rel.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 377 & 34---Qatl-i-amd, sodomy, common intention---Bail, grant of---Rule of consistency---Allegation of complainant in FIR was that certain unknown persons had committed murder of his son after sodomy---Accused was implicated in the case through supplementary statement---Co-accused had been granted extra-ordinary relief in the shape of pre-arrest bail---Accused contended that his case was at par with the said co-accused---Validity---Case of accused was also identical to that of co-accused---Consistent treatment was to be extended in favour of the accused on the basis of law of parity---Bail was granted accordingly.

2007 YLR 323; 2008 SCMR 173; 2008 SCMR 1556; 2007 PCr.LJ 1981; 2011 SCMR 161; 2012 PCr.LJ 625; 2013 MLD 1214 and 2013 MLD 1115 ref.

Khalid Saeed Soomro for Applicant.

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

Syed Shafique Ahmed Shah for the Complainant.

YLR 2017 KARACHI HIGH COURT SINDH 1248 #

2017 Y L R 1248

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro, J

ABU BAKAR---Applicant

Versus

IIND ADDITIONAL SESSIONS JUDGE, DADU and 2 others---Respondents

Cr. Tr. Application No.S-64 of 2014, decided on 1st February, 2016.

Criminal Procedure Code (V of 1898)---

----S.526---Transfer of case---Case had been sought to be transferred to another District on the grounds that accused would not be adequately and properly defended on account of alleged influence of the complainant party, who had extended threats to him and that accused could not engage the counsel of his choice in view of said influence---No proof of any threats allegedly caused to the accused or his other family members had been shown---Accused had not brought to the notice of Trial Court about such situation---Record of Trial Court showed that accused himself had submitted an application for withdrawal of power of his counsel and since then, he had not engaged any counsel---Case could not be transferred on such vague grounds---Application for transfer of case was dismissed accordingly.

Ghulamullah Chang for Applicant.

Aslam P. Sipio for Respondent No.2.

YLR 2017 KARACHI HIGH COURT SINDH 1266 #

2017 Y L R 1266

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Khadim Hussain Tunio, JJ

ABUL HASSAN and another---Petitioners

Versus

ASSISTANT EXECUTIVE ENGINEER and 3 others---Respondents

C.P. No.D-3082 of 2016, decided on 29th December, 2016.

Constitution of Pakistan---

----Arts. 9 & 18---Fundamental Rights of security of person and freedom of trade, business and profession---Scope---Petitioners claimed that respondents were illegally drawing water from their water course---Validity---Water was meant for drinking as well as for irrigating lands, therefore, to have proper and legal share of water both for drinking and irrigation purposes would fall within the meaning of "Fundamental Rights"---Water for drinking was guaranteed by Art. 9 of the Constitution, while the water for irrigation was guaranteed by Art. 18 of the Constitution, as agriculture was undeniably a recognized lawful trade/ business---Any complaint in such regard should not only be attended by department itself but should be redressed even by taking help from law enforcing agencies---Irrigation authorities though were vested with certain powers, jurisdiction and authority but the same were always subordinate and subject to law and guarantee provided by the Constitution---High Court directed Irrigation Authorities to ensure complete discharge of water on feeder in question and to also ensure that no attempt of breach or hindrance in water supply affairs would go unchecked---Any hindrance or breach had always caused prejudice to certain vested rights therefore, Irrigation Authorities were to ensure removal thereof without loss of any time as and when it had come to their notice and knowledge---Constitutional petition was disposed of accordingly.

Government of Sindh v. Muhammad Shafi PLD 2015 SC 380 and Pir Imran Sajid and others v. M.D/GM and others 2015 SCMR 1257 ref.

Abdul Ghaffar Narejo for Petitioner.

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

YLR 2017 KARACHI HIGH COURT SINDH 1275 #

2017 Y L R 1275

[Sindh]

Before Muhammad Junaid Ghaffar, J

Mrs. FARZANA FARRUKH and others---Plaintiffs

Versus

ADMINISTRATOR, PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY and 3 others---Defendants

Suit Nos.417, 521, 522, 199 and 242 of 2014, decided on 29th November, 2016.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for declaration and permanent injunction---Rejection of plaint---Employees of Defence Authority College(s)---Claim for retaining the official accommodation---Terms and conditions of service---Scope---Defendants issued an Inter-Office Note whereby plaintiffs were directed to vacate official accommodation---Contention of plaintiffs was that Policy Directive was prospective in nature and not applicable to the plaintiffs---Validity---Defendants were not immune from scrutiny of their actions if they were found to be against the basic principles of law as they had their service rules and regulations though not statutory in nature---Exercise of discretion by any public authority was subject to interference by the Court if same had been exercised with mala fide intent or against the law---Employment letters issued to the plaintiffs employees had the details of the salary and allowances---None of the plaintiff employee was ever offered in the employment letter that any official accommodation would be given---Plaintiffs employees were seeking enforcement of terms and conditions of their employment---Employees were committed only house rent allowance during the period of their service---Employer Authority had not promised to provide official accommodation to the plaintiffs---Plaintiffs employees had no right to seek enforcement of terms and conditions of their service vis-à-vis the provision for official accommodation---Provision of accommodation was not part of the terms and conditions of employment of plaintiffs---Employees were being provided house rent allowance as per terms and conditions of their employment---Plaintiffs had no case to claim the retention of accommodation as an entitlement and benefits arising from the terms and conditions of service---Status of employees was of a mere licensee or tenancy-at-will with regard to provision of accommodation---Employees had no vested right in any manner to retain accommodation against the will of employer---Suits, in the present case, were barred in terms of Ss. 42 & 54 of Specific Relief Act, 1877---No relief as well as declaration sought could be granted to the plaintiffs---Plaints were rejected in circumstances.

Pakistan Defence Officer's Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707; The Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170; Messrs Friend Engineering Corporation, the Mall, Lahore v. Government of Punjab and 4 others 1991 SCMR 2434; Shoua Junejo and others v. PIA and others 2012 SCMR 1681; Gulf Steamship Co. Ltd. v. Deiwash Baloch PLD 1962 (W.P.) 899; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Muhammad Hanif v. Tariq Mehmood and others 2014 SCMR 941; Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455; Government College University, Lahore through Vice-Chancellor and others v. Syeda Fiza Abbas and another 2015 SCMR 445; Mrs. Yasmin Razi-ud-Din and another v. Mst. Tehmina 2012 CLC 1223; Dr. Khursheed Bhutto v. Civil Aviation Authority 2001 PLC (C.S.) 919 and Ghulam Yahya through Attorney and Legal Representative v. Ali Muhammad Jamal Maternity Homes PLD 2005 Kar. 240 ref.

Amin-ur-Rehman Khan and others v. Pakistan through Secretary Ministry of Works and another 1989 SCMR 1948; 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; Saeed Ahmad Malik v. Naval Estate Officer 1989 CLC 1204; Dr. Munir Ahmed, M.B., B.S., Medical Officer v. Chairman, House Allotment Committee, Government of Balochistan, Quetta and another 1983 CLC 1783 and Imtiaz Hussain v. Government of Pakistan Through Secretary, Ministry of Works, Estate, Islamabad and 2 others 1992 CLC 1122 rel.

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

----O. VII, R. 11---Plaint, rejection of---Scope---Court was bound to see and examine the maintainability of suit as to whether the same was barred by law or for that matter relief being sought could not be granted by the Court---Still-born suit must be buried at its inception---Court had to reject the plaint in such suit without any formal application from the party.

Raja Ali Shan v. Essem Hotel Limited 2007 SCMR 741; Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited PLD 2012 SC 247 and Haji Abdul Mateen Akhunzada and another v. District Co-ordination Officer/ Deputy Commissioner, Quetta and 5 others PLD 2012 Bal. 154 rel.

Aziz-ur-Rehman Akhund for Plaintiffs.

Malik Naeem Iqbal for Defendants (in Suits Nos. 521 and 522 of 2014).

Nazar Hussain Dhoon for Defendants (in Suits Nos. 199, 242 and 417 of 2014.

YLR 2017 KARACHI HIGH COURT SINDH 1292 #

2017 Y L R 1292

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Khadim Hussain Tunio, JJ

MURAD ALI---Appellant

Versus

The STATE---Respondent

Cr. Appeal No.D-38 of 2014, decided on 28th December, 2016.

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

----S. 9 (c)---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotic substance---Appreciation of evidence---Benefit of doubt---Admittedly, police had prior information that the accused along with absconding accused were going on motorcycle with narcotics in their possession---Despite that fact, police did not collect any private person to witness the occurrence---Exclusion of S.103 Cr.P,C, by S. 25 of the Control of Narcotic Substances Act, 1997 was not meant to completely absolve the police from asking for private witnesses to witness recovery process---Attempt to associate private witnesses was not likely to result in escape of the accused---Accused was acquitted, in circumstances, by setting aside conviction and sentence recorded by the Trial Court.

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

----S. 9(c)---Possession of narcotic substance---Appreciation of evidence---Benefit of doubt---Non-examination of Investigating officer---Effect---Prosecution case was that three-kilo and 30-grams of charas was recovered from the possession of accused---Accused was arrested at the spot---Prosecution had failed to examine the Investigating Officer and no plausible and cogent reason was produced in that context---Importance of the Investigating Officer in such like cases was always material---Investigating Officer was not supposed to blindly accept what the complainant alleged in the FIR but without being influenced from status or position of complainant, he had to bring the truth on surface---Non-examination of the Investigating Officer in such like cases would be fatal or material prejudice to the accused---Said material irregularity was sufficient for setting aside the conviction---Accused was acquitted, in circumstances.

----Witness---Material contradictions in the statements of prosecution witnesses---Effect---Material contradictions in the evidence of prosecution witnesses could be fatal for the prosecution.

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

----S. 9(c)---Possession of narcotic substance---Appreciation of evidence---Benefit of doubt---Prosecution case was that three kilo and 30-grams charas was recovered from the possession of accused---Prosecution had examined only two witnesses in order to prove the charge against the accused---Said witnesses were not steadfast on material points i.e. departure to alleged recovery of the contraband articles---Delay in sending the sample of the narcotic to the Chemical Examiner for examination and report---No attempt was made by prosecution to prove safe custody of the substance, adverse presumption would be drawn against the prosecution---Accused was acquitted, in circumstances, by setting aside conviction and sentence recorded by the Trial Court.

(e) Criminal trial---

----Benefit of doubt---Principle---Single doubt was sufficient for acquittal.

Raja Hansraj Naurang for Appellant.

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

YLR 2017 KARACHI HIGH COURT SINDH 1304 #

2017 Y L R 1304

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Muhammad Humayon Khan, JJ

ZUBAIR KHAN through Superintendent Central Prison-I, Sukkur---Appellant

Versus

The STATE---Respondent

Cr.J.A. No.D-160 of 2011, decided on 30th August, 2016.

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

----S. 9(c)---Possession and trafficking of narcotics---Appreciation of evidence---Allegation against accused was that 80 packets of charas were found from the truck of accused, each packet contained 1-kg of charas---Complainant and recovery witnesses had proved that accused was driving the truck at the time of his arrest and 80-Kgs charas was recovered from the secret cavities of the truck---Knowledge of charas kept in the truck would be attributed to the accused as he was in-charge of the truck---No other person was sitting in the truck at the time of his arrest---Accused being driver could not be absolved from responsibility regarding the narcotic being carried in his vehicle---Circumstances established the guilt of accused---Appeal against conviction was dismissed accordingly.

Naveed Asif v. State PLD 1988 SC 99; Nadeem Ahmed Khan and others v. The State 2007 PCr.LJ 233; Muhammad Riaz and another v. The State PLD 2003 Lah. 290; Iqbal Khan v. The State 2012 PCr.LJ 1524; Ghulam Siddique v. The State 2005 YLR 605; Muhammad Noor and others v. The State 2010 SCMR 927; Ikramullah and others v. The State 2015 SCMR 1002, Tariq Pervez v. State 1995 SCMR 1345 and Zahoor Ahmed Awan and another v. The State 1997 SCMR 543 ref.

Ghulam Qadir v. The State PLD 2006 SC 61 rel.

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

----S. 9(c)---Possession and trafficking of narcotics---Driver of the vehicle to be responsible---Person on driving seat of the vehicle would be held responsible for transportation of the narcotics.

Kashif Amir v. The State PLD 2010 SC 1052 rel.

----Ss. 9(c) & 29---Possession and trafficking of narcotics---Appreciation of evidence---Proof of possession---Scope---Once the prosecution had established the case under S.29 of Control of Narcotic Substances Act, 1997 burden would be shifted upon the accused to prove contrary to the plea of prosecution---In the present case, Chemical Examiner's report was in positive, which proved that substance recovered from the secret cavities of the truck of the accused was charas---Prosecution had established that the person who was found in possession of the narcotics had committed the offence while the defence had failed to discharge its burden in terms of S.29(d) of Control of Narcotic Substances Act, 1997---Appeal against conviction was dismissed accordingly.

(d) Criminal trial---

----Objection not raised before Trial Court---Scope---Such objection could not be raised at subsequent stage.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 103---Possession and trafficking of narcotics---Appreciation of evidence---Officials of Excise Department as recovery witnesses---Competence---Principles---Prosecution case was that 80 kilograms charas was recovered from the vehicle of accused---Prosecution witnesses were officials of Excise Department---Defence had alleged that no private witness was associated at the time of recovery, which was violation of provision of S. 103, Cr.P.C.---Validity---Application of S. 103, Cr.P.C. had been excluded in such cases in view of S. 25 of Control of Narcotic Substances Act, 1997---Excise officials were as good witnesses as other public witnesses---Evidence of such witnesses could not be discarded merely for the reason that they belong to Excise Department---Complainant and officials of Excise Department had no reason and enmity with accused to falsely implicate him in the present case---Appeal against conviction was dismissed.

Muhammad Khan v. The State 2008 SCMR 1616 rel.

Abdul Baqi Jan Kaker for Appellant.

Saleem Akhter Buriro Addl. P.G. for Respondent.

YLR 2017 KARACHI HIGH COURT SINDH 1320 #

2017 Y L R 1320

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar, J

DOST MUHAMMAD alias DOSOO---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-385 of 2016, decided on 2nd September, 2016.

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

----S.497---Penal Code (XLV of 1860), Ss. 324, 353 & 34---Attempt to commit qatl-i-amd, assault, criminal force to deter public servant from discharge of his duty, common intention---Bail, grant of---Further inquiry---Accused was alleged to have made straight firing on police party while he was stopped for snap checking---Police also retaliated in defence---Accused sustained fire shot injury---None from the police had sustained even a scratch on their body or belonging---Weapon of offence was recovered which was not sent to Ballistic Expert---Whether the recovered weapon was functional and was used at the time of occurrence was yet to be determined---Matter was found to be of ineffective firing, which fell in the ambit of further inquiry---Bail was granted in circumstances.

Tarique Bashir and 4 others' case PLD 1995 SC 34 rel.

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

----S.497---Bail---Innocence of accused---Proof of guilt---Every accused would be presumed to be blue eyed boy of law---Accused would not be declared guilty until and unless, he was found guilty of alleged charge---Law could not be stretched upon in favour of prosecution at bail stage.

2015 MLD 466; 2006 MLD 530; 2006 YLR 3022; 2012 YLR 178; 2014 YLR 2083; 2014 YLR 1573 and 2009 PCr.LJ 679 ref.

Faisal Ali Raza Bhatti for Applicant.

Saleem Khan, D.D.P.P. for Respondent.

YLR 2017 KARACHI HIGH COURT SINDH 1338 #

2017 Y L R 1338

[Sindh]

Before Naimatullah Phulpoto and Aftab Ahmed Gorar, JJ

GUL ZAMAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.187 of 2014, decided on 17th March, 2016.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay in registration of FIR---Night time occurrence---Source of light---Proof---Contradictions in prosecution evidence---Validity---Incident took place at night time and prosecution witnesses had seen the incident and identified accused persons in the light of bulb but neither in Mashirnama of place of occurrence nor in evidence of Mashir there was mention of any bulb at the place of incident---Even sketch prepared by revenue official, did not mention any such bulb---Recovery witness stated to have recovered crime weapon from almirah lying, in the room of accused, where clothes and other articles were also lying, whereas investigating officer stated that except crime weapon nothing was found in the almirah---Possibility of false implication of accused could not be excluded in view of delay occurred in lodging FIR and in the light of contradictions and discrepancies in the evidence of prosecution---Accused was entitled to benefit of doubt as a matter of right---Many circumstances existed which created doubt in prosecution case---Accused could not be deprived of benefit of doubt merely because there was only one circumstance which created doubt in the prosecution story---High Court set aside conviction and sentence awarded to accused by Trial Court and he was acquitted of the charge---Appeal was allowed in circumstances.

Mohammad Akram v. The State 2009 SCMR 230; Nazeer Ahmed v. Gehne Khan and others 2011 SCMR 1473; Mohammad Ali v. The State 2015 SCMR 137; Tariq Pervez v. The State 1995 SCMR 1345; Lal Khan v. The State 2006 SCMR 1846; Mohammad Riaz v. The State 2009 PCr.LJ 1022; Ayub Masih v. The State PLD 2002 SC 1048; Said Zamin v. Shair Azaim and others 2016 MLD 76; Khalid Javed and another v. The State 2003 SCMR 1419; Zaman Shah v. The State 2015 MLD 795; Khalil-uz-Zaman v. Supreme Appellate Court, Lahore and 4 others PLD 1994 SC 885; Takdir Samsuddin Sheikh v. State of Gujarat and another 2012 SCMR 1869; Khalid Saif Ullah v. The State 2008 SCMR 688; Irshad Ahmed v. The State and others PLD 1996 SC 138; Shafqat Ali and others v. The State PLD 2005 SC 288; Ata Mohammad v. The State PLD 1960 [W.P.] Lah. 111; Noor Mohammad v. The State and another 2005 SCMR 1958 and Mir Mohammad v. The State 1995 SCMR 614 ref.

Irshad Ahmed v. The State 2011 SCMR 1190; Mohammad Akram v. The State 2012 SCMR 440; Mehboob Sultan and 2 others v. The State and others 2001 SCMR 163 and Umar Farooque v. State 2006 SCMR 1605 rel.

Sarfraz Ali Metlo for Appellant.

Abrar Ali Khichi, APG for the State.

Complainant in person.

YLR 2017 KARACHI HIGH COURT SINDH 1365 #

2017 Y L R 1365

[Sindh]

Before Nazar Akbar, J

AMIR AHMED through Legal Heirs---Petitioners

Versus

Z.A. KHAN through duly Constituted Attorney---Respondent

R.A. No.214 of 1991, decided on 5th May, 2016.

Specific Relief Act (I of 1877)---

----S. 12----Constitution of Pakistan, Arts. 23 & 24---Suit for specific performance of agreement---Proof---Inordinate delay of 40/45 years in disposal of the suit---Effect---Provision as to/ protection of property---Plaintiff was tenant of the suit/evacuee property prior to transfer of the title/ownership of the property to the defendant, and after the property had been officially transferred to the defendant, the plaintiff had become a statutory tenant, for which reason the defendant had initiated eviction proceedings during pendency of the present suit, in which the Rent Controller had passed an eviction order and the appeal filed against the same had been dismissed---Both courts below, having elaborately discussed the material evidence, had found that the plaintiff in view of his own admitted documents had failed to prove execution of the agreement of sale---Statement of the marginal witness had been belied during recording of the evidence---Plaintiff had perpetuated his possession over the suit property during about 45 years of litigation---Plaintiff, who was mere occupant without any legal character, thus, had defeated the rights/entitlement of the defendant granted under Arts. 23 & 24 of the Constitution in the name of the litigation---Plaintiff and his sub-tenant had continued to be in possession of the suit property under the cover of the interim orders passed by the courts---In view of facts and circumstances of the case, there was no misreading and non-reading of the evidence or lack of any proper reasoning for dismissal of the suit and appeal---Plaintiff and other occupants of the suit property who had no legal character/entitlement over the suit property for 40 years could not have been allowed to retain possession of same even for one day---Final eviction orders against the plaintiff were also in field, the execution of which had been stayed in the proceedings of present petition---Defendant had lost track of the case only on account of inordinate delay and conduct of his counsel---High Court dismissed revision for perpetuating plaintiffs' possession over the suit property for over 40 to 45 years through frivolous litigation before the Settlement authorities, through civil suit and also on account of realizing rent during the litigation---High Court directed that suit property be taken over by Nazir of the Court (as the defendant was not present before the High Court) and rented out and also directed to locate the defendant or his legal heirs---High Court observed that not only the counsel of the parties but the Court had also contributed in the inordinate delay in disposal of the suit---Revision petition was dismissed with cost of Rs.3,00,000 in circumstances.

Abrar Hassan for Applicants.

Nemo for Respondent.

YLR 2017 KARACHI HIGH COURT SINDH 1422 #

2017 Y L R 1422

[Sindh]

Before Nadeem Akhtar and Aziz-ur-Rehman, JJ

Syed RIAZ HUSSAIN SHAH---Petitioner

Versus

FEDERATION OF PAKISTAN, MINISTRY OF HOUSING AND WORKS through Secretary and 10 others---Respondents

C.P. No.D-6085 of 2014, decided on16th May, 2016.

Specific Relief Act (I of 1877)---

----S. 39---Constitution of Pakistan, Art.199---Constitutional petition---Lease of plot---Registered document---Cancellation of---Procedure---Contention of petitioner was that sale deed in favour of respondent was nullity in the eye of law---Validity---Petitioner had raised conflicting/self-contradictory pleas with regard to number and location of subject plot which had destroyed his case---Once a document was registered then it could only be cancelled by another registered document or through declaration of court in proper proceedings---Registered document was a notice to the general public-at-large---Constitutional petition was not maintainable which was dismissed with cost.

Adam Jee Insurance Company Ltd. v. Pakistan through The Secretary of Government of Pakistan in The Ministry of Finance, Islamabad and 5 others 1993 SCMR 1798; Chief Administrator of Auqaf v. Muhammad Ramzan and others PLD 1991 SC 102 and Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd. 2010 SCMR 1097 ref.

Sadruddin Shaikh v. Sajjadullah Qureshi and others PLD 2006 SC 341 distinguished.

Muhamamd Younas Malik v. Punjab Privatization Board and 3 others 2004 YLR 1612; Mrs. Zaibun Nisa through Attorney v. Karachi Development Authority and 5 others PLD 1998 Kar. 348 and Rahim Dad and 3 others v. Abdul Kareem and 3 others 1992 MLD 2111 rel.

Muhammad Aziz Khan for Respondent No.5.

Nemo for Petitioner.

Dilawar Hussain for Respondent No.1.

Saifuddin for Respondent No.4.

Syed Sultan Ahmed for Respondent No.5

Nemo for Respondents Nos.2, 3 and 6 to 9.

Raja Ali Asghar for Respondents Nos. 10 and 11.

YLR 2017 KARACHI HIGH COURT SINDH 1443 #

2017 Y L R 1443

[Sindh]

Before Yousuf Ali Sayeed, J

Syed IKRAMULLAH---Plaintiff

Versus

IQBAL AHMED KHAN and 4 others---Defendants

Suit No.1312 of 2011, decided on 10th January, 2017.

Civil Procedure Code (V of 1908)---

----O. XXXVII, R. 2---Suit for recovery of money--- Dishonored cheque---Presumption--- Ex parte evidence---Defendants did not join proceedings and evidence of plaintiff was recorded ex parte---Effect---Affidavit in ex-parte proof and examination-in-chief of plaintiff and other witnesses were on oath and remained un-rebutted---Dishonoured cheques issued by defendant by themselves established that defendant was liable to pay the amount to plaintiff---Cheque was a negotiable instrument and there was rebuttable presumption that every such instrument was made, drawn, accepted and endorsed for consideration---Defendants did not come forward to rebut evidence or such presumption---Plaintiff satisfactorily proved his case and was entitled to recovery of amount claimed by him---Suit was decreed in circumstances.

Mst. Khatija Bai and another v. Muslim Commercial Bank PLD 1978 SC 99; Habib Bank Ltd. Karachi v. Ghazanfarullah Khan and another PLD 1978 Kar. 263; BCCI v. Ali Asbestos and others 1993 CLC 913; Mst. Suriya Waseem Usmani and 9 others v. L & M International (Private) Limited and another 2002 CLD 624 and Haji Ali Khan and Company, Abbotabad and 8 others v. Messrs Allied Bank of Pakistan Ltd. Abbotabad PLD 1995 SC 362 ref.

Nauman Jamali for Plaintiff.

None for Defendants.

YLR 2017 KARACHI HIGH COURT SINDH 1456 #

2017 Y L R 1456

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

DAIM ALI KHAN---Applicant

Versus

MUSHTAQUE ALI alias FAROOQ and 4 others---Respondents

Criminal Revision Application No.48 of 2015, decided on 19th January, 2016.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 4---Illegal dispossession---Complaint, dismissal of---Non-recording of evidence---After seeking reports from Station House Officer and revenue official, Trial Court dismissed the complaint---Validity---Question of illegal dispossession was different from civil liabilities and Trial Court was bound to ascertain as to whether allegations levelled by complainant constituted offence under Illegal Dispossession Act, 2005, or otherwise---Trial Court failed to exercise jurisdiction vested in it in appropriate manner and committed material illegality and gross irregularity, while dismissing complaint without recording evidence of parties and affording them opportunity to produce their documents during trial---Execution of sale agreement of accused was disputed by complainant, while ownership of house in question by their deceased father was admitted and acknowledged by accused---Complainant was not legally barred from maintaining criminal actions---High Court set aside the order passed by Trial Court, as the same was result of material illegality and gross irregularity which attracted interference of High Court---High Court remanded the matter to Trial Court for disposal on merits in accordance with law---Revision was allowed in circumstances.

Raheem Tahir v. Ahmed Jan and 2 others PLD 2007 SC 423; Wajid Ali Khan v. Shaikh Murtaza Ali and 2 others PLJ 2003 SC 714; Abdul Kareem Khan v. Mst. Zahida Khan and 2 others 2008 YLR 2434; Iftikhar Ahmed v. Zulifquar Ali and 3 others PLD 2008 Lah. 59; Allah Ditto v. Muhammad Ishaque and another 2013 YLR 1580; Gul Hassan v. Muhammad Usman and 4 others 2012 PCr.LJ 268; Muhammad Kauser Iqbal v. ADJ and others 2012 PCr.LJ 1405; Gulfam Ahmed v. Additional Sessions Judge Gujranwala and 3 others 2011 PCr.LJ 487 and Mustaqeem v. State and another 2010 PCr.LJ 286 ref.

Applicant in person.

Shahzado Dreho for Respondent No.1.

A.R. Kolachi A.P.G. for the State.

YLR 2017 KARACHI HIGH COURT SINDH 1470 #

2017 Y L R 1470

[Sindh]

Before Syed Muhammad Farooq Shah, J

MUMTAZ ALI and 3 others---Appellants

Versus

AMIR ALI GUL through L.Rs.---Respondent

IInd Appeals Nos. 57 and 58 of 2012, decided on 17th November, 2016.

Civil Procedure Code (V of 1908)---

----S.100---Second appeal---Scope---Plaintiffs were in possession of the suit property and were not encroachers or trespassers---Findings recorded by the Appellate Court were based on mis-reading and non-reading of evidence---Judgment delivered by the Trial Court was well reasoned---Impugned judgment passed by the Appellate Court was set aside and that of Trial Court was restored---Second appeal was allowed in circumstances.

(b) Administration of justice---

----Law leans adjudication on merits rather on technicalities.

Zia-ul-Haq Makhdoom and Azhar Mehmood for Appellants.

K.B. Bhuto and Syed Sikandar for Respondent No.1.

Muhammad Azhar Faridi and Faheem Iqbal for Respondents Nos. 2 and 3.

Rana Khalid Hussain for Respondents Nos. 16 to 22.

YLR 2017 KARACHI HIGH COURT SINDH 1488 #

2017 Y L R 1488

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

ABDUL HAKEEM---Applicant

Versus

SHABAN and 9 others---Respondents

Cr. Revision Application No.S-43 of 2015, decided on 22nd March, 2016.

Criminal Procedure Code (V of 1898)---

----S.156---Application for reinvestigation of case---Scope---Reinvestigation remained alive even after the conclusion of challan but when challan had been submitted and cognizance taken, charge had been framed, the only option left was to conclude the trial after evidence---Application for permission to reinvestigate the case was dismissed in circumstances.

Syed Gulzar Hussain Shah v. S.H.O and others 2002 PCr.LJ 1585; Choudhry Muhammad Adnan v. Mst.Erum and others 2011 SCMR 508; Waris Khan v. Deputy Superintendent Custom Mardan and another 2001 PCr.LJ 660 and PLD 2006 SC 316 ref.

Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31 and Syed Gulzar Hussain v. SHO and others 2002 PCr.LJ 1585 rel.

Mian Mumtaz Rabbani for Applicant.

Ajeebullah Junejo for Respondents Nos. 1 to 3 and 5 to 7.

Ghulam Murtaza Korai for Respondents Nos. 4, 8 and 9.

Abdul Rehman Kolachi APG.

YLR 2017 KARACHI HIGH COURT SINDH 1498 #

2017 Y L R 1498

[Sindh]

Before Abdul Rasool Memon, J

NOVARTIS PHARMA (PVT.) LTD. through Human Resources Manager---Appellant

Versus

MUNAWWAR SULTANA and another---Respondents

1st Appeal No.9 of 2011, decided on 28th March, 2016.

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

----O. XXXVII, Rr. 2 & 3---Stamp Act (II of 1899), S. 49---Suit on the basis of promissory note---Negotiable instrument---Scope---Trial Court dismissed the suit holding that promissory note was insufficiently stamped and same was not admissible in evidence---Validity---Promissory note payable on demand for an amount not exceeding Rs. 250,000/- was chargeable with stamp duty of Rs. 50/- at the time of its execution---Promissory note, in the present case, was written on stamp paper of Rs. 20/- having adhesive stamp of Rs. 30/---Stamp duty of Rs. 50/- had been charged properly on the promissory note of Rs. 150,000/---Promissory note could be written on a paper having adhesive stamps or stamp paper and it was not necessary that promissory note must be affixed with adhesive stamps---Defendants having not come in the witness box, their written statement could not be considered---Nothing was in rebuttal of evidence of plaintiff---Negotiable instrument itself be treated as evidence against the defendant---Plaintiff had established his claim through documentary evidence---Impugned judgment was set aside and suit was decreed---Appeal was allowed in circumstances.

Messrs Habib Bank Limited v. Chaudhry Cloth House 1991 CLC 164 ref.

Muhammad Sharif v. Muhammad Hashim Paracha and another PLD 1987 Kar. 76; Messrs Bahria Foundation, Karachi v. Abdul Aleem Butt PLD 2006 Kar. 545; PLD 2010 SC 604; PLD 2004 SC 465 and PLD 1987 Kar. 102 rel.

(b) Pleadings---

----Written statement could not be treated as piece of evidence unless the person having filed it was examined.

PLD 2010 SC 604 and PLD 2004 SC 465 rel.

Muhammad Siddiq Shahzad for Appellant.

YLR 2017 KARACHI HIGH COURT SINDH 1511 #

2017 Y L R 1511

[Sindh]

Before Muhammad Iqbal Kalhoro, J

MUHAMMAD IQBAL---Petitioner

Versus

MUHAMMAD SULEMAN JAMEEL and 5 others---Respondents

C.P. No.S-214 of 2007, decided on 31st August, 2016.

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

----S. 16(2)---Ejectment petition---Wilful default---Proof---Admission of tenant (petitioner) was available on record that he did not pay rent as there was dispute in civil court about the ownership of the premises between mother of landlords and the previous owner---Contention of tenant was that he paid property tax of the premises which he had adjusted towards the rent amount---Validity---Contention of tenant was not sustainable in law---Tenant was admittedly tenant of the premises and was required to pay its rent---If he had any doubt over the ownership of the premises under his tenancy, he could have deposited the rent in the court---Non-depositing the rent for a period of twelve years was without any justifiable excuse and sufficient to hold that he had committed default in payment of rent---Contention that he had adjusted the amount paid in property tax to the rent due was equally untenable as the adjustment was without consent or agreement of the owner---Tenant was not permitted to act on his own and deprive the landlord from the benefit of the rent---Constitutional petition was dismissed.

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

----S. 15---Ejectment petition---Bona fide personal need of landlord---Proof---Principles---Option of landlord to choose any of the premises to carry on his business---Tenant could not raise any objection to the effect that since landlord had other shops in possession, he could not ask for the premises in occupation of the tenant---Constitutional petition was dismissed.

----Art. 199---Constitutional jurisdiction of High Court---Scope---Concurrent findings of the facts determined by the two courts below could not be upset or disturbed under constitutional jurisdiction unless it was shown that those findings were the outcome of mis-appreciation of evidence or were based on the circumstances extraneous to the pleadings of the parties---Constitutional petition was dismissed accordingly.

1995 SCMR 146; 1989 MLD 581; 2006 SCMR 152; 1984 CLC 2837; 1994 SCMR 1012; 1989 SCMR 538; 1997 SCMR 1062; 1998 SCMR 2119; 2002 SCMR 241 and 2010 SCMR 1925 ref.

Abdul Wajid Wyine for Petitioner.

YLR 2017 KARACHI HIGH COURT SINDH 1525 #

2017 Y L R 1525

[Sindh]

Before Nadeem Akhtar, J

Ch. MUHAMMAD ASHRAF---Plaintiff

Versus

HAFEEZ-UR-REHMAN and another---Defendants

Suit No.438 of 2014, decided on 30th November, 2015.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Plaint, rejection of---Scope---Plaint did not disclose any cause of action---Effect---Plaint to be rejected when it did not disclose any cause of action---Court had power to reject plaint even without any application from a party if same was hit by any of the clauses mentioned under O. VII, R. 11, C.P.C.---Plaint was to be rejected if suit was incompetent---Parties be saved from the rigor of frivolous litigation at the very inception of the proceedings.

Raja Ali Shan v. Messrs Essem Hotel Limited and others 2007 SCMR 741; Pakistan Agricultural Storage and Services Corporation Ltd. v. Mian Abdul Latif and others PLD 2008 SC 371 and Abdul Nasir and another v. Haji Saeed Akbar 2010 SCMR 1770 rel.

Plaintiff and his counsel called absent.

Chaudhry Atif Rafiq for Defendant No.2.

YLR 2017 KARACHI HIGH COURT SINDH 1541 #

2017 Y L R 1541

[Sindh]

Before Khadim Hussain M. Shaikh, J

Messrs SINDH GOVERNMENT EMPLOYEES CO-OPERATIVE HOUSING SOCIETY LTD., through Attorney---Plaintiff

Versus

KARACHI DEVELOPMENT AUTHORITY through Director General---Defendant

Suit No.265 of 1991, decided on 4th August, 2016.

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

----O. I, R. 10---"Necessary party"---Connotation---Necessary party is the party, in whose absence no effective decree or order can be passed and a suit cannot proceed in absence of such party.

Vice-Chancellor and 3 others v. Muhammad Shahzad Khalid PLD 2001 SC (AJ&K) 21 rel.

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

----S. 54---Suit for injunction and recovery of damages---Proof---Plaintiff was a Housing Society and claimed damages from authorities for not completing development work in prescribed period---Validity---No contract existed between plaintiff society and authorities for outer development work of Scheme which was not Karachi Development Authority's scheme---Development charges were collected by Deputy Commissioner from plaintiff society and other 150 cooperative societies outer development work whereof was to be carried out in the scheme---Deputy Commissioner had been making payment to Development Authority in installments on work by work basis---Plaintiff society and other 150 cooperative societies were responsible for non-completion of the work as they failed to deposit development charges with Deputy Commissioner and the work was stopped for want of funds---No evidence was available on record to indicate that Development Authority in any way was responsible for stopping development work---Plaintiff society failed to prove claim of damages and its case for relief sought against Development Authority---Suit was dismissed in circumstances.

M. Islam Laghari for Plaintiff.

Iqbal Khurram for Defendant.

YLR 2017 KARACHI HIGH COURT SINDH 1551 #

2017 Y L R 1551

[Sindh]

Before Muhammad Faisal Kamal Alam, J

PREMIER INSURANCE COMPANY OF PAKISTAN LTD. and another---Plaintiffs

Versus

KARACHI SHIPYARD AND ENGINEERING WORKS LTD. and another---Defendants

Suit No.13 of 1972, decided on 2nd May, 2016.

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

----Ss. 130-A & 135-A---Transfer of actionable right---Letter of subrogation---Insurance company after being subrogated can sue tortfeasor in its own name.

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

----Ss. 130-A & 135-A---Contract Act (IX of 1872), Ss.151 & 161---Qanun-e-Shahadat (10 of 1984), Arts. 114 & 120---Damages---Recovery---Bailee, negligence of---Onus to prove---Vessel in question was duly insured with plaintiff companies who had letter of subrogation in their favour---Plaintiffs filed suit for recovery of damages against defendant companies for causing loss to vessel in question during repairs when it was dry docked with defendants---Validity---Vessel in question was delivered / entrusted to one defendant by its owners and when fire incident occurred on the vessel, it was in the possession of that defendant---Rule applicable in case of bailor and bailee was attracted here, as the defendant acted as bailee and the vessel was dry docked for repairs at its premises---Such defendant had an additional obligation to exercise due care and diligence while undertaking task of repairing the subject vessel---Once contract of bailment was proved and there was entrustment of goods with bailee, then loss of subject matter of bailment was a prima facie evidence of negligence of bailee---Onus was on the defendant to prove that the latter took all appropriate measures while carrying out repair work and employed reasonable standard of care---Defendant could not discharge its burden of proof about not being negligent in performance of its contractual obligation towards shipping company, which was subsequently subrogated plaintiffs---Suit was for recovery of Rs.2.8 million approximately from defendants out of which Rs.2.6 million was paid by plaintiffs to shipping company towards settlement of its insurance claim, while Rs.75000/- was incurred towards cost of survey to assess damages as a pre-requisite for settling any insurance claim---Claim of plaintiffs was neither exaggerated nor was vitiated by lack of uberrima fides (utmost good faith), which was one of the basic principle of insurance contract---Suit was decreed accordingly.

East and West Steamship Company v. Queensland Insurance Company PLD 1963 SC 663; Pakistan through Secretary Communication, Islamabad v. Habib Insurance Company Limited, Karachi 1991 CLC 1270; 2001 SCMR 1700; 1988 CLC 1381; Sri Narasimhaswami and others v. Muthukrishnalyergar AIR 1962 Madras 244 (V 49 S 7); Halsbury's Laws of England Vol. 2, 3rd Edition Pg. 117; National Logistic Cell v. Irfan Khan and others 2015 SCMR 1406; Clements v. Clements 2012 2 R.C.S. and Winfield and Jolowicz on Tort, Sixteenth Edition, 2002 ref.

Mansoor-ul-Arfin for Plaintiffs.

Ikram Ahmed Ansari and Ayaz Ansari for Defendant No.1.

H. A. Rehmani, Yawar Farooqui and Ms. Naheed Akhtar for Defendant No.2.

YLR 2017 KARACHI HIGH COURT SINDH 1579 #

2017 Y L R 1579

[Sindh]

Before Muhammad Ali Mazhar, J

AROMA TRAVEL SERVICES (PVT.) LTD. through Director and 4 others---Plaintiffs

Versus

FAISAL AL ABDULLAH AL FAISAL AL-SAUD and 20 others---Defendants

Suit No.843 of 2015, decided on 30th January, 2017.

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

----O. I, R. 10---Impleading of parties---Necessary and proper party---Scope---Plaintiff in a suit is dominus litis who may choose persons against whom he wishes to litigate and he cannot be compelled to sue a person against whom he does not seek any relief---Necessary party is a person who must be joined as a party and in whose absence no effective decree can be passed at all by court---If a necessary party is not impleaded the suit itself is liable to be dismissed---Proper party is a party who though not a necessary party but is a person whose presence enables court to completely, effectively and adequately adjudicate upon all matters in dispute in suit, though he is not a person in favour of or against whom decree is to be made.

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

----Ss. 12, 42 & 54---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for specific performance of agreement, declaration, injunction, rendition of accounts, recovery of money and damages--- Rejection of plaint---Principles---Partial rejection of plaint---Scope---Suit filed by plaintiffs was sought to be rejected on the plea that there was no binding contract between the parties and many defendants were located abroad for which Trial Court had no territorial jurisdiction---Defendants also contented that suit did not disclose any cause of action---Validity---Court had to presume facts stated in plaint as correct and for determination of any such application Court could not look into the defence---Right methodology and approach in case of mix question of law and facts, was to let the suit proceed to written statement and discovery and determine matter either on framing preliminary issues or regular trial---Provisions of O.VII, R. 11, C.P.C., did not justify rejection of any particular portion of plaint or in piecemeal---Concept of partial rejection was seemingly incongruous to provisions of O. VII, R.11, C.P.C.---Court was bound to reject plaint if it did not disclose any cause of action---Plea that there was no cause of action for suit was different from the plea that plaint did not disclose a cause of action---Astute drafting for creating illusions of cause of action were not permitted in law but a clear right to sue had to be shown in plaint---Plea that plaint did not disclose a cause of action could be taken only when on that plea plaintiff could be entirely non-suited---Where there was a joinder of a number of causes of action on some of which at least a decree could be passed, no plea of demurrer may be admitted to reject plaint---Where there were several parties and plaint disclosed cause of action against one or more of them, then also plaint could not be rejected as what was required in law was not piecemeal reading of plaint but reading it in its entirety---High Court declined to reject plaint as plaintiffs could not be non-suited at such stage---Application was dismissed in circumstances.

Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187; Gulistan Textile Mills Ltd. v. Askari Bank Ltd. PLD 2013 Lah. 716; Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue Islamabad; 1994 SCMR 826; Muhamamd Matloob and 10 others v. Jamshed K. Marker and others PLD 2006 Kar. 523; Al-Huda Hotels and Tourism Co. and others v. Paktel Ltd. and others 2002 CLD 218; Anwer Hussain Surya v. Sumair Builders through Partners 2008 CLC 418; In re: Marriage of Judith M. Chaltin Petitioner and Arthur A. Chaltin Respondent 153 111. App.3d 810 1987) 506 N.E.2d 338; Tri-Country Motors, Inc., Plaintiff v. American Suzuki Motor Corporation Defendant 170\170 494 F. Supp.2d 161 (2007); Teachers Insurance and Annuity Association of America, v. Tribune Company 670 F. Supp. 491 (1987); 128 Walford and others v. Miles and another House of Lords 23 January 1992 (1992) 2 W.L.R. 174 [1992] 2 A.C. 128; Messrs Sezei Turkes Fayzi Akkaya Construction Company (STFA) v. Messrs Ekon Yapi Onarim Ticaretve Sanayi Ltd. and others 2015 SCMR 905; Messrs Brady and Co. (Pakistan) Ltd. v. Messrs Sayed Saigol Industries Ltd. 1981 SCMR 494; Messrs Kadir Motor (Regd). Rawalpindi v. Messrs National Motors Ltd., Karachi and 3 others 1992 SCMR 1174; Government of Punjab through Secretary Health Department, Lahore and 2 others v. Khyber International Printer through Proprietor PLD 2009 Lah. 518; Khalifo Haji Muhammad Hanif through Lrs. v. Khalifo Haji Ghulam Hussain and others 1997 MLD 1294; Mrs.Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189 and Messrs Raziq International (Pvt.) Ltd. through Vice President v. Panalpina Management Ltd. PLD 2014 Sindh 175 ref.

----O. I, R, 10 & O. VII, R. 11---Misjoinder of parties and causes of action---Effect---If Court reaches the conclusion that suit is bad for misjoinder of parties and/or causes of action, Court cannot dismiss the suit without providing plaintiffs an opportunity of amendments---If issues in suit arise out of same set of circumstances there is no multi-fariousness i.e., misjoinder of causes of action and putting plaintiff to elect.

Rana Imran v. Fahad Noor Khan 2011 YLR 1473 rel.

(d) Contract---

-----Meaning.

Black's Law Dictionary, 5th Edition Page 291; David M. Walker Oxford Companion to Law, 1980 Ed. P. 284; Anson's Law of Contract, 23rd Edition, by A.G. Guest, 1971 P.23; G.H. Treitel, The Law of Contract, Tenth Edition (1999) by Sir Guenter Treitel, Sweet & Maxwell (1999), p. 1. (Source: MOITRA'S Law of Contract & Specific Relief, Fifth Edition) rel.

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

----S. 10---Oral contract---Scope---Oral contract is valid and enforceable but it requires strong and satisfactory evidence vis-à-vis its formation and contents---Where a party seeks to enforce oral agreement, heavy burden lies on him to prove that the contract is concluded and terms of oral contract were meant to be given effect to---Where a contract is said to be made orally, ascertainment of its terms raises in first place pure question of fact what parties say---Conditions of essential validity are (i) competent parties; (ii) existence of consent of parties; (iii) consent being free; (iv) existence of consideration; (v) consideration and object being lawful; and (vi) agreement not being expressly declared to be void---No rigid or tenacious stipulation is imparted or divulged under S. 10 of Contract Act, 1872 which may rationally exclude existence of oral contract from being enforced although in case of seeking enforcement of or specific performance of oral contract more satisfactory evidence is required to be led---Agreement in writing is not necessary nor mandatorily required under provisions of Contract Act, 1872.

Khawaja Shams-ul-Islam and Imran Taj for Plaintiffs.

Muhammad Akram Shaikh, Behzad Haider and Ms. Sundas Hoorain for Defendants Nos. 1 and 2.

Hasmatullah for Defendant No.19.

Nemo for remaining Defendants.

YLR 2017 KARACHI HIGH COURT SINDH 1607 #

2017 Y L R 1607

[Sindh]

Before Salahuddin Panhwar, J

MOIZ ABBAS through Attorney---Plaintiff

Versus

Mst. LATIFA---Defendant

Suit Nos.429 of 2005 and 115 of 2006, decided on 9th February, 2016.

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

----Ss. 42 & 12---Qanun-e-Shahadat (10 of 1984), Arts. 119 & 122---Suit for declaration and specific performance---Oral agreement to sell---Proof---Procedure--- Pleadings--- Requirements---Contention of plaintiff was that he was owner of suit property whereas defendant contended that she had purchased the same through agreement to sell---Validity---Defendant had not mentioned in her pleadings the terms of oral agreement, names of marginal witnesses and period for completion of the same which was requirement of pleadings---Credible and unimpeachable evidence was required to prove the oral agreement---Nothing was on record that defendant entered into any agreement to sell with the plaintiff and paid any consideration---Burden of proof would be on the person who had knowledge of any facts/circumstances---No one could claim possession over the property of other except with consent/permission of owner of that property---Mere completing structure or renovation would not make the illegal possession into legal---Plaintiff was not available when construction was made by the defendant---Nothing was on record which authorized the defendant to raise construction---Attorney could not burden the principal for an obligation for which he/she had no authority---Principal in the event of breach by the attorney had remedy of damages against agent and vice versa---If defendant had paid any amount to the attorney for a thing for which she was not competent then damages could be sought---Possession of defendant was wrongful and plaintiff was entitled for mesne profit---Plaintiff had not led any evidence to establish that he could earn certain amount of rent monthly of the property in question---Mesne profit was fixed and defendant was directed to pay the same from the date of possession till plaintiff was put into vacant possession of subject property---Defendant was directed to hand over vacant possession of suit property to the plaintiff and also pay mesne profit---Suit of plaintiff was decreed whereas that of defendant was dismissed.

2008 SCMR 1108 and 2009 SCMR 114 ref.

Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. 2013 SCMR 1300; Elahi Bakhsh v. Muhammad Iqbal 2014 SCMR 1217; Abdul Karim Nausherwani v. State 2015 SCMR 397; Imam Din v. Bashir Ahmed PLD 2005 SC 418; Jamal Din v. Syed Altaf Hussain Shah and others 2005 MLD 1351; Shabana Irfan v. Muhammad Shafi Khan 2009 SCMR 40 and PLD 2001 Pesh. 228 rel.

(b) Pleadings---

----Parties were bound by their pleadings and could not be allowed to prove case beyond the same.

Hyder Ali Bhimji v. VIth Additional District Judge 2012 SCMR 254 and Mir Akber v. Sher Bahadur and others 2006 SCMR 315 rel.

----Power of attorney should be construed strictly---Attorney could perform those acts only which the principal had permitted him/her to do by specifically mentioning or by necessary implication.

2005 CLC 269 rel.

Muhammad Mushtaq Qadri for Plaintiff (in Suit No.429 of 2005).

Abdul Majeeb Pirzada for Defendant (in Suit No.429 of 2005).

Abdul Majeeb Pirzada for Plaintiff (in Suit No.115 of 2006).

Nemo for Defendants (in Suit No.115 of 2006).

YLR 2017 KARACHI HIGH COURT SINDH 1638 #

2017 Y L R 1638

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

JEEWAN---Applicant

Versus

The STATE---Respondent

Criminal Miscellaneous Application No.695 of 2013, decided on 5th May, 2016.

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

----S. 514---Forfeiture of surety bond---Accused for whom applicant stood surety, having remained absent from court on the date of hearing, surety bond executed by the applicant was forfeited, and surety was asked to deposit surety amount---Validity---Police had seized 18-cattle suspected to be stolen---Said cattle were handed over to a person on superdari after accepting his application by the Trial Court on furnishing solvent surety of Rs. two lac---Applicant stood surety and also executed bond that in case of any default, he will pay Rs. Two lac as fine---Subsequently, surety failed to produce cattle before the court despite issuing several notices and ultimately intimated the court that cattle had been stolen away, copy of FIR was produced---Applicant had failed to perform his duty as per terms and conditions mentioned in the bond executed by him before the Trial Court---Trial Court imposed fine amounting to Rs. Two lac upon the applicant and directed him to pay the said amount within 15 days---Applicant was duty bound to inform the Trial Court regarding commission of theft of cattle instantly but he deliberately avoided to come forward to perform his duty and remained silent---Trial Court directed the applicant to deposit the fine amount within 15 days time but during the period of eight years, he had failed to deposit the said amount, hence he did not deserve for any concession---Previously, applicant had filed another application but he continuously remained absent, thus same was dismissed for non-prosecution---Applicant had filed present petition with unexplained delay of 44 days for claiming same relief, which was barred by time and even no sound ground had been shown for accepting his application---Application was dismissed in circumstances.

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

----S. 514---Execution of surety bond---Humanitarian grounds---Lenient view---Scope---Execution of surety bond on humanitarian grounds by the surety for release of any accused on bail or property on superdari, was no ground to extend any lenient view.

Shamsuddin N. Kobhar for Applicant.

Mumtaz Ali Naich for Claimant.

A.R. Kolachi A.P.G. for the State.

YLR 2017 KARACHI HIGH COURT SINDH 1667 #

2017 Y L R 1667

[Sindh (Larkana Bench)]

Before Zafar Ahmed Rajput and Muhammad Iqbal Mahar, JJ

SADDAM HUSSAIN SHAMBOZAI BROHI and 2 others---Petitioners

Versus

The STATE---Respondent

Cr. Appeal No.D-31 of 2014, decided on 16th August, 2016.

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

----Ss. 365-A, 342, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Abduction for extortion, wrongful confinement, rioting with deadly weapon, unlawful assembly with common object---Appreciation of evidence---Benefit of doubt---Complainant and two other persons were allegedly over-powered by six armed accused who abducted two persons except complainant, and demanded ransom---One prosecution witness was declared hostile and cross-examined but no favourable statement was extracted from him---Evidence of complainant and his abductee son consisted of divergent statements---Witnesses of recovery, who were injured, were not produced before Trial Court---Alleged incident was reported after one month---Statements of abductees under S.164, Cr. P. C. were recorded after twenty five (25) days of recovery---Accused persons were seen and identified with torch light which was a weak piece of evidence---Neither accused were arrested from the place of encounter nor empties were recovered from spot to prove recovery of abductees after encounter---No question under S.342, Cr. P. C. regarding recovery of abductee from custody of accused was put to accused---Prosecution had failed to prove its case beyond any shadow of doubt---Accused persons were acquitted of the charge.

(b) Criminal trial---

---Best piece of evidence withheld by prosecution---Effect---Where best piece of evidence was available with a party and same was withheld by him, it could be presumed that either the witness was not ready to support or party had some evil motive behind it in not producing such evidence.

----Identification---Scope---Identification of accused in torch light---Evidentiary value---Evidence relating to identification of accused in torch light was weak piece of evidence.

Muhammad Bux and others v. The State 1968 PCr.LJ 590 rel.

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

----S. 342---Question not put to accused in his statement---Effect---When any piece of evidence not put to accused in his statement under S.342, Cr.P.C., same could not be used against him for his conviction.

Muhammad Shah v. The State 2010 SCMR 1009 rel.

(e) Criminal trial---

----Benefit of doubt---For giving benefit of doubt to an accused there need not be a number of circumstances to create doubt but single circumstance creating doubt in a prudent mind about guilt of accused would be sufficient for acquittal.

Tarique Parvez v. The State 1995 SCMR 1345 rel.

Rafique Ahmed Abro and Ahsan Ahmad Quraishi for Appellants.

Yasir Arafat Seelro for the Complainant.

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

YLR 2017 KARACHI HIGH COURT SINDH 1691 #

2017 Y L R 1691

[Sindh (Larkana Bench)]

Before Muhammad Humayon Khan, J

NIAZ HUSSAIN and others---Applicants

Versus

NIZAMUDDIN and 13 others--Respondents

Civil Revision Application No.28 of 2011, decided on 29th September, 2016.

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

----O. VII, R. 11 & O. II, R. 2 & S. 11---Specific Relief Act (I of 1877), Ss. 42 & 39---Limitation Act (IX of 1908), Art.91 & S. 3---Sindh Land Revenue Act (XVII of 1967), Ss. 164 & 172---Sindh Revenue Jurisdiction Act (X of 1876), S. 11---Suit for declaration and cancellation of sale deed---Limitation---Res judicata, principle of---Applicability---Plaint, rejection of---Scope---Title of land in question had already been decided in the earlier suit---Judgment passed in the earlier suit would operate as res judicata---Alleged sale deed and entries in the record of rights were in the knowledge of plaintiffs---Relief for cancellation of impugned sale deed and entries was available to the plaintiffs but they themselves relinquished the said relief---Doctrine of constructive res judicata was applicable in circumstances---Judgment in the earlier suit was final not only to the matters actually determined in the decision but also to the other matters which might and ought to have been agitated and could have been resolved in that decision---Relief for cancellation which had been added in the present suit was based on the same cause of action which prompted the plaintiffs to institute the earlier suit---Second suit could not legally be sustained on the same cause of action even for the relief not claimed in the earlier suit---Law did not permit splitting of claims or relief arising out of the same cause of action---Party could not be vexed twice for the same cause of action and there should be end to litigation---Plaintiffs had knowledge of the impugned sale deed and entries in the revenue record on 13-02-2006---Plaintiffs had failed to ask for cancellation of the said documents within three years---Present suit was time-barred in circumstances---Once Court had come to the conclusion that suit was time barred, it was bound to dismiss the same on the ground of limitation only without going into the merits of the case---Sindh Land Revenue Act, 1967 was a special statute which had provided a remedy of revision against the order of District Officer (Revenue)---Plaintiffs had not filed revision against the order of District Officer (Revenue) with regard to maintaining the impugned entries in the record of rights---Plaintiffs had failed to avail remedy of filing revision in the revenue hierarchy and had bypassed the highest forum in the said hierarchy---Present suit was barred under S.11 of Sindh Revenue Jurisdiction Act, 1876---Provisions of S.172 of Sindh Land Revenue Act, 1967 were applicable to the present suit as plaintiffs' case was only for correction of entries in the revenue record---No illegality or irregularity had been committed by the courts below while rejecting the plaint---Both the courts below had exercised jurisdiction in accordance with law---Revision was dismissed in circumstances.

Case law referred.

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

----S.11---Res judicata, principle of---Applicability---Principles---Principle of res judicata was of universal application based on the principle that one cause should not be tried for the second time between the same parties---Court should not try any suit or issue in which the matter directly and substantially in issue had been directly and substantially in issue in a former suit between the same parties or between the parties under whom they or any of them had claimed or litigated under the same title in a Court competent to try such subsequent suit or the suit in which such issue had been subsequently raised and had been heard and finally decided by such competent Court.

----S. 39---Limitation Act (IX of 1908), Art. 91---Suit for cancellation of instrument--- Limitation--- Suit for cancellation of instrument could be filed within three years and such time would start when facts entitling the plaintiff to have the instrument cancelled or set aside became known to him.

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

----S. 3---Suit instituted after period of limitation---Effect---Every suit instituted after the period of limitation was liable to be dismissed although limitation had not been set up as a defence.

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

----O. VII, R. 11---Plaint, rejection of---Factors to be considered---While considering application under O.VII, R.11, C.P.C. contents of plaint had to be considered with the presumption that whatever was stated therein was correct---Where plaintiff had concealed material facts and important documents in the plaint, material produced by the defendant with the written statement or application under O. VII, R. 11, C.P.C. could also be taken into consideration.

Case law referred.

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

----S. 115---Limitation Act (IX of 1908), S. 12(2)---Revision---Limitation--- Revision was filed within seventy days after excluding the period for obtaining copies---Limitation for filing of revision was ninety days---Revision petition was within time.

Case law referred.

(g) Administration of justice---

----Court was under a duty to show awareness of the law of the land and to apply it irrespective of whether parties or their counsel invoked the same or not---Judge must wear all laws of the country on the sleeves of his robe and failure of the counsel to properly advise him was not an excuse.

Case law referred.

Abdul Sattar Janweri for Applicants.

Rafique Ahmed K. Abro for Respondents Nos. 1 to 10.

Naimatullah Burgri, State Counsel for Respondents. Nos. 11 to 14.

YLR 2017 KARACHI HIGH COURT SINDH 1713 #

2017 Y L R 1713

[Sindh]

Before Muhammad Junaid Ghaffar, J

PROVINCE OF SINDH, CHIEF SECRETARY and 7 others---Applicants

Versus

BILQEES and 16 others---Respondents

J.M. No.02 of 2015, decided on 9th June, 2016.

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

----S. 12 (2) & O. XXIII, R. 3---Contract Act (IX of 1872), Ss. 23 & 65---Compromise decree, setting aside of---Fraud and misrepresentation---Withdrawal of application for compromise---Words "lawful agreement or compromise" occurring in R.3 of O.XXIII, C.P.C.---Scope---Contention of applicants was that compromise decree was obtained through fraud and misrepresentation---Application for compromise of suit was accepted and that of withdrawal of compromise application was dismissed---Validity---Application under S. 12(2), C.P.C. was not a substitute of an appeal---Application under S. 12(2), C.P.C. was only competent in case a fraud or misrepresentation was committed with the court---No fraud or misrepresentation had been committed with the court in the present case---Applicants should have preferred an appeal against the order whereby their request for withdrawing the compromise application had been declined---Order with regard to dismissal of withdrawal application could not be impugned through an application under S. 12(2), C.P.C.---Agreement which had been placed as a compromise before the court ought to be lawful and not otherwise---Court was only competent to allow a lawful agreement to be entered into a compromise by passing a decree to that effect---If any agreement was not lawful then court ought not to pass any judgment or decree to that effect or even if such judgment or decree was passed then same to the extent of any unlawful agreement could not be executed---Criminal proceedings could not be compromised by the court in terms of O. XXIII, R. 3, C.P.C. being not lawful agreement---Compromise application to the extent of criminal proceedings should not have been entertained and to that extent impugned judgment and decree was modified by the High Court---Plea of fraud and misrepresentation was not attracted in the present case---Certain clauses of compromise agreement with regard to criminal proceedings were not lawful and needed to be modified---Impugned order was modified to the extent of compromise of criminal proceedings---Application for setting aside of compromise decree was dismissed in circumstances.

Muhammad Younus Khan and 12 others v. Government of N.W.F.P. and others 1993 SCMR 618; Hameedullah Khan v. Ghulam Rasool and 41 others 2001 SCMR 1316; Monazah Parveen v. Bashir Ahmed and 6 others 2003 SCMR 1300; Sardar Ali v. Mst. Sardar Bibi alias Sadaran 2010 SCMR 1066; Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236; Mst. Farida Begum and others v. Hafiz Muhammad Shamim and others 1997 CLC 343; Government of Sindh and another v. Ch. Fazal Muhammad and another PLD 1991 SC 197; Pir Muhammad Azam v. Pir Azizullah and 2 others 2011 CLC 355; Subdedar Sardar Khan and others v. Muhammad Idrees and another PLD 2008 SC 591; Muhammad Tufail and 3 others v. Muhammad Aslam Khan and another 1999 YLR 934; Syed Ameer Hussain Shah v. Syed Dilbar Hussain Shah and 3 others 2011 MLD 1956; Nasar Khan and 6 others v. Additional District Judge-I, Lakki Marwat and 76 others 2007 CLC 326; Nazir Ahmed v. Muhammad Shorn and others 2001 SCMR 46; Afghan Carpet v. Hashwani Hotels Limited and another PLD 2009 Kar. 61; Industrial Development Bank of Pakistan v. National Engineering Works and others 1993 MLD 1344; Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710; Messrs Al-Mehran Builders v. City District Government, Karachi 2006 CLC 373; Messrs K. M. Enterprises v. City District Government, Karachi and 2 others 2008 YLR 2053; Messrs Zia Abbas and Sons (Pvt.) Ltd. v. Karachi Development Authority (KDA) and 2 others PLD 2004 Kar. 87; The Commanding Officer, National Logistic Cell and another v. Raza Enterprises and others 2003 CLC 719 and Gahi alias Gada Hussain and others v. Shaman and 7 others PLD 2006 Kar. 588 ref.

Hossain Ali Khan v. Firoza Begum PLD 1971 Dacca 112; Srimati Sabitri Thakurain v. Mrs. F.A. Savi and others AIR 1933 Patna 306; Sheikh Muhammad Obaid v. Muhammad Rafi Qureshi PLD 1962 (W.P.) Kar. 409; Qasim Khan v. Jalal and others PLD 1987 Lah. 398 and Karachi Development Authority through Secretary v. Makhdoom Bilawal Cooperative Housing Society and others 2001 SCMR 1277 rel.

(b) Public functionary---

----Office of government functionaries were not person specific and their acts could not in its entirety be undone by their successors in interest in this manner---If an officer had done any illegal act then recourse would be to proceed against him and his successor in no circumstances could be allowed to undo such acts at his own whim and desire---Government functionaries could not be allowed to wriggle out from the stance taken by the concerned department before the court merely because of change and or transfer of an officer.

Ziauddin Junejo A.A.G. for Applicant No.1.

G.N. Qureshi for Applicant No.2.

Khawaja Shamsul Islam for Respondents.

YLR 2017 KARACHI HIGH COURT SINDH 1739 #

2017 Y L R 1739

[Sindh (Larkana Bench)]

Before Muhammad Iqbal Mahar, J

ABDUL MAJEED---Applicant

Versus

Syed SHAHID HUSSAIN SHAH and another---Respondents

Crl. Misc. Appln. No.S-119 of 2015, decided on 26th September, 2016.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 337-H(2), 114, 147, 148, 149 & 504---Qatl-i-amd, rash or negligent act, abettor present when offence committed, roiting armed with deadly weapons, intentionally insult with intent to provoke breach of peace---Bail, grant of---Allegation against accused was that he had instigated others to kill the complainant, though he was armed with repeater but did not cause any injury to deceased or any prosecution witness---Case of prosecution was that complainant party had gone to the place of accused party where alleged offence took place---Question of pre-planning would not arise---Bail was rightly granted to the accused by the Trial Court---Petition for cancellation of bail was dismissed in circumstances.

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

----S.497(5)---Penal Code (XLV of 1860), Ss. 302, 337-H(2), 114, 147, 148, 149 & 504---Qatl-i-amd, rash or negligent act, abettor present when offence committed, roiting armed with deadly weapons, intentionally insult with intent to provoke breach of peace---Bail, grant of---Bail granting order could be cancelled in case there was likelihood of absconsion of accused, apprehension of tampering with the prosecution evidence by accused or misusing the concession of bail---No such allegation against accused was asserted by the prosecution---Petition for cancellation of bail was dismissed in circumstances.

Syed Muhammad Firdos and others v. The State 2005 SCMR 784 rel.

Mst. Shafeen Akhtar v. Malik Mumraiz and others 2014 PCr.LJ 1415 ref.

Mazhar Ali Bhutto for Applicant.

Athar Abbas Solangi for Respondent No.1.

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

YLR 2017 KARACHI HIGH COURT SINDH 1752 #

2017 Y L R 1752

[Sindh]

Before Muhammad Shafi Siddiqui, J

FALCON-I (PVT.) LTD. through Authorized Attorney---Plaintiff

Versus

FEDERATION OF PAKISTAN through Secretary Finance and 5 others---Defendants

Suit No.1007 of 2016, decided on 20th March, 2017.

Civil Procedure Code (V of 1908)---

----O. I, R.10---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction--- Necessary party---Licensing Committee already recommended for awarding tender in favour of applicant---Application to implead as necessary party in suit was filed by applicant---Validity---"Person" under O. I, R. 10, C.P.C., was a person whose interest was likely to be affected even though no relief was claimed against him---Such indulgence could not be extended to a person who had no interest which was likely to be affected by proceedings---Where right was created in favour of applicant its presence could not be ruled out in view of a possible decree that might be passed in suit---Application was allowed in circumstances.

Ali Almani for Plaintiff.

Abdul Qadir Laghari Assistant Attorney General for Defendant No.1.

Kashif Nazeer for Defendants Nos. 2 and 4 to 6.

Muhammad Masood Khan for Applicant/Intervener.

YLR 2017 KARACHI HIGH COURT SINDH 1769 #

2017 Y L R 1769

[Sindh]

Before Arshad Hussain Khan, J

ISRAR-UL-HAQ and 7 others---Petitioners

Versus

Mst. ZOHRA JABEEN and 2 others---Respondents

C.P. No.S-395 of 2006, decided on 27th February, 2017.

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

----S. 8---Fair rent, fixation of---Factors to be considered while determining fair rent---Rent Controller fixed rent at the rate of Rs. 18/- per Sq. ft per month from the date of filing of rent case---Validity---No restriction existed for filing an application for fixation of fair rent either by the landlord or tenant before the Rent Controller having jurisdiction thereon---Rent Controller was required to examine cumulative effect of all four factors as mentioned in clauses (a)(b)(c)(d) of subsection (1) of S.8 of the Sindh Rented Premises Ordinance, 1979 for fixation of fair rent---Rent Controller after examining the evidence had determined the fair rent of demised premises---No misreading of fact or jurisdictional defect had been pointed out in the impugned judgments passed by the Courts below---Constitutional petition was dismissed in circumstances.

PLD 1993 Kar. 9; PLD 1983 Kar. 9 and 1995 MLD 181 ref.

1993 CLC 1726 and Messrs Olympia Shipping and Weaving Mills Ltd. and another v. State Life Insurance Corporation 2001 SCMR 1103 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court could not reappraise evidence in cases under Sindh Rented Premises Ordinance, 1979 while exercising constitutional jurisdiction.

Messrs Mehraj (Pvt.) Ltd. v. Miss Laima Saeed and others 2003 MLD 1033 rel.

Abdullah Chandio for Petitioners.

Qaisar Hassan Khan and Altaf Hussain for Respondent No.1.

YLR 2017 KARACHI HIGH COURT SINDH 1793 #

2017 Y L R 1793

[Sindh]

Before Syed Muhammad Farooq Shah and Mohammed Karim Khan Agha, JJ

Syed MANZAR ABBAS---Petitioner

Versus

CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU and 2 others---Respondents

Constitution Petitions Nos. D-3905 and 3906 of 2016, decided on 19th January, 2017.

(a) Constitution of Pakistan---

----Art.189---Decision of Supreme Court---Practice---Order passed by two Judges of a Bench of Supreme Court cannot take precedence over an order of three Judges Bench.

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

----Ss. 9(b) & 16(a)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, refusal of---Delay in conclusion of trial---Hardship case---Accused had been in custody for more than 18 months without conclusion of trial---Plea raised by accused was that delay in conclusion of trial was not attributed to him---Validity---Six accused persons and thirteen prosecution witnesses were left to be examined---Charge had been framed and trial was proceeding---High Court declined to assume that two absconders could be arrested and charge was reframed and trial would start afresh, as such circumstances could never arise---High Court directed the Trial Court to hear the case on day-to-day basis and not to adjourn the same on any flimsy ground and that case be decided within six months without considering the case that of hardship---Bail was refused in circumstances.

Mir Shah Jehan Khetran v. NAB dated 12-12-2016; Syed Mansoor Ali v. Chairman NAB PLD 2016 Sindh 41; Nazir Hussain v. Ziaul Haq and others 1983 SCMR 72; Muhammed Jahangir Badar v. State PLD 2003 SC 525; Faisal Hussain Butt v. State 2009 SCMR 133; Syed Rashid Hussain Rizvi v. NAB C.P. No.D-3624 of 2016; NAB v. Bakhat Zameen C.P. No.1542 of 2016 dated 26.8.2016; Atta Abbas Zaidi v. Chairman NAB C.P. No.D-1865 of 2016 dated 3.10.2016 and Hamesh Khan v. NAB 2015 SCMR 1092 ref.

Farooq H. Naek for Petitioner.

Muhammad Altaf Special Prosecutor, NAB for Respondents.

YLR 2017 KARACHI HIGH COURT SINDH 1816 #

2017 Y L R 1816

[Sindh]

Before Nadeem Akhtar and Aziz-ur-Rehman, JJ

ABDUL HAQ---Petitioner

Versus

THAKUMAL and 4 others---Respondents

C.P. No.D-4374 of 2012, decided on 13th June, 2016.

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

----Ss. 54 & 64-A---Cancellation of lease of land---Arbitration award---Setting aside of--- Revisional jurisdiction--- Scope---Natural justice, principles of---Applicability---Registered document---Cancellation of---Procedure---Arbitration award by the Registrar Co-operative Societies was set aside by the Provincial Minister---Validity---Suit land was leased out to the petitioner---Registered lease deed was in existence---Lease was cancelled but without affording any opportunity of hearing to the allottee which was against principles of natural justice---Provisions of S.64-A of Co-operative Societies Act, 1925 could not be extended or made applicable to the cases of arbitration proceedings in which award had already been made and upheld in appeal---Award in question had already been upheld in appeal by the Co-operative Housing Society---Provincial Minister, in exercise of limited revisional jurisdiction was not competent to set aside the said award which had become final in appeal---Impugned order passed by the Provincial Government/Minister was not only illegal but coram-non-judice---Once a document was registered, same could only be cancelled by another registered document or through declaration of a civil court---Impugned order was null and void which was set aside---Award by the Registrar Co-operative Societies was restored---Constitutional petition was allowed in circumstances.

Shaikh Haider v. Registrar Co-operative Societies, Karachi and others PLD 1966 (W.P) Kar. 177; Defence Housing Authority, Lahore v. Secretary to the Government of Punjab and others PLD 2006 Lah. 443; Ch. Muhammad Latif v. Province of Punjab 1997 CLC 262; Haq Dad v. Mst. Sawani and 2 others 1994 CLC 32 and Mussarat Nazir v. Malir Dvelopment Autho-rity through Director General, Memon Goth, Malir and 4 others 2009 MLD 167 ref.

Badaruddin v. Mehr Ahmad Raza, Additional Sessions Judge Jhang and 6 others 1993 PLD SC 399 and Abdul Qadir v. Abdul Majid PLD 1984 (AJ&K) 166 distinguished.

Province of Punjab through Collector Bahawalpur, District, Bahawalpur and others v. Col. Abdul Majeed and others 1997 SCMR 1692; The Majlis-i-Intizamia, Jamia Masjid, Ghulam Muhammad Abad Colony, Lyallpur v. The Secretary to Government of West Pakistan, Communication and Works Department, Lahore PLD 1975 SC 355 and Mrs. Zaibun Nisa through Attorney v. Karachi Development Authority and 5 others PLD 1998 Kar. 348 rel.

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

----S. 64-A---Jurisdiction of Provincial Government---Scope---Revisional powers under S.64-A of Co-operative Societies Act, 1925 were limited to the extent of scrutiny of administrative or departmental inquiry and/or proceedings before the subordinate officers.

Arshad Hussain Khan, Abdul Qadir Mirza and Haquedad Khoso for Petitioners.

Qazi Hafizur-Rahman for Respondent No.1.

Nemo for Respondent No.2.

Arshad Nawab for Respondent No.3.

Miran Muhammad Shah Addl. AG Sindh and Ms. Rakhshanda Waheed for Respondents Nos. 4 and 5.

YLR 2017 KARACHI HIGH COURT SINDH 1873 #

2017 Y L R 1873

[Sindh]

Before Zulfiqar Ahmad Khan, J

SAMIUR REHMAN and another---Petitioners

Versus

IIND ADDITIONAL DISTRICT JUDGE, SOUTH KARACHI and another---Respondents

C.P. No.S-464 of 2003, decided on 3rd January, 2017.

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

----S. 15---Transfer of Property Act (IV of 1882), S. 105---Sublet---Preconditions---Word 'sublet' is not defined anywhere in law, courts have usually correlated it with meaning of word 'sublease'---Lease of immovable property, according to S.105 of Transfer of Property Act, 1882, is transfer of right to enjoy such property---To create a lease or sublease, a right to exclusive possession and enjoyment of property had to be conferred on another person---If there was no parting with the possession, neither sublease nor subletting could be achieved.

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

----S. 15---Eviction of tenant---Sublet, proof of---Change of status of tenant---Tenant was a partnership firm which was incorporated as private limited company---Landlord sought ejectment of tenant on the plea that Managing Partner had sublet premises to a company---Ejectment application filed by landlord was dismissed by Rent Controller but Lower Appellate Court reversed findings and passed eviction order---Validity---In order to prove mischief of subletting as ground for eviction under law, two ingredients had to be established; (i) parting with the possession of tenancy by tenant in favour of third party with exclusive right of possession; and (ii) such parting with possession was done in lieu of compensation or rent---Tenant, in the present case, was actively associated with partnership business and retained control over tenancy premises with him---Tenant had not parted with possession---By incorporating business as private limited company, tenant had not sublet the premises---High Court set aside order passed by Lower Appellate Court as same was neither based on true appreciation of facts nor correct legal standards were applied---Constitutional petition was allowed under circumstances.

PLD 1996 Kar. 109; Manek J. Mobed v. Shah Behram PLD 1974 SC 351; State Life Insurance v. Zahoor Ahmad 2001 YLR 58; Pebbles v. Gloshtwaite 13 TLR 198; Boman Abadan Irani and others v. Jehangir J Mobed and others PLD 1967 Kar. 449; Gian Singh and Co. v. Devraj Nahar and others (1965) ALL ER 768; Roshan Ali v. The Standard Insurance Co., Ltd. 1986 CLC 953; 1989 MLD 2071; Raja Huhammad Saleem v. Rukia Rauf 2002 MLD 597; Santosh Ajit Sachdeva v. Anoopi Shahani AIR 2007 SC 3231 and Vishwa Nath v. Chaman Lal Khanna AIR 1975 Delhi 117 ref.

Shaikh F.M. Javed for Petitioners.

Mian Mushtaq Ahmed for Respondent No.2.

YLR 2017 KARACHI HIGH COURT SINDH 1916 #

2017 Y L R 1916

[Sindh]

Before Muhammad Saleem Jessar, J

DAWOOD BALOCH---Petitioner

Versus

MUHAMMAD SALEEM through Attorney and 2 others---Respondents

Constitutional Petition No.S-1250 of 2016, decided on 23rd December, 2016.

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

----Ss. 17, 5 & 24---Civil Procedure Code (V of 1908), S. 151---Specific Relief Act (I of 1877), Ss. 12 & 56---Ejectment of tenant---Interim order---Suit for specific performance of contract---Status quo order---Seeking stay of ejectment proceedings on the basis of status quo order passed in the civil suit---Expression "other legal proceedings" contained in S.24 of Cantonments Rent Restriction Act, 1963---Scope---Tenant moved petition for stay of eviction proceedings on the basis of status quo order passed in the suit filed by him---Rent Controller dismissed the application to stop ejectment proceedings---Validity---Cantonments Rent Restriction Act, 1963 had been given over-riding effect upon "anything inconsistent in any other law for the time being in force"---Remedy of an appeal against an order of Rent Controller had been provided but it did not include 'an interim order'---Constitutional petition would be included in term 'legal proceedings'---Section 151 of Civil Procedure Code, 1908 was not applicable in the proceedings under Cantonments Rent Restriction Act, 1963---Proceedings before Rent Controller were an independent proceedings which were controlled by the special law while proceedings before a civil Court were altogether different from the proceedings before Rent Controller---Filing of civil suit before or after proceedings before Rent Controller should not prejudice the competence of such independent legal 'forums'---Rent Controller was not subordinate to civil court---Civil court could not pass an order of staying the judicial proceedings pending before the Rent Controller---Proceedings before Rent Controller could not be said to be 'without due course of law or illegal'---Status quo order passed in the civil suit was not helpful to seek stay of proceedings before the Rent Controller---Tenant had not brought true fact (s) before the civil Court that he was seeking injunction for a purpose to defeat or delay a 'specific lawful proceedings' pending before a 'lawful forum'---Tenant could not use or exploite the injunction order for the purpose which was never brought to light---Injunction obtained against a person could not be used or exploited against an independent person when he was not directly or indirectly involved---If tenant had a case even then he was required to pay entire default amount on account of rent to the landlord or deposit the same before the Rent Controller---Tenant had to assert the question of title in terms of alleged sale agreement for specific performance of contract separately without exerting any pressure upon the Rent Controller---Rent Controller was directed by the High Court to decide the case within two months---Constitutional petition being not maintainable was dismissed.

Mumtaz Hussain v. Nasir Khan 2010 SCMR 1254; Iqbal Ahmed v. Muhammad Nasir and another 2016 MLD 624; 2012 SCMR 669 and Muhammad Nisar v. Izhar Ahmed Shaikh and others PLD 2014 SC 347 rel.

(b) Administration of justice---

----Departure from normal procedure should be permitted only if it was required to 'meet ends of justice' or to 'prevent abuse of the process of the Court' even it was not provided in procedural law.

----Special law would exclude the general law.

Muhammad Saleem for Petitioner.

Nemo for Respondent No.1.

Samsam Ali Khan Raza for Respondent No.2.

YLR 2017 KARACHI HIGH COURT SINDH 1957 #

2017 Y L R 1957

[Sindh]

Before Abdul Maalik Gaddi, J

FAWAD REHMAN and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos.1721 and 1866 of 2016, decided on 9th January, 2017.

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

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

----S. 497---Penal Code (XLV of 1860), Ss.419, 420, 468, 471, 109 & 34---Prevention of Corruption Act (II of 1947), S.5(2)---National Database and Registration Authorities Ordinance (VIII of 2000), S.30(f)---Cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment, common intention, public servant committed criminal misconduct, knowingly contravene the provision of the Ordinance--Bail, grant of---Further inquiry---Prosecution case against the accused persons was that they illegally managed to get issued Computerized National Identity Card with the collusion and connivance of officer of National Database and Registration Authority in order to get the property of complainant fraudulently---Offences under Ss. 419, 420, 468, 471, 109, 34, P.P.C. and offence under S.5(2) of Prevention of Corruption Act, 1947 were punishable up to seven years, while S.30(f) of NADRA Ordinance, 2000 was punishable up to five years or fine---Alleged offences against the accused persons did not fall within the parameters of restraining clause of S.497(1), Cr.P.C.---Record showed that investigation had been completed and accused persons were not required for further investigation---Nothing was available on record to show that accused persons were previously convict in such like cases---Civil litigation had already commenced in between the parties, as such evidence was required with regard to the title of the ownership in respect of the suit property---Allegations against accused persons were yet to be proved through evidence---Accused persons were behind the bars since their arrest, further detention would not serve the purpose---No exceptional circumstances appeared in the case to withhold bail---Attending circumstances suggested that case against accused persons called for further inquiry into their guilt covered by subsection (2) of S. 497, Cr.P.C.---Accused persons were allowed bail in circumstances.

Nooruddin and others v. The State 2011 SCMR 1319; Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488; Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442 and Muhammad Naseem v. The State 2012 PCr.LJ 918 ref.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 rel.

----S. 497---Bail---Non-bailable offences---Principle---Section 497, Cr.P.C. divided non-bailable offences into two categories: Offences punishable with death, imprisonment of life or imprisonment for ten years falling in first category and offences punishable for imprisonment of less than ten years falling in second category---In case of offences falling in second category, grant of bail was a rule.

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

----S. 497--- Bail--- Exceptional cases---Principles---Where offence did not fall within prohibitory clause of S.497, Cr.P.C. grant of bail had to be considered favourably as a rule and could only be declined in exceptional cases, namely, where accused was likely to abscond, tamper with prosecution evidence, repeat the offence if released and/or where accused was a previous convict.

Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488; Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708; Muhammad Younus and another v. The State 2001 PCr.LJ 157 and Muhammad Ashraf v. The State 2003 MLD 165 rel.

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

----S. 497---Bail---Principle---Observations made in bail granting order being tentative in nature, Trial Court would not consider such observations while deciding case on merit. [p. 1966] F

Aamir Mansoob Qureshi for Applicants (in Criminal Bail Application No.1721/2016).

Asif Ali Pirzada for Applicant (in Criminal Bail Application No.1866/ 2016).

Ashfaq Rafiq Janjua, Standing Counsel.

Investigating Officer/Inspector SLK Shahbaz, FIA/ACC, Karachi.

Muhammad Jawwad son of Ms. Humaira Shahid is present.

YLR 2017 KARACHI HIGH COURT SINDH 1985 #

2017 Y L R 1985

[Sindh (Sukkur Bench)]

Before Hasan Azhar Rizvi and Muhammad Humayon Khan, JJ

ABDUL LATIF and another---Applicants

Versus

Syed KOUSAR ALI SHAH BUKHARI and another---Respondents

Criminal Transfer Application No.D-160 of 2016, decided on 10th January, 2017.

Criminal Procedure Code (V of 1898)---

----S. 526---Transfer of criminal case by High Court--- Principles--- Presiding Officer---Equal protection---Scope---High Court observed that Presiding Officers were to be equally protected from frivolous transfer applications so that litigant was not in a position to overawe the Presiding Officer---While exercising to transfer cases from sub-ordinate Courts, balance had to be struck in order to ensure that cases were not transferred merely on the basis of suppositions, unfounded and conjectural apprehensions---Merely an adverse judicial order passed against a party would not solely be a sufficient ground for transfer of case as the aggrieved person had the remedy to challenge order before a higher forum---No substantial ground or material had been brought on record which might justify the transfer of case---Transfer Application was dismissed in limine.

Sameer Ehsanullah Makhzan and 3 others v. Muhammad Asif Zaman and 3 others PLD 1993 Lah. 554 and Mian Muhammad Rafiq Saigol v. BCCI and others 1996 CLC 1390 rel.

Nizamuddin Baloch for Applicants.

Saleem Akhtar Buriro, Additional P.G. for the State.

YLR 2017 KARACHI HIGH COURT SINDH 2006 #

2017 Y L R 2006

[Sindh]

Before Salahuddin Panhwar, J

SHAHID SYED---Plaintiff

Versus

TOTAL PARCO MARKETING LTD. through Company Secretary and another---Defendants

Suit No.920 of 2015, decided on 18th August, 2016.

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

----O. XXXIX, Rr.1 & 2 & O. VII, R.11---Easements Act (V of 1882), Ss. 52, 62, 63 & 64---Application for restraining defendants from interference with the plaintiff's possession of suit property---Lease of land---Cancellation of---License for installation of filling station and CNG---Grant of temporary injunction---Installation of filling station without agreement with the owner of suit land---Effect---License issued in favour of plaintiff could not authorize/entitle him to acquire any right, title and interest against the owner of land---Plaintiff under license of CNG filling station had earned the status of 'operator' only over the subject matter while surrendering exclusion of his rights in favour of company---Plaintiff could not claim a right against the owner of suit land---Ejectment proceedings had ended in favour of owner of land where filling station had been installed---Plaintiff could not seek an exception to such earned right of defendant merely by referring to his status of 'dealer or operator'---No suit could sustain against a person unless it was established that plaintiff had independent legal character against such person---No one could keep an earned right with reference to act or omission of some other person else a lis---Plaintiff had no agreement with the owner of leased land---Plaintiff had to sail or sink with the licensee---Plaintiff had no independent legal character to maintain the suit---Grant of license was independent upon competence of the grantor in respect of immovable property---Competence of grantor only could create a right---Plaintiff and grantor were aware of legal status and competence of dealer---Order of ejectment of defendant could bring an end to such right (license)---Company on its ejectment from suit property had no right and authority to appoint its 'dealer or operator' for selling its product at the suit property---Suit of plaintiff was not maintainable in circumstances---Plaintiff could not defeat or delay a lawful order of a competent Court i.e. ejectment order through independent suit---Trial in the present suit would be a futile exercise---Plaint was rejected in circumstances.

Case law Referred.

(b) Judgment---

----Judgment in rem---Scope.

If an adjudication decides status of some particular things or subject-matter relating to a "right or status" of a person it shall be a 'judgment in rem' and shall be of binding effect upon all claiming any interest in such thing or subject-matter.

----What one could not get directly he/she could not get it indirectly.

(d) Words and phrases---

----'Dealer'---Meaning.

Case law Referred.

(e) Words and phrases---

---'License'---Meaning.

License means a revocable permission to commit some act that would otherwise be unlawful, esp., an agreement (not amounting to a lease or profit a prendre) that it will be lawful for the licensee to enter the licensor's land to do some act that would otherwise be illegal, such as hunting game.

Case-law referred.

Salahuddin Ahmed for Plaintiff.

Iftikhar Jawed Qazi for Defendants Nos. 1 and 2.

Arshad Tayabali for Defendant No.3.

YLR 2017 KARACHI HIGH COURT SINDH 2052 #

2017 Y L R 2052

[Sindh]

Before Naimatullah Phulpoto and Ghulam Qadir Leghari, JJ

RASHID ASLAM and another---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 5, 7 and Confirmation Case No.1 of 2012, decided on 25th June, 2016.

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

----Ss. 302(b), 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security, etc., common intention, act of terrorism---Appreciation of evidence---Retracted confession---Scope---Prosecution case was that son of complainant was allegedly abducted by the accused and co-accused for ransom but he was later on murdered by them---Accused had made confessional statement before the Judicial Magistrate but they denied their confessional statement and had alleged that their alleged confessions were involuntary and was recorded after delay of fourteen days---Validity---Prosecution had not derived any undue advantage due to delay in recording confessions, as such said factor in no way adversely affected the voluntariness of confession---Record showed that both the accused were educated persons---If police wanted confessions on account of any coercion, accused persons had full opportunity to refuse the making of confessions before the Judicial Magistrate but it was not done---Confessions were corroborated by other evidence and appeared to have been made voluntarily, without any inducement or coercion---Mere fact that there were some irregularities in recording of confession would not warrant disregarding the same---Appeal against conviction was dismissed in circumstance.

Case-law referred.

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

----Ss. 302(b), 365-A & 34---Qanun-e-Shahadat (10 of 1984), Art.40---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security, etc., common intention, act of terrorism---Appreciation of evidence---Discovery based on the information furnished by both the accused---Effect---Record showed that after arrest both accused led the police to the place where they had thrown the dead body of son of the complainant---Both the accused had led police to the house, where they had confined the deceased---Accused had shown store in the house where they committed murder of the deceased with wire by strangulation and college card of the deceased was recovered underneath the bed---No explanation had been furnished by accused as to how they had the knowledge of place where dead body was thrown---No explanation had been furnished by accused as to how they led police to house where they had committed murder of deceased by way of strangulation---Circumstances established that accused were the persons who had thrown dead body at the place pointed out by them and they had committed murder in the house as pointed out---Information furnished by the accused persons to the Investigating Officer could be used against them under Art. 40 Qanun-e-Shahadat, 1984---Appeal against conviction was dismissed in circumstances.

Case-law referred.

----Ss. 302(b), 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security, etc., common intention, act of terrorism---Appreciation of evidence---Delay in lodging FIR--- Effect--- Accused had contended that there was delay of two days in lodging the FIR for which no plausible explanation had been furnished---Record showed that delay in lodging FIR had been adequately explained and accounted for---Mere delay in lodging FIR was not always fatal to the prosecution case---In the present case, young boy was kidnapped for ransom--- Complainant invariably endeavoured his best to locate his son rather than promptly lodging of FIR for fear of death of victim which was some time proved to be counterproductive---Circumstances established that no adverse inference could be drawn against the prosecution on the ground of delay alone in lodging FIR---Appeal against conviction was dismissed in circumstances.

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

----Ss. 302(b), 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security, etc., common intention, act of terrorism---Appreciation of evidence---Identification parade---Accused persons had contended that both accused were not put to identification parade separately and their photographs had been published in daily newspapers---Validity---Holding of identification parade was not mandatory and it was merely a corroborative piece of evidence---Accused were identified by the witnesses in the court, which identification was confidence inspiring---Question of correct identification did not arise on the basis of momentary glimpse of the accused---Evidence transpired that the witnesses identified accused before the Magistrate and before Trial Court---Appeal against conviction was dismissed in circumstances.

Case-law referred.

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

----Ss. 302(b), 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security, etc., common intention, act of terrorism---Appreciation of evidence---Constitution of offence---Prosecution case was that real son of complainant was allegedly abducted by the accused and co-accused for ransom but he was later on murdered by them---Accused contended that the evidence brought on the record did not establish kidnapping for ransom---Deceased having been murdered by the accused without the payment of ransom was not believable---Validity---Held, it was not necessary that money must have passed on to the culprit nor it was necessary that the victim must have been released, for the constitution of offence under S. 365-A Penal Code, 1860---In the present case, complainant had deposed that his son was kidnapped for ransom---Complainant had received call for ransom, as such motive behind the occurrence was proved through overwhelming evidence---Case of prosecution was based on circumstantial evidence, recovery of articles, confessions, pointation of place where dead body was thrown, pointation of place where deceased was murdered, recovery of identity card of the deceased underneath the bed, which connected the accused persons with the commission of offence---Appeal against conviction was dismissed in circumstance.

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

----Ss. 302(b), 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security, etc., common intention, act of terrorism---Appreciation of evidence---Circumstantial evidence---Sentence---Principles---Death sentence could be awarded on circumstantial evidence, provided all circumstances constituted a chain and no link was missing and their combined effect was that the guilt of the accused was established beyond any shadow of doubt.

Case-law referred.

Abdul Qadir Halepota for Appellant (in Special Cr. ATA No.05/2012).

Muhammad Ashraf Kazi for Appellants (in Spl. Cr. ATA No. 07/2012).

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

Muhammad Ilyas Khan and Jamil Ahmed Rajper for the Complainant.

YLR 2017 KARACHI HIGH COURT SINDH 2091 #

2017 Y L R 2091

[Sindh]

Before Nadeem Akhtar and Fahim Ahmed Siddiqui, JJ

MUHAMMED ASHRAF and another---Petitioners

Versus

FAISAL CANTONMENT BOARD through Executive Officer and another---Respondents

Constitutional Petition No.D-1642 of 2016, decided on 14th March, 2017.

Cantonments Act (II of 1924)---

----S. 25---Establishment of bachat bazaar on service road--- Scope--- Powers contemplated in S.25 of Cantonments Act, 1924 could be exercised only in case of an emergency and only in cases where the question of service or safety of public was involved---Nothing was on record that impugned action was necessary to encounter some emergency---Impugned action had been taken by the authorities without fulfilling the condition precedent specified in S.25 of Cantonments Act, 1924---No public street, road, thoroughfare or footpath could be allowed by authorities to be used for any commercial or other purpose---Public property including public street, road, thoroughfare or footpath was meant for the use and enjoyment of general public which could not be leased to any private or third party nor could any type of third party interest be created therein---Government was bound to keep the public street, road, thoroughfare, footpath and public property free from all types of encroachments and claims---Impugned contract for setting up bachat bazaar on the service road and its footpath was declared to be illegal---Bachat bazaar should not be held at the present site---Constitutional petition was allowed in circumstances.

Ali Zaidi for Petitioners.

Nadeem Ahmed Rana along with Ashraf Ali and Muhammad Kamal Khan, Members of Cantonment Board Faisal for Respondent No.1.

Miran Muhammad Shah, Additional Advocate-General, Sindh for Respondent No.2.

YLR 2017 KARACHI HIGH COURT SINDH 2105 #

2017 Y L R 2105

[Sindh]

Before Zafar Ahmed Rajput, J

Maj. (R) MUHAMMAD IQBAL HUSSAIN through Attorney---Appellant

Versus

Col. (R) SADIQ HUSSAIN SHEIKH through Legal Representatives and another---Respondents

Second Appeal No.50 of 2009, decided on 15th March, 2017.

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

----Ss. 12 & 22---Contract Act (IX of 1872), S.55---Suit for specific performance of agreement to sell---Discretionary relief---Time as essence of contract---Scope---Suit was dismissed concurrently---Validity---Parties had agreed to sell on the condition that if plaintiff did not finalize the purchase by 1st July 1994, his advance money would stand confiscated---Parties to the agreement to sell had desired adherence to the time and any deviation from the time clause would entail penal consequences---Plaintiff had failed to prove that he was prepared to perform his part of contract---Plaintiff was not entitled to decree for specific performance which was discretionary relief---Discretion was to be exercised judiciously on recognized principles and not arbitrarily---Discretion could only be exercised in favour of plaintiff where he had done substantial acts or suffered losses in consequence of a contract capable of specific performance---Time was the essence of contract in the present case---Plaintiff had failed to perform his part of contract---No substantial error or procedural defect resulting in erroneous or defective decision had been pointed out in the impugned judgments passed by the Courts below---Second appeal was dismissed in circumstances.

Seth Essabhoy v. Saboor Ahmed PLD 1973 SC 39; Messrs Pioneer Housing Society (Pvt.) Limited through Managing Director v. Messers Babar and Company and 2 others PLD 1999 Lah. 193; Bashir Ahmed v. Abdul Majid and 7 others 1992 CLC 1069; Muhammad Ayyub Khan v. Ch. Muhammad Aslam and another 1984 CLC 2259; Sandoz Limited and another v. Federation of Pakistan and others 1995 SCMR 1431; Muhammad Yaqub v. Muhammad Nasrullah Khan and others PLD 1986 SC 497; Zaheer Ahmad and another v. Abdul Aziz and others 1983 SCMR 559 and Eckhardt and Company Marine GMBH, West Germany and another v. Muhammad Hanif PLD 1986 Kar. 138 ref.

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

----S. 100---Second appeal---Scope---High Court in second appeal could not interfere with concurrent finding of facts recorded by the Courts below even if it disagreed with that finding on its own view of evidence.

M.G. Dastagir and Nasir Mufti for Appellant.

M. Masood Khan and Amna Usman for Respondent No.1.

Nemo for Respondent No.2.

YLR 2017 KARACHI HIGH COURT SINDH 2115 #

2017 Y L R 2115

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

Messrs TELENOR PAKISTAN (PVT.) LTD. through Authorized Representative---Petitioner

Versus

Mst. SURRAYYA KHATOON and 2 others---Respondents

C.P. No.S-3305 of 2014, decided on 11th April, 2016.

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

----S. 15---Transfer of Property Act (IV of 1882), S. 107---Registration Act (XVI of 1908), Ss. 17(d) & 49---Ejectment of tenant--- Lease agreement--- Non-registration of lease agreement---Effect---Personal bona fide need of landlady---Scope---Lease for a fixed period revocable under a written notice by either party was not a lease in perpetuity---Any instrument or lease agreement for tenancy executed between landlord and tenant for a period exceeding one year was compulsory registerable---No document required to be registered would operate to create, declare, assign, limit or extinguish any right, title or interest in immovable property---Unregistered lease agreement was not a legal document and same would not create lease in perpetuity---Such unregistered deed was inadmissible in evidence---Lease agreement executed between the parties was not a registered document---Tenant could not agitate its right of tenancy for the period of 15 years on the basis of an unregistered rent lease deed---Tenant could not challenge the validity of power of attorney executed by the landlord in favour of his attorney to file rent application---Only landlady could controvert the authority of her attorney---Landlady had not challenged the authority of her attorney---Attorney of landlady had been permitted to do every lawful act which was essential in order to achieve the subject purpose---Every act done by the attorney would be deemed to have been done by the landlady---Sole testimony of landlady was sufficient to establish her personal bona fide need for demised premises---If statement of landlady on oath was consistent with the averments made in the ejectment petition then same would be sufficient for acceptance of eviction petition---Landlady had right to select and choose any of the specific premises for her personal bona fide requirement and no restriction or embargo could be imposed upon such requirement by the tenant---Landlady had succeeded to prove her personal bona fide requirement in good faith---No illegality, material infirmity or non-appreciation of evidence had been pointed out in the impugned order---Tenant was directed to vacate and handover peaceful possession of demised premises to the landlady within 90 days and in case of failure Executing Court should issue writ of possession directly with police aid without issuing notice to the tenant---Constitutional petition was dismissed in circumstances.

1996 SCMR 1767; 1992 SCMR 1457; PLD 1980 SC 298; PLD 2012 SC 764 and PLD 2004 Kar. 17 ref.

Habib Bank Ltd. v. Dr. Munawar Ali Siddqui 1991 SCMR 1185; Muhammad Shafi Choudhary v. Saeed Ahmed 1996 SCMR 1784; Muhammad Rafique v. Messrs Habib Bank Ltd. 1994 SCMR 1012; Master Enterprises (Pvt.) Ltd. v. Additional District and Sessions Judge, Karachi South and 2 others 2012 CLC 1532; Iqbal Book Depot and others v. Khatib Ahmed and 6 others 2001 SCMR 1197; S.M. Noorddin and 9 others v. Saga Printers 1998 SCMR 2119; Jahangir Rustam Kakalia through legal heirs v. Messrs Hashwani Sales and Services (Pvt.) Ltd. 2002 SCMR 241 and United Bank Ltd. v. Mrs. Alafia Hussain 1999 SCMR 1796 rel.

Sajjad Muhammad Zangejo for Petitioner.

Faisal Naeem for Respondents.

YLR 2017 KARACHI HIGH COURT SINDH 2141 #

2017 Y L R 2141

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

Mst. SHAHZADI alias AMIRZADI---Applicant

Versus

The STATE---Respondent

Cr. Bail Application No.789 of 2015, decided on 3rd December, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing and trafficking of narcotics---Bail, grant of---Further inquiry---Both co-accused had already been enlarged on bail---No criminal record of accused existed and she was never challaned in any criminal case---Averments of FIR were silent as to in which shape alleged charas was recovered---Record though did not show that nine pieces of charas were recovered from the possession of accused, but Chemical Examiner had mentioned that nine pieces of charas were examined by him---Recovered charas was also not weighed at the spot and total weight was mentioned approximately, which required serious consideration---Investigation had already been completed, and accused was no more required for investigation---Bail could not be withheld as matter of punishment---Trial could not be concluded within time, due to non-production of under trial prisoner and non-availability of witnesses---After lapse of six months not a single witness had been examined by the prosecution---Complainant, despite prior information neither associated any independent witness, nor he made any serious efforts to hire public person to maintain the transparency of recovery---Accused being a lady of old age was entitled for concession of bail---Accused had made out a case for grant of bail on the ground of further inquiry, she was admitted to post-arrest bail, in circumstances.

Ghulam Mujtaba Jakhar for Applicant.

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

YLR 2017 KARACHI HIGH COURT SINDH 2155 #

2017 Y L R 2155

[Sindh]

Before Aqeel Ahmed Abbasi and Arshad Hussain Khan, JJ

CONTINENTAL BISCUITS LTD.---Petitioner

Versus

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

C.P. No.D-6377 of 2014, decided on 23rd February, 2017.

(a) Constitution of Pakistan---

----Arts. 77, 162 & 163---Levy of tax and fee etc.---Principle---Fiscal and charging statutes are to be strictly construed---No government or authority can compulsorily extract money from any class of persons either in form of tax, fee, charge or levy, unless specifically authorized under law.

(b) Interpretation of statutes---

----Delegated legislation---Levy of fee---Scope---When a parent statute (the governing law) does not empower levy of fee, then levy of such fee through delegated legislation in shape of by-laws is not permissible.

----"Fee" and "Tax"---Distinction---"Tax" is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment for services rendered whereas, "fee" may be generally defined to be a charge for a special service rendered to individuals by some government agency or a local council under principle of quid pro quo.

Collector of Customs v. Sheikh Spinning Mills 1999 SCMR 1402; McCarthy and Stone (Developments) Ltd. v. London Borough of Richmond upon Thames 1994 SCMR 1393 and Lucky Cement Factory v. Government of N.W.F.P. 2013 SCMR 1511 rel.

(d) Cantonments Act (II of 1924)---

---Ss. 282, 284 & 286-B---Advertisement fee, charging of---Delegation of powers---Principle of Quid pro quo---Applicability---Petitioner company was aggrieved of demand notice issued by a private company for recovery of advertisement fee on behalf of Cantonment Board with regard to signboards and advertisements affixed in private shops--- Validity--- Cantonment Board was not providing any service to petitioner for displaying and advertising its products on billboards/signboards of shops on its private vendors/retailer shops---Such was a private arrangement between petitioner and shopkeepers---Petitioner used billboards/signboards of shops to advertise its products at the expense of petitioner---High Court declared illegal, money demanded by private company under the name of 'advertisement fee' without providing any services in respect thereof, on principle of quid pro quo---Cantonment Board could not delegate power to a private person and could only delegate the same to its own officers---Delegation of sovereign right to levy or collect any tax by State to private person was otherwise contrary to Constitutional mandate---Such delegation of power to private company to collect subject levy was unlawful---High Court quashed proceedings pending before Magistrate for recovery of advertisement fee---Constitutional petition was allowed in circumstances.

Hyderabad Cantonment Board v. Raj Kumar 2015 SCMR 1385; Excide Pakistan Ltd. v. Cantonment Board 2012 CLC 1124; Treet Corporation Ltd. v. Government of Pakistan PLD 1992 Kar, 427; Pioneer Traders v. Province of Sindh PLD 2006 Kar. 648; Haji Hashmatullah and others v. Karachi Municipal Corporation and others PLD 1971 Kar. 514; Kohinoor Textile v. Federation of Pakistan 2002 PTD 121; Government of North-West Frontier Province v. Rahimullah 1992 SCMR 750; All Pakistan Textile Mills Association v. Province of Sindh 2004 YLR 192; Dubai Islamic Bank Pakistan Ltd. v. Federation of Pakistan 2014 MLD 957; Khawaja Muhammad Asghar v. Government of Pakistan through Secretary, Ministry of Defence, Islamabad and 3 others 2012 MLD 415; Cantonment Executive Officer and another v. Burshane (Pakistan) Ltd. and others 1986 SCMR 1308; Rajkumar v. Hyderabad Cantonment Board 2006 MLD 549 and Munawar Younus and others v. Karachi Cantonment Board 2011 MLD 1006 ref.

Atif Chaudhary for Petitioner.

Mir Hussain, Standing Counsel for Respondent No.1.

Rafiq Ahmed for Respondent No.2.

YLR 2017 KARACHI HIGH COURT SINDH 2179 #

2017 Y L R 2179

[Sindh (Larkana Bench)]

Before Salahuddin Panhwar, J

SAEED AHMED---Appellant

Versus

The STATE---Respondent

Crl. Appeal No.S-45 of 2012, decided on 28th September, 2015.

Penal Code (XLV of 1860)---

----Ss. 354-A, 452 & 34---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Outraging modesty of woman and trespassing with common intention---Appreciation of evidence---Withholding of evidence---Motive not proved---Case property not produced---Complainant alleged that accused persons entered in her house and torn her clothes and outraged her modesty when her husband and brother were present---Husband and brother of complainant were natural witnesses and their evidence had status of material evidence in absence whereof it was not safe to hold conviction---No reasons were assigned by prosecution for non-examination of such material witnesses---Withholding of material witnesses without any legal and plausible justification could result into adverse inference against the one withholding such evidence---Conviction could well be maintained on a solitary statement of witness but it was not safe where prosecution claimed eye witnesses and their presence was otherwise natural at such relevant time---Non-appearance of husband and brother to support charge of assault upon wife/sister ought to have been appreciated by Trial Court within four corners so sketched by relevant law and guidelines by Supreme Court which prima facie had not been done---Motive was not shown and without any enmity there was no purpose of outraging modesty of a woman by entering in her house in presence of male members and it was not appealable to a prudent mind---Prosecution was duty bound to prove its case against accused beyond reasonable doubt---Case property was torn clothes but same were not shown or identified by complainant before Trial Court---Prosecution produced nothing, except words of complainant---High Court set aside conviction and sentence awarded by Trial Court as prosecution story lacked logical reasons and was not free from doubts, resultantly accused was acquitted of the charge---Appeal was allowed in circumstances.

Shahzad Tanveer v. State 2012 SCMR 172; Shamim v. State 2003 SCMR 1466 and Lal Khan v. State 2006 SCMR 1846 ref.

Athar Abbas Solangi for Appellant.

Shahzado Saleem Nahiyoon, Assistant Prosecutor General for the State.

YLR 2017 KARACHI HIGH COURT SINDH 2197 #

2017 Y L R 2197

[Sindh]

Before Arshad Hussain Khan, J

Syed SAJID RAZA through Registered Attorney---Plaintiff

Versus

CITY DISTRICT GOVERNMENT, (K.D.A. Wing) through District Coordination Officer and 5 others---Defendants

Suit No.1376 of 1997, decided on 31st January, 2017.

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

----Ss. 42 & 39---Suit for declaration---Lease of land---Cancellation of---Contention of authorities was that lease in favour of plaintiff was forged and bogus---Validity---Law authorized a person to seek enforcement of his right to any property by instituting a suit against a person denying his right or title---Suit property was leased in favour of plaintiff---Nothing was on record that plaintiff committed any fraud with regard to transfer of suit property---Plaintiff raised constructions on the suit property after occupying the same---Lease deed in favour of plaintiff was registered document which had presumption of truth---Strong and cogent evidence was required to rebut the said lease deed---Authorities had failed to rebut lease deed in favour of plaintiff--Registered instrument could only be cancelled in terms of S.39 of Specific Relief Act, 1877---Lease deed had not been got cancelled by the Authorities---No one could be deprived of his property except by following due process of law---Transfer of suit property in favour of defendants was illegal and encroachment on the right of plaintiff---Suit was decreed in circumstances.

Muhammad Iqbal and others v. Fakhar-ul-Islam and 3 others 2004 MLD 888; Sabir Hussain and 6 others v. Eisa and 2 others 2004 MLD 963; Moinuddin Paracha and 5 others v. Sirajuddin Paracha and 22 others 1994 CLC 247; Muhammad Rafique alias Rafique Ahmad v. Abdul Hameed and 2 others 2002 SCMR 1981 and Talib Hussain and others v. Member, Board of Revenue and others 2003 SCMR 549 ref.

Mirza Muhammad Sharif and 2 others v. Mst. Nawab Bibi and 4 others 1993 SCMR 462; Parveen Begum and another v. Shah Jehan and another PLD 1996 Kar. 210; Abdul Razzak Khamosh v. Abbas Ali and others PLD 2004 Kar. 269; Ghulam Ghous v. Muhammad Yasin and another 2009 SCMR 70; Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 and Abbas Ali Shah and 5 others v. Ghulam Ali and another 2004 SCMR 1342 rel.

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

----O.I, R.9---Necessary and non-necessary parties---Meaning and scope---'Necessary Parties' are those parties from whom relief is claimed---Whereas 'Non-necessary parties' are those parties who may be party to the suit, but from whom no relief has been claimed.

----Public functionaries were expected to act in fairness and reasonableness.

Sikandar Khan for Plaintiff.

Mirza Adil Baig for Defendant No.3.

Ms. Shabana Ishaq for Defendant No.6.

YLR 2017 KARACHI HIGH COURT SINDH 2224 #

2017 Y L R 2224

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

Dr. SHAKEELA through Attorney---Applicant

Versus

Dr. AKEEL AHMED---Respondent

Family G & W Transfer Appln. No.13 of 2015, decided on 19th January, 2016.

Family Courts Act (XXXV of 1964)---

----S. 25-A(2)---Guardians and Wards Act (VIII of 1890), Ss.12 & 25---Custody of minor---Transfer application---High Court, jurisdiction of---Applicant was mother of minor who filed application for custody of minor---Respondent was father of the minor who was aggrieved of not producing the minor for meeting with him, therefore, he filed application under S. 100, Cr.P.C. for recovery of minor to have right to meet his son---Validity---Applicant had alternate legal remedy to agitate her grievances by approaching District Court by preferring transfer application but she directly filed the same before High Court which showed mala fide on her part to develop pressure upon Trial Court which was competent to pass appropriate orders on application under S. 100, Cr.P.C., moved by father of minor---No restraining order passed by Lower Appellate Court existed in appeal filed by applicant and mere filing of appeal against order passed by Trial Court did not put any embargo upon Trial Court from conducting further proceedings in main case---High Court declined to transfer (guardian) application to any other court---Application was dismissed in circumstances.

Bakhshan Khan Mahar and Illahi Bux Jamali for Applicant.

Shabir Ali Bodar for Respondent.

A.R. Kolachi A.P.G.

YLR 2017 KARACHI HIGH COURT SINDH 2240 #

2017 Y L R 2240

[Sindh]

Before Muhammad Humayon Khan, J

MUHAMMAD IRFAN MEMON---Petitioner

Versus

Ms. ASMA MEMON and 3 others---Respondents

Constitution Petition No.980 of 2016, decided on 12h July, 2016.

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

----Ss. 12 & 25---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Interim custody of minor---Mother filed application for interim custody of minors which was dismissed by the Guardian Judge but Appellate Court accepted the said application---Validity---Guardian Judge was bound to do substantial justice in the case of interim custody of minor and should not act in harsh manner by keeping balance between the father and mother---High Court could modify the order or relief given by the courts below---Constitutional petition against the order of interim custody of minor was not maintainable---Guardian Judge was directed by High Court to proceed with the matter day to day and decide the same on merits within three months---Constitutional petition was dismissed in circumstances.

2014 MLD 330 and 2014 MLD 1137 ref.

Mehrab Khan through attorney v. Province of Sindh and others 2005 CLC 441; Dr. Iqbal Jan and others v. Province of Sindh and others 2014 PLC 1153 and Asif Kudia and others v. Messrs KASB Bank Ltd. and others 2015 CLC 1734 rel.

Muhammad Ishaque Memon for Petitioner.

Irfan Ahmed Qureshi for Respondents.

YLR 2017 KARACHI HIGH COURT SINDH 2262 #

2017 Y L R 2262

[Sindh]

Before Arshad Hussain Khan, J

ISRARUL HAQ and 7 others---Petitioners

Versus

NOORUDDIN and 3 others---Respondents

C.P. No.S-52 of 2006, decided on 27th February, 2017.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court--- Scope--- Constitutional jurisdiction being discretionary was limited and not plenary in nature---High Court in constitutional jurisdiction could not reappraise the entire evidence where there were concurrent findings of facts in the matter.

1986 SCMR 751 ;1987 CLC 2439 and 1990 MLD 2300 ref.

Messrs Mehraj (Pvt.) Ltd. v. Miss Laima Saeed and others 2003 MLD 1033 rel.

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

----Art.78---Document---Burden of proof---Whenever any document/instrument was disputed/challenged, burden would lie on the beneficiary of the transaction to prove the document as well as original transaction.

Fida Hussain v. Murid Sakina 2004 SCMR 1043 and Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah and others 2007 SCMR 1884 rel.

Abdullah Chandio for Petitioners.

Qaisar Hassan Khan and Altaf Hussain for Respondent No.4.

YLR 2017 KARACHI HIGH COURT SINDH 2284 #

2017 Y L R 2284

[Sindh]

Before Naimatullah Phulpoto and Aftab Ahmed Gorar, JJ

ABDUL QADIR alias FAUJI---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.102 and Confirmation Case No.3 of 2013, decided on 17th March, 2016.

Penal Code (XLV of 1860)---

----S. 396---Criminal Procedure Code (V of 1898), Ss.342 & 537---Qanun-e-Shahadat (10 of 1984), Arts.2(c), 71 & 132---Dacoity with murder---Appreciation of evidence---Failure of Trial Court to record statement of accused under S.342, Cr.P.C. in accordance with law---Effect---Trial Court had not recorded statement of accused under S.342, Cr.P.C., in accordance with law---Certain material questions/incriminating pieces of evidence were not put to accused for his explanation/reply---Law required that all incriminating pieces of evidence available on record, were to be put to accused under S.342, Cr.P.C.---Not only the circumstances appearing in the Examination-in-Chief were to be put to accused, but circumstances appearing in cross-examination or re-examination, were also required to be put, if those were against accused, because the evidence would mean Examination-in-Chief, cross-examination and re-examination, as provided under Arts.132, 2(s) & 71 of Qanun-e-Shahadat, 1984---Portion of evidence, was not put to accused in his statement under S.342, Cr.P.C., enabling him to explain the circumstances, particularly when accused led Police to place where he had buried the dead body---If any piece of evidence, was not put to accused in his statement under S.342, Cr.P.C., same could not be used against him for his conviction---Trial Court, did not perform its function diligently and taken the matter lightly and in a casual manner awarded death sentence to accused---Accused was prejudiced in his trial and defence; miscarriage of justice had occurred in the case---Procedure adopted by Trial Court was illegal which could not be cured under S.537, Cr.P.C. and had vitiated the trial---Impugned judgment was liable to be set aside, in circumstances---Case was remanded to the Trial Court for retrial from the stage of recording the statements of accused under S. 342, Cr.P.C. and re-write the judgment in accordance with law.

Habibullah alias Bhutto and 3 others v. The State PLD 2007 Kar. 68; Muhammad Hassan v. The State Criminal Appeal No.292 of 2009 and Muhammad Nawaz and others v. The State and others 2016 SCMR 267 ref.

Abdul Rasheed Nizamani for Appellant.

Muhammad Iqbal Awan, Assistant Prosecutor General Sindh for Respondents.

YLR 2017 KARACHI HIGH COURT SINDH 2308 #

2017 Y L R 2308

[Sindh]

Before Shahnawaz Tariq, J

RAEES KHAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1297 of 2016, heard on 17th October, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(b)---Possession of narcotic drugs, etc.---Bail, grant of---Further inquiry---Accused was apprehended at the Airport and allegedly twelve polythene packets containing 580 grams crystalline amphetamine were recovered from his suit-case during scanning the baggage---Recovered packets were not weighed separately---Lodging the FIR prior to preparation of recovery and arrest was deviation from prescribed procedure and violation of principles of administration of criminal justice, which had created doubt about sealing and weighing of recovered narcotic substance---Challan had been submitted before the Trial Court and during period of more than five months charge had not been framed---No probability of early commencement of trial existed---Witnesses were government officials, hence there was no apprehension of tampering with prosecution evidence---Alleged offence was punishable up-to seven years which did not fall within ambit of restraining clause of S. 497(2), Cr.P.C.---Accused had succeeded to make out case for grant of post-arrest bail on the ground of further inquiry as contemplated under S. 497(2), Cr.P.C.---Bail was granted accordingly.

Sikandar Ali Shar for Applicant.

Dilharram Shaheen, Spl. Prosecutor Customs for Respondent.

YLR 2017 KARACHI HIGH COURT SINDH 2327 #

2017 Y L R 2327

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

Syed KOUSAR ABBAS SHAH and 2 others---Applicants

Versus

The STATE---Respondent

Cr. Misc. A. No.S-278 of 2014, decided on 25th April, 2016.

Criminal Procedure Code (V of 1898)---

----S.561-A---Accused persons by an application under S.561-A, Cr.P.C. challenged the order passed by Judicial Magistrate whereby he declined summary report under "C" class---Parties were disputed over a plot which was allocated for imambargah---Complainant directly filed the application before Justice of Peace without approaching the concerned police station---Version of complainant before the Justice of Peace and in FIR was different as she did not implicate police officials in FIR---All the accused were close relatives of complainant residing in neighbourhood thus complainant could not claim them as unknown persons---Civil litigation was result of criminal cases---No evidence was available on record with regard to alleged occurrence taking place in the house of complainant---Complainant had failed to produce the labourers for recording of statement under S. 161, Cr.P.C. in order to support the version in FIR---Neither complainant nor witnesses sustained any injury at the hands of accused though they were allegedly armed and complainant party was at the mercy of accused---Magistrate had not properly examined the material nor furnished any solid grounds for declining summary report---Summary report filed by investigating officer under "C" class was approved and criminal miscellaneous application was disposed of accordingly.

Abdul Qadir Shaikh for Applicant No.1.

Abdul Rahman Kolachi, Assistant Prosecutor for the State.

Mst. Bibi Jamila for the Complainant.

YLR 2017 KARACHI HIGH COURT SINDH 2341 #

2017 Y L R 2341

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

ABDUL REHMAN and 8 others---Petitioners

Versus

LAL MUHAMMAD and 2 others---Respondents

Cr. Revision Application No.S-110 of 2015, decided on 5th April, 2016.

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

----Preamble---Object and scope of Illegal Dispossession Act, 2005---Illegal Dispossession Act, 2005, is a special enactment promulgated to protect the lawful owners and occupiers of immovable property from illegal and forcible dispossession from the property grabbers---Act provided the distinctive procedure for initiating action and taking cognizance for the offence of forcible dispossession---Trial Court was bound to follow the parameters contemplated in the Illegal Dispossession Act, 2005, while taking cognizance of the offence within the meaning of owner or occupier of land in dispute.

Mst. Inayat Khatoon and others v. Muhammad Ramzan and others 2012 SCMR 229 rel.

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

----Ss. 4 & 8---Criminal Procedure Code (V of 1898), S. 561-A---Cognizance of offence, delivery of possession of property to owner---Complainant had alleged that he was owner of agriculture land, which was cultivated by him and his brother---Respondents were trying to occupy his land and also the adjoining land, which was the Muhag of the land of complainant---Complainant moved applications to the high officials including police but neither his grievance was resolved nor any action was initiated in that context---Complainant approached the local police for the registration of FIR but of no avail so he filed direct complaint with the prayer for delivery of possession of his agriculture land---Bailable warrants were issued against the accused persons by the Trial Court---Validity---Complainant in his direct complaint had neither mentioned the details of survey numbers owned by him nor total covered area of the land in question had been disclosed from which, he was allegedly dispossessed by the applicants/accused nor any other sound supportive material had been placed on record to establish his exclusive possession over the adjoining land being the Muhag of his land as per requirement of law----Circumstances reflected that complainant had failed to comply with the basic requirements of law as contemplated in the Illegal Dispossession Act, 2005---Application was allowed by setting aside the order passed by the Trial Court for issuing bailable warrants of applicants.

Mujeeb-ur-Rehman Soomro for Applicants.

Muhammad Rehan Khan Durrani for Respondent No.1.

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

YLR 2017 KARACHI HIGH COURT SINDH 2364 #

2017 Y L R 2364

[Sindh]

Before Zafar Ahmed Rajput, J

SADAQAT ASGHAR HUSSAIN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1834 of 2016, decided on 23rd January, 2017.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 336 & 34---Itlaf-i-salahiyyat-i-udw, common intention---Ad-interim pre-arrest bail, recalling of---Prosecution case was that accused had given blow of something on the right eye of complainant, resultantly, his eyesight was lost---Admittedly, alleged incident had taken place in the shop of accused, where complainant had permanently lost vision due to trauma---Medico-legal report suggested that some hard and blunt substance had hit on the eye of the complainant due to which he got five stitches besides loosing vision of his right eye---Act of accused was punishable with imprisonment for ten years---Accused had failed to show that he was falsely implicated in the case for extraneous consideration and ulterior motive---Malice and ulterior motive either on the part of the complainant or the police were conspicuously missing in the case---Bail application was dismissed and the interim pre-arrest bail allowed to the accused was recalled accordingly.

Muhammad Shafiq and 6 others v. The State 2016 MLD 561; Zaigham Ashraf v. The State and others 2016 SCMR 18 and Manak v. The State and another 2016 YLR Note 94 ref.

Hasnain Ali Chohan for Applicant.

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

Complainant in person.

YLR 2017 KARACHI HIGH COURT SINDH 2372 #

2017 Y L R 2372

[Sindh (Larkana Bench)]

Before Nazar Akbar and Muhammad Saleem Jessar, JJ

FIDA HUSSAIN and 3 others---Petitioners

Versus

The SECRETARY LOCAL GOVERNMENT and 4 others---Respondents

Constitutional Petition No.D-546 of 2014, decided on 26th January, 2017.

Jurisdiction---

----Jurisdiction with consent---Scope---Petitioners obtained interim order by fraud and misrepresentation---Effect---Order in question was without jurisdiction and in violation of judgments of Supreme Court, therefore, same was recalled---High Court directed beneficiary of interim order to return benefits obtained by them by misrepresentation as on the face of it the order should not have been passed by High Court for want of jurisdiction---Even a consent order passed by court of law which had no jurisdiction to entertain the lis was void and nullity---When court had no jurisdiction, parties by consent could not confer jurisdiction on court---Constitutional petition was dismissed in circumstances.

Habib-ur-Rehman Unar and others v. Government of Sindh PLD 2004 Kar. 728; M. Muzaffar-ud-Din Industries Ltd. v. The Chief Settlement and Rehabilitation Commissioner Lahore and another 1968 SCMR 1136; Shamshad Ali Khan v. Commissioner, Lahore and others 1969 SCMR 122 and Messrs Momin Motors Company v. The Regional Transport Authority Dacca and others PLD 1962 SC 108 ref.

Chief Settlement Commissioner, Lahore v. Mohammad Fazil Khan and others PLD 1975 SC 331 and Nek Bibi v. Muhammad Tufail and others 1989 MLD 3990 rel.

Syed Fida Hussain Shah for Petitioners.

YLR 2017 KARACHI HIGH COURT SINDH 2401 #

2017 Y L R 2401

[Sindh]

Before Syed Muhammad Farooq Shah, J

MUHAMMAD ASIM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.304 of 2015 and Criminal Jail Appeal No.99 of 2016, decided on 6th October, 2016.

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

----S. 342---Power to examine accused---Available material was not put to accused during trial---In the present case, incriminating material was not put to accused during the course of trial at the time of recording his statement under S. 342, Cr.P.C.---Effect---If any incriminating piece of evidence like report under S. 173, Cr.P.C., or FIR, recovery memos, statement of prosecution witnesses and confessional statement if any were not put to accused in his statement under S.342, Cr.P.C. for his explanation, then the same could not be used against him for his conviction.

2010 SCMR 1009; Abdul Ghaffar v. The State 2011 MLD 239 and Shiral alias Sher Ali v. The State 1999 SCMR 697 rel.

(b) Criminal trial---

----Appreciation of evidence---Principle---When two interpretations of evidence were possible, one favouring the accused and the other favouring the prosecution, the one favourable to the accused was required to be taken into consideration.

Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 rel.

Salahuddin Khan Gandapur and Sabir Shah for Appellants.

Zahoor Shah, A.P.G. for the State.

Date of hearing: 22nd September, 2016.

JUGMENT

SYED MUHAMMAD FAROOQ SHAH, J.---By this common judgment captioned appeals arising from the same judgment are taken and decided together.

The appellants were convicted and sentenced for an offence under section 397/ 34, P.P.C. vide judgment dated 27.10.2015 to suffer RI for seven years each so also to pay fine of Rs.10,000/- by learned Additional Sessions Judge-II, Malir Karachi.
The story of prosecution, in nutshell, is that on 20.11.2014 at 1430 hours complainant PW Fahad Abdullah was intercepted by three persons and signaled to stop his motorcycle, one of them drawn his pistol and asked him to hand over his belongings; one empty handed accused drawn cash of Rs.1000/- from his front packet and other empty handed accused drawn his Q-Mobile E-18 of black color so also took key of his motorcycle and started running. In the meantime a police mobile and a white color car came there to whom he narrated the facts. The culprits were chased, who were running and they were apprehended. An unlicensed TT pistol loaded with three bullets was recovered from accused Iftikhar alias Takki; co-accused disclosed his name to be Zahid Shah and from his personal search snatched mobile phone was recovered; third accused disclosed his name as Muhammad Asif from whose possession two currency notes of Rs.500/- each were recovered. They were arrested under common Mashirnama. Subsequently, FIR No. 550/2014 under section 397/34, P.P.C. was registered at Police Station Shah Latif Town, Karachi. On completion of usual investigation they were charge sheeted under section 173, Cr.P.C. and after taking cognizance, the concerned magistrate forwarded the case to the Sessions Court for trial. Charge was framed by the trial court, to which the appellants pleaded not guilty and claimed trial. The prosecution, in order to prove its case examined PW-1 Fahad Abdullah, who being complainant produced FIR, common memo of arrest and recovery and separate memo of Wardat, as well. After recording evidence of two police officials, the prosecution closed its side; subsequently statements of accused persons were recorded under section 342, Cr.P.C. to which they denied the allegations and claimed themselves to be innocent.
Arguments heard. Record perused.
Mr. Salahuddin Khan Gandapur, Advocate representing the appellants argued that only star witness of the prosecution PW-1 Fahad Abdullah has not fully corroborated the story narrated in the FIR as well as the alleged recovery made from the appellants. He next submitted that as per evidence of complainant all three appellants participated in commission of snatching the mobile phone, cash amount of Rs.1000/- and they also took keys of his motorcycle. Counsel submits that memo of recovery contradicts the recovery of two currency notes of Rs.500/- from the accused Muhammad Asif as memo of recovery shows that one currency note of Rs.1000/- was recovered. It is next contended that section 397, P.P.C. implies the word "uses any deadly weapon" though admittedly alleged recovered weapon has not been used in commission of crime. Learned counsel says that admittedly it was a day time incident and a white car was also stopped and chased the culprits but no other independent person to corroborate the version of complainant has been examined, as the conviction of appellant rests entirely on the ocular testimony of complainant. He further argued that it is settled principle of law that sections 34 and 149, P.P.C. have no application to the case of offence under this section as plain reading of section 397, P.P.C. reveals that if at the time of committing robbery offender would use any deadly weapon, he would be punished for not less than seven years. Learned counsel contended that while recording statements of accused under section 342, Cr.P.C. all incriminating pieces of evidence available on the record are required to be put to the accused for the purpose of enabling the accused to explain any circumstance appearing in evidence against him which clearly demonstrate that not only the circumstances appearing in examination-in-chief are put to the accused but the circumstances appearing in cross-examination or re-examination are also required to be put to the accused, if they are against him as held by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Shah v. The State (2010 SCMR 1009). Learned counsel, lastly, pleads acquittal of appellants.
Conversely learned Assistant Prosecutor General, Sindh without controverting the arguments advanced by the learned counsel for appellants, supported the impugned judgment and stated that even the evidence of complainant without any animosity and illwill is sufficient to award conviction.
A perusal of record transpires that as per prosecution story three culprits had participated in the alleged crime of robbery, therefore, the case cannot fall under the dacoity. More so, in absence of applicability of sections 34 and 149, P.P.C. to the case of an offence under section 397, P.P.C., the trial court while framing the charge held liable all the culprits duly armed with firearm weapons though as per prosecution version two accused were empty handed and third accused Iftikhar was possessing the illicit weapon. The star witness of prosecution Fahad Abdullah who is the only private witness stated in his examination-in-chief that on 20.11.2011 he was riding and going on his motorcycle to meet with his friend and when he reached on double road in front of Sector 22-A, Shal Latif Town three persons stopped him on showing pistol, asked him to hand over his belongings. They took out mobile phone and Rs.1000/- and key of his motorcycle as well. In the meantime, a police mobile and a car of white color stopped near him to whom complainant narrated the facts and pointed towards the accused persons who were running; the accused were chased and apprehended by the police; a TT pistol from one accused Iftikhar; mobile phone from another accused Zahir Shah and two currency notes of Rs.500/- from the front pocket of shirt of third accused Muhammad Asif were recovered. Such memo was prepared at the place of incident, he produced the FIR and memo of arrest and recovery. The case property was desealed in court, in which the robbed articles were identified by the complainant. In his cross-examination, he stated that during personal search only robbed property was recovered from the accused persons. He had denied the false implication of accused persons.
PW-2 ASI Anwar Ali who apprehended the accused persons with robbed property, when the accused persons were running after committing 'wardat' stated that robbed property was recovered from the accused including illicit weapon. In his cross-examination this witness has stated that he do not remember the registration number of private car which was driven by him and that he does not remember from where he hired the said car. He has further stated that they left the complainant at the place of incident and followed the accused for about ½ kilometer. He apprehended the accused Iftikhar and rest of both the accused were apprehended collectively by rest of police party. He has further stated that some words were engraved on the recovered pistol but same is not mentioned in the Mashirnama, so also three stars engraved on the pistol have also not been mentioned in the Mashirnama of recovery. He stated that he took about 30 minutes in whole proceedings at the spot by calling the complainant at the spot of arrest. He further stated that Mashirnama was written by Munshi PC-Asghar Jamali on his dictation and accused Muhammad Aisf was searched by ASIP Roshan who was present in the mobile. He has also admitted that denomination numbers of notes were not mentioned in the Mashirnama, however, he has denied false implication of the accused in this case. The Investigating Officer ASIP Sohail was entrusted investigation as per examination-in-chief of PW-ASIP Anwar Ali, who stated that he did not examine any witness from the place of occurrence as same is abandoned area though flats were situated at 20-25 paces from the spot.
The points, which require consideration, are that as to whether the evidence in the case is sufficient to sustain the conviction of all the three accused under section 397/34, Cr.P.C. and whether the charge and statement of accused recorded by the trial court are defective or otherwise. It shall be advantageous to repro-duce section 397, P.P.C. herein below:-

"397. Robbery or dacoity, with attempt to cause death or grievous hurt. If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."

Trial commence from framing of charge under section 265-D, Cr.P.C. which reads that "if, after perusing the police report or, as the case may be, the complaint, and all other documents and statements filed by the prosecution, the Court is of opinion that there is ground for proceeding with the trial of the accused it shall frame in writing a charge against the accused."
Plain reading of aforementioned provision of law reflects that not only report under section 173, Cr.P.C. or FIR but also the documents showing commission of offence to be seen which includes memos, statements of PWs, confessional statement of accused, if any etc. as framing of charge means commencement of trial when the accused should be appraised about the allegations leveled against him. A charge under the law has to be framed on the basis of entire material placed before it by the prosecution. It appears that charge framed in the present case by the trial court does not show the gist of formal expression of prosecution case as story of prosecution shows that from three culprits only one was armed with deadly weapon, robbed the complainant but the reading of charge shows that all the culprits were armed with deadly weapon as no name of accused who was armed with weapon has specifically been mentioned; more particularly in a case punishable under section 397, P.P.C. applicability of sections 34 and 149, P.P.C. has been ruled out. Likewise, statements of accused person under section 342, Cr.P.C. shows that identical six questions were put to the accused persons wherein no specific role of accused armed with weapon has been described. Identical questions were put to all accused under section 342, Cr.P.C. statement, reproduce as follows:--

"Q.1 It is alleged that on 20.11.2014 at 1330 hours, at double road Sector 22-A Shah Latif Town, you being duly armed with T.T. Pistols, committed robbery cash of Rs.1000/-, one mobile phone QE-18 and key of motorcycle from the pocket of complainant. What you have to say?

Ans: No Sir, it is false.

Q.2. It is evident that during robbery you have robbed cash of Rs.1000/- and one mobile phone QE-18 from the complainant of this case. What you have to say.

Ans: No Sir, it is foisted by police due to sudden quarrel between me and complainant and at Qazafi Town. But police with ulterior motive and at the pressure of complainant lodged FIR at Shah Latif Town.

Q.3. Why the P.Ws have deposed against you.

Ans: Sir they deposed falsely.

Q.4. Do you want to examine yourself on oath under section 340(2), Cr.P.C.?

Ans: No, Sir.

Q.5. Do you want to examine any witness in your defense.

Ans: No, Sir.

Q. 6. Have you to say anything else.

YLR 2017 KARACHI HIGH COURT SINDH 2410 #

2017 Y L R 2410

[Sindh (Larkana Bench)]

Before Salahuddin Panhwar, J

ABDUL GHAFOOR---Appellant

Versus

The STATE---Respondent

Crl. Appeals Nos.S-80 and S-89 of 2010, decided on 8th January, 2016.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 337-F(iii), 148 & 149---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, Ghayr-jaifah Mutalahimah and rioting armed with deadly weapons---Appreciation of evidence---Delay in registration of FIR---Withholding of evidence---Presumption---Double murder---Delay in reporting matter at first available opportunity; refusal of witnesses (injured) to record their statements to investigating officer and considerable delay in recording FIR were sufficient to widen the rope to involve accused with whom enmity was proved as stated by the injured prosecution witness---No active role was assigned to accused except that of instigation---High Court declined to uphold the conviction when allegation of instigation was not backed/supported by any corroborative pieces of evidence---Even cause of dispute i.e. expelling buffaloes from wheat crop, was not of such consideration to have motivated accused to instigate others for killing---Complainant party did not claim arrival of accused party to be armed with any weapon or in a manner to have given rise to any apprehension to accused towards his life etc.---Formation of unlawful assembly was not with the only object to commit murder---Section 149, P.P.C., therefore, not applicable to the present case---Convictions and sentences awarded to all accused persons by Trial Court were set aside and they were acquitted of the charge---Appeal was allowed in circumstances.

Amin Ai v. State 2011 SCMR 323 ref.

Asif Ali Abdul Razak Soomro for Appellant (in Cr. Appeal No.S-80 of 2010).

Khadim Hussain Khoohoro, A.P.G. for the State (in Cr. Appeal No.S-80 of 2010).

Zubair Ahmed Rajput for Appellant (in Cr. Appeal No.S-89 of 2010).

Khadim Hussain Khoohoro, P.P.G. for the State (in Cr. Appeal No.S-89 of 2010).

YLR 2017 KARACHI HIGH COURT SINDH 2442 #

2017 Y L R 2442

[Sindh]

Before Mohammad Shafi Siddiqui, J

SHAHEEN AIR INTERNATIONAL LIMITED (SAIL) and another---Plaintiffs

Versus

CIVIL AVIATION AUTHORITY (CAA) through Director-General and another---Defendants

Suit No.1691 of 2016, decided on 25th November, 2016.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1 & 2---General Clauses Act (X of 1897), S. 24-A---Constitution of Pakistan, Arts. 18 & 25---Suit for declaration and injunction---Interim injunction, grant of---License, renewal of---Right to trade and business---Discrimination---Plaintiffs were licensed by Civil Aviation Authority to operate commercial airline for passengers and cargo---Grievance of plaintiffs was that authorities declined to renew the license on the plea that some of the Directors and Shareholders of plaintiff company required security clearance---Validity---Denial of security clearance was not as required under the law---Such was not only devoid of serious reasoning of security/ intelligence agencies but also hit by S.24-A of General Clauses Act, 1897---In absence of detailed reasoning as to the adverse observation, it would not be possible for plaintiffs to comply with such anonymous terms---Change of directorship or Chief Executive Officer, was not the solution as it would amount to denying a right as guaranteed to each citizen of Pakistan in terms of Arts. 18 & 25 of the Constitution---Letter of government advising plaintiff company through Civil Aviation Authority that they could either get security clearance from the Directorate of Inter Service Intelligence or concerned Director/Chief Executive Officer should be considered to be changed was of no consequence at all---Denial to renew a license to plaintiff company on account of dual nationality of Directors amounted to curtailing a right guaranteed under Arts. 18 & 25 of the Constitution unless valid reasons were provided---High Court directed plaintiffs to respond to queries and provide all information and documents as and when required by the concerned authority/security agencies---High Court suspended the orders passed by the authorities---Interim injunction was granted in circumstances.

Muneer A. Malik and Ch. Atif Rafiq for Plaintiffs.

Khurram Rashid for Defendant No.1.

None for Defendant No.2.

YLR 2017 KARACHI HIGH COURT SINDH 2451 #

2017 Y L R 2451

[Sindh]

Before Naimatullah Phulpoto and Mohammed Karim Khan Agha, JJ

Syed SALAHUDDIN---Petitioner

Versus

FEDERATION OF PAKISTAN through Ministry of Law and another---Respondents

Constitution Petition No.D-3863 of 2016, decided on 14th November, 2016.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(b)---Bail, grant of---Delay in conclusion of trial---Hardship case---Second direction---Petitioner was arrested by NAB and he sought bail on the ground of delay in conclusion of trial despite lapse of direction issued to Trial Court by High Court---Validity---Accused had been in jail for about 19 months (once adjournments by petitioner were considered) and loss caused was of a high amount---Only one prosecution witness was left to record his statement, and there was only one accused (i.e. petitioner) to cross examine said witness---Petitioner did not meet requirements of a hardship case as the reference could be decided expeditiously by Trial Court through a further direction from High Court to such effect---Petition was dismissed in circumstances.

Muhammad Saeed Mehdi v. The State and 2 others 2002 SCMR 282; Aga Jehanzeb v. NAB and others 2005 SCMR 1666; Muhammad Jameel Rahi v. D.G. NAB and others 2012 SCMR 552; Himesh Khan v. National Accountability Bureau (NAB) Lahore and others 2015 SCMR 1092; Rafiq Haji Usman v. Chairman, NAB and others 2015 SCMR 1575 and Muhammad Nadeem Anwar and another v. NAB and others PLD 2008 SC 645 ref.

Atta Abbas Zaidi v. Chairman NAB and others C.P. No.D-1865 of 2016 and Rehmatullah v. State 2011 SCMR 1332 rel.

Salahuddin Ahmed for Petitioner.

Noor Muhammad Dayo, Special Prosecutor, NAB along with Irfan Ali I.O. NAB and Ashfaq Rafiq Janjua for Respondents.

YLR 2017 KARACHI HIGH COURT SINDH 2459 #

2017 Y L R 2459

[Sindh]

Before Rasheed Ahmed Soomro, J

MUSHTAQ A. PATEL---Appellant

Versus

MUHAMMAD ISLAM through Legal heirs and others---Respondents

IInd Appeal No.70 of 2014, decided on 3rd March, 2017.

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

----Ss. 12 & 27(b)---Suit for specific performance---Payment of earnest money---Subsequent transferee entering into agreement with vendor---Knowledge of earlier agreement---Element of good faith---Scope--- Plaintiff/respondent contended that Appellant/subsequent transferee had knowledge of agreement between plaintiff and defendant so his entering into agreement with vendor/defendant was not in good faith---Appellant/subsequent transferee contended that first Appellate Court had erroneously reversed the decree and judgment of Trial Court---Validity---Plaintiff of the suit had repeatedly sent notices and letters to defendant expressing his readiness to pay the balance amount within stipulated time in the agreement and requested the vendor to perform his part of contract by delivering possession of the suit property along with its original title document as per terms of contract---Evidence adduced by the plaintiff in that behalf appeared to be confidence inspiring and corroborated by the documentary evidence which had not been refuted by the other side---Evidence showed that the agreement to sell and purchase of the property in question was signed by the parties and the cash amounting to Rs. 1,00,000/- only handed over to the vendor being part payment of total sale consideration, in lieu of receipt---Payment of Rs. 4,00,000/- was offered to the vendor as per terms of agreement and request of plaintiff for performing his part of contract had been made part of record of the Trial Court during the course of recording deposition---After purchase of property in question by the appellant/subsequent transferee could not be sanctified for the reason that the same was subject matter of an intact agreement of vendor to sell it to the plaintiff for total consideration of Rs.5,00,000/- out of which the vendor had received Rs.1,00,000/- as earnest money from vendee/plaintiff---Having conscious knowledge of the said agreement, being resident of the same vicinity and taking into consideration the dictates of fair-play, the appellant should have refrained from entering into agreement with the vendor for purchase of the property and that too in exchange of almost same amount of consideration that was previously agreed between plaintiff and vendor conjointly---If the appellant had no knowledge of the agreement reached between the parties, even then, instantly after acquiring such knowledge the appellant should have annulled the transaction---Appellant, during course of trial had not adduced evidence for negating the factum of having conscious knowledge about agreement between the vendor and the vendee to sell/purchase the property in question---Appellant had thus failed to discharge the onus and remained unsuccessful to prove his version, which he ought to have squared during the course of trial to show that the agreement by him to purchase the property in question was out-come of good faith---Findings recorded by the first Appellate Court, therefore, did not call for interference by the High Court---Second appeal was dismissed accordingly.

Muhammad Bashir and others v. Iftikhar and others PLD 2004 SC 465 ref.

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

----S. 100---Specific Relief Act (I of 1877), Ss. 12 & 27(b)---Suit for specific performance---Second appeal---Scope---Second appeal had limited scope and would lie only on the conditions and grounds enunciated under S. 100, C.P.C. and not otherwise---Second appeal would be competent only when findings of the court below were based on no evidence, or had been returned in violation of any law, or some important evidence had not been considered by the Trial or first Appellate Court---Where the conditions envisaged by S. 100 C.P.C. were not attracted second appeal would not be competent---Findings arrived at by first Appellate Court were in line with evidence on record, no material illegality whatsoever in the judgment of the first Appellate Court had been pointed out during the course of argument---Second appeal was dismissed.

M. Khalid for Appellant.

Mahar Khan for Respondent No.1.

Respondent No.2 (declared exparte).

YLR 2017 KARACHI HIGH COURT SINDH 2468 #

2017 Y L R 2468

[Sindh]

Before Muhammad Iqbal Kalhoro, J

SHAMS---Appellant

Versus

ZULFIQAR HUSSAIN and another---Respondents

F.R.A. No.22 of 2014, decided on 26th May, 2016.

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

----S. 17(2)(i)---Eviction of tenant---Default in payment of rent---Scope---Tenant did not pay rent of the shop to the landlord after he became its owner through an auction---Tenant committed willful default---Consequently appeal of tenant was dismissed along with other applications.

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

----S. 17(2)(ii)(a)---Subletting by tenant---Effect---Record showed that two persons other than the tenant were in occupation of the shop and the tenant himself was an employee somewhere else---Tenant had parted with the possession of the shop by subletting same---Appeal of tenant was dismissed along with other applications.

----S. 17(2)(vi)---Eviction for tenant---Plan for demolition of building by landlord---Tenant had not been able to prove that process of demolition was aimed at only to evict him, or for his eviction any undue or illegal course had been adopted by the landlord---Appeal of tenant was dismissed along with other applications.

Ubed ur Rehman Khan for Appellant.

Iftikhar Javed Qazi for Respondents.

YLR 2017 KARACHI HIGH COURT SINDH 2504 #

2017 Y L R 2504

[Sindh]

Before Sajjad Ali Shah, C.J. and Syed Saeeduddin Nasir, J

CHAIRMAN, MARI GAS CO. LTD. and 2 others---Appellants

Versus

ABDUL REHMAN---Respondent

High Court Appeal No.148 of 2014, decided on 22nd March, 2016.

Suit for damages---

----Compensation--- Withdrawal of medical facilities by the company after retirement of employee---Damages for mental torture and harassment, claim for---General damages-Determination of---Procedure---When damages claimed were of general nature then exercise of jurisdiction in determining and justifying the quantum in awarding the compensation would vest in the Trial Court---Quantum of damages to be awarded by the court was to be determined by reasonable assessment and guess work of a man of ordinary prudence subject to keeping in view the evidence produced by the parties and surrounding circumstances thereof---Suit for damages could only be decreed when averred in the plaint on each score separately and proved by evidence on each point---General, vague and scanty evidence was not to be relied upon---Damages suffered and quantity of amount claimed under each head had to be proved by cogent evidence--- Trial Court had not taken into consideration each and every aspect of the evidence of the plaintiff while determining the quantum of damages---Claim in the nature of general damages had not been substantiated by cogent evidence led by the plaintiff---Impugned judgment was modified as to reduce the amount of damages to be paid to the plaintiff to an amount of Rs. 20,000/- as plaintiff had failed to prove actual loss caused on account of the action in question---Appeal was dismissed in circumstances.

Sufi Muhammad Ishaque v. The Metropolitan Corporation Lahore PLD 1996 SC 737 and Malik Gul Muhammad Awan v. Federation of Pakistan 2013 SCMR 507 ref.

Azizullah v. Javed Bajwa 2005 SCMR 1950; Dr. Prof. Haroon Ahmed v. British Airways PLD 2004 Kar. 439; Sufi Muhammad Ishaque v. The Metropolitan Corporation Lahore PLD 1996 SC 737 and M. Younas and Co. v. Hajiani Mariam Bai and others PLD 1963 W.P. Karachi 791 rel.

Khaleeq Ahmed for Appellants.

Rauf Ahmed Butt for Respondent.

YLR 2017 KARACHI HIGH COURT SINDH 2516 #

2017 Y L R 2516

[Sindh]

Before Naimatullah Phulpoto and Aftab Ahmed Gorar, JJ

The STATE through Chairman National Accountability Bureau---Appellant

Versus

MANZOOR AHMED BHUTTO---Respondent

Criminal Accountability Acquittal Appeal No.51 of 2002, decided on 27th January, 2016.

National Accountability Ordinance (X VIII of 1999)---

----Ss. 9(a) (iii) & 9(a)(vi)---Criminal Procedure Code (V of 1898), S.417(2-A)--Corruption and corrupt practices---Appeal against acquittal---Appreciation of evidence---Special Prosecutor NAB, could not point out that judgment of acquittal suffered from infirmities---Findings of acquittal, could only be upset, if same were found perverse, arbitrary, foolish or based on misreading or non-appraisal of evidence---In the present case, findings of the Trial Court, were based upon sound reasons--- Trial Court had examined the evidence deeply; and had assigned sound reasons, while recording acquittal order--Trial Court had rightly mentioned in the judgment that prosecution witnesses were not able to show that any tampering of individual meters or malpractice in exchange, was detected through any surprise visits/raid/inspection or any other such kind of source during the period, accused was its officiating incharge---Prosecution had failed to prove its case against accused---Impugned judgment passed by the Trial Court, was based upon valid and sound reasons; and was entirely in consonance with the law---Neither there was misreading nor non-reading of material evidence or misconstruction of facts and law---Appeal against acquittal order, being without merits was dismissed, in circumstances.

State v. Government Sindh through Advocate General Sindh Karachi v. Sobharo 1993 SCMR 585 ref.

Muhammad Altaf, ADPG, NAB for Appellant.

Hidayatullah Abbasi and Jamil Ahmed Rajpur for Respondent.

Tariq Pervaiz v. The State 1995 SCMR 1345; Riaz Masih alias Mitho v. The State 1995 SCMR 1730 and Muhammad Saeed alias Rashid alias Sheda and another v. The State 2008 PCr.LJ 1752 rel.

Raja Ghaneem Aabir Khan for Appellant.

Ch. Qaiser Mushtaq, ADPP and Ali Akbar Shah, S.I. for the State.

Ch. Muhammad Yaqoob for the Complainant.

YLR 2017 LAHORE HIGH COURT LAHORE 48 #

2017 Y L R 48

[Lahore (Multan Bench)]

Before Muhammad Tariq Abbasi and Qazi Muhammad Amin Ahmed, JJ

SAMAR ABBAS---Petitioner

Versus

The STATE and others---Respondents

Criminal Appeals Nos.621, 630, 901 of 2010, 896 of 2011, Criminal Revision No.332 and Murder Reference No.159 of 2010 heard on 10th December, 2014.

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

----S.302(b)---Qatl-e-amd---Circumstantial evidence---Scope---All the circumstances should be connected in such a manner that those should make a continuous chain; one end of which should touch the dead body; whereas the other around neck of accused---Missing of even a single string would break the chain and fatal for the prosecution.

The State v. Manzoor Ahmad PLD 1966 SC 664; Asadullah and another v. The State and another 1999 SCMR 1034; Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Sarfraz Khan v. The State and 2 others 1996 SCMR 188; Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 and Ibrahim and others v. The State 2009 SCMR 407 ref.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Nobody was nominated in the case by the complainant---Deceased, when injured, had stated that some unknown persons had caused injuries to him---Complainant made a supplementary statement, whereby accused persons were named to be assailant---Alleged extra-judicial confession, which was joint in nature and made in one sitting, had no value in the eye of law---Involvement of accused persons on the basis of extra-judicial confession, which otherwise had no value, was also against mendate of law, being statement of one co-accused against the other---Proceedings of test identification parade a long after nomination of accused persons, were inconsequential, having no legal value---Prosecution failed to establish the case against accused persons---Charge against accused persons was doubtful, and the accused persons were entitled to the benefit of doubt, not as a matter of grace, but as of right---Conviction, could only be based upon unimpeachable evidence and certainty of guilt, and any doubt, arising in the prosecution case, must be resolved in favour of accused---Impugned judgment was set aside and all accused persons were acquitted of the charge, while extending them the benefit of doubt and they were released, in circumstances.

Tahir Javed v. The State 2009 SCMR 166; Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231; Muhammad Khan and another v. The State 1999 SCMR 1220; Ghulam Akbar and another v. The State 2008 SCMR 1064; Muhammad Akram v. The State 2009 SCMR 230 and Ayub Masih v. The State PLD 2002 SC 1048 ref.

Syed Badar Raza Gillani, Haji Muhammad Tariq Aziz Khokhar and Wajid Ali Bhatti for Appellants.

Bashir Ahmad Khan Buzdar and Waseem Sarwar for the Complainant (in Crl. Revision No.332 of 2010).

Malik Riaz Ahmad Saghla, D.P.G. for the State.

YLR 2017 LAHORE HIGH COURT LAHORE 74 #

2017 Y L R 74

[Lahore]

Before Abid Aziz Sheikh, J

CRESCENT STEEL AND ALLIED PRODUCTS LTD.---Petitioner

Versus

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

W.P. No.27654 C.M. Nos. 7094 and 7095 of 2015, heard on 26th November, 2015.

(a) Tender---

----Foreign and local bidders----Clause of tender that after acceptance of bids if taxes or duties on goods to be supplied were increased then respondent-company would not be liable to pay the increased amount so charged from the supplier---Terms and conditions of tender---Free on board (FOB) contract---FOR terms---Financial proposal submitted by the petitioner-bidder being conditional---Refusal of petitioner-bidder to withdraw said condition---Non-evaluation of bid submitted by the petitioner-bidder---Scope---Contention of petitioner-bidder was that clause of tender with regard to increase in taxes or duties was applicable only on the local manufactures which was discriminatory---Validity---Impugned clause could not be made applicable to the foreign bidders who were liable to pay any duty after delivery in FOB contracts---Respondent-company had not acted malafidely or in unfair and non-transparent manner in introducing clause to local manufacturers only---Duties and taxes, in case of foreign bidders, were to be paid by those bidders in their own country of manufacture---Respondent-company would not be burdened in case costs, duties and taxes in their own country were increased during supply of goods but same had to be paid by foreign supplier itself---Respondent-company had to receive the finished goods at the fixed rate on FOB basis from foreign supplier and on FOR basis from local supplier---Impugned clause was also applicable to foreign bidders---No undue benefit had been given to the foreign bidders in circumstances---Petitioner-bidder was aware with regard to FOR terms of bid while submitting its financial as well as technical bids---Petitioner-bidder's technical proposal was accepted in absence of any reservation on terms and conditions of bid documents---No mala fide and illegality on the part of respondent-company had been pointed out by the petitioner-bidder---Petitioner-bidder had been participating in many other steel line pipes for the last decades where similar clause was inserted---Conduct of petitioner-bidder had become self contradictory---Impugned clause was neither discriminatory nor applicable to FOB contracts of foreign bidders---Constitutional petition was dismissed in circumstances.

Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212 and Dr. Akhtar Hassan Khan v. Federation of Pakistan and others 2012 SCMR 455 ref.

Dr. Shahnaz Wajid v. Federation of Pakistan and others 2011 SCMR 1737; Alleged Corruption in Rental Power Plants and others 2012 SCMR 773; Messrs Toyota Garden Motors (Pvt.) Ltd., v. Government of Punjab and others PLD 2012 Lah. 503; Crescent Steel and Allied Product Limited v. Sui Southern Gas Co. Limited 2015 CLD 745; 2015 CLD 72; Messrs Ramna Pipe and General Mills (Pvt.) Ltd., v. Messrs Sui Northern Gas Pipe Lines (Pvt.) Ltd. and others 2004 SCMR 1274; Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport Karachi and others 1998 SCMR 2268; Raja Mujahid Muzaffar and others v. Federation of Pakistan and others 2012 SCMR 1651; Suo Motu Case Action regarding huge loss to public exchequer by ignoring lowest bid of Fauji Foundation and Multinational Energy from vitol by awarding LNG Contract PLD 2010 SC 731 distinguished.

Suo Motu Case No.13 of 2009 PLD 2011 SC 619; Air India Ltd. v. Cocbin International Airport and others AIR 2000 SC 801; Tata Cellular v. Union of India AIR 1996 SC 11 and Sterling Computers Ltd. v. Messrs M. & N. Publications Ltd. AIR 1996 SC 51 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Contract by public companies---Contract concluded by public companies had to be just, fair, transparent, reasonable, free of any taint of mala fide and discrimination---Such aspects would remain open for judicial review and in case of deviation said contract could be corrected through orders under Art. 199 of the Constitution.

----Art.199---Constitutional Jurisdiction of High Court---Scope---Contract of public importance by State functionaries---High Court, in exercise of constitutional jurisdiction, with regard to contracts of public importance by State functionaries could examine infirmities and arbitrariness in decision making process to ensure fairness and transparency in the same and could not examine details of terms and conditions of contracts and substitute its decision to the decision makers.

(d) Estoppel---

----No estoppel could operate against law.

Rashid Anwar assisted by Raza Qureshi for Petitioners.

Barrister Mian Bilal Ahmed, Barrister Qadir Baksh, Rashid Mehmood Gill, Mian Shaoor Ahmed, for Respondent No.2/SNGPL, Amijid Ikram Mian, Deputy Chief (Law), Asim Ali Mir, Deputy Executive Officer (Law) and Muhammad Ali Chughtai, Executive Officer (Law) for Respondents.

YLR 2017 LAHORE HIGH COURT LAHORE 102 #

2017 Y L R 102

[Lahore (Rawalpindi Bench)]

Before Muhammad Tariq Abbasi, J

Mst. SABIRA BIBI and others---Petitioners

Versus

HIKMAT KHAN and others---Respondents

Civil Revision No.570 of 2012, heard on 20th June, 2014.

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

----S. 14---Civil Procedure Code (V of 1908), S.24 & O.VII, R.10---Partition suit---Exclusion of time of proceedings before wrong forum---Principle---Trial Court decreed suit---Defendant filed appeal within 90 days before High Court on the basis of value of suit property determined by the local commission---High Court upholding the objections of plaintiff to maintainability of the appeal, sent the appeal to District Judge for adjudication on merits---District Judge dismissed appeal on the ground of limitation---Validity---Limitation for filing appeal before High Court was 90 days whereas appeal could be filed before District Judge within 30 days---Under S.14 of the Limitation Act, 1908, when a party failed to justify the filing of plaint/appeal before wrong forum, time of proceedings before such forum would not be excluded from the period of limitation---Under S.24, C.P.C. where a matter was transferred, such matter would proceed from the point at which it was transferred, unless otherwise directed---In the present case, appeal was not returned by High Court to defendants for its presentation before the proper forum, rather same was sent/remitted/ transferred to the District Court---Appeal was filed within time before High Court, so District Court was obliged to proceed with the appeal from the time/point the same was sent to the District Court---Even if defendants had moved application for condonation of delay appellate court should have appreciated the legal proposition that appeal before High Court had been filed within time and the same had not become time-barred on transfer by High Court---Revision was accepted.

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

----S. 24---Transfer of case---Limitation---Under S.24, C.P.C. when a matter was transferred, such matter would proceed from the point at which it was transferred, unless otherwise directed.

Sheikh Zameer Hussain for Petitioner.

Rafaqat Hussain Shah for Respondents Nos. 1 and 2.

Raja Muhammad Kamran Respondents Nos. 3 to 8.

YLR 2017 LAHORE HIGH COURT LAHORE 118 #

2017 Y L R 118

[Lahore]

Before Sardar Muhammad Shamim Khan and Muhammad Farrukh Irfan Khan, JJ

Mst. SAJIDA BIBI---Appellant

Versus

MUHAMMAD ASHRAF and 2 others---Respondents

Cr. A. No.2687 of 2010, heard on 15th October, 2015.

Penal Code (XLV of 1860)---

----Ss. 302, 449, 148 & 149----Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-i-amd; house trespassing in order to commit offence punishable with death; rioting armed with deadly weapon; common object---Appeal against acquittal---Appraisal of evidence---One of the accused was not alleged to have caused any specific injury to the deceased, and nothing had been recovered from his possession and no evidence was available on record to connect him with commission of the offence---Other accused was alleged to have inflicted two firearm injuries on the person of the deceased, one on his right leg and the other on his heel of left foot; but during postmortem examination, no injury on the heel of left foot was observed, and the other injury was although observed to have been caused but the same was on non-vital part of the body of the deceased and hence did not contribute to his death, which had falsified the ocular account furnished by the prosecution to the extent of said accused---Complainant changed her stance as to nature of weapon allegedly used by said accused, who was alleged to have caused the injuries which had resulted in death of the deceased---Neither the rifle nor any empty thereof had been secured by the police from the place of occurrence, which made that improbable that said accused had inflicted said injuries with the rifle---Complainant had alleged electric bulb placed in the courtyard, but no such bulb had been taken into possession from the place of occurrence---Prosecution witnesses had made improvements in their statement before the Trial Court---Prosecution witnesses had alleged that accused made firing on the deceased when they were standing at the roof top of adjacent house; therefore, trajectory of the bullet should have been angular moving downwards and thus the direction of the injuries on the person of the deceased should have been from upward to downwards; however, postmortem report revealed that the deceased had received straight firearm injuries---One of the eye-witnesses had been neither cited as prosecution witness nor had he been arrayed as accused, which cast doubt on veracity of prosecution case---Non-production of said eye-witness also led to the conclusion that the alleged occurrence had not taken place in the manner as alleged by the prosecution---One of the eye-witnesses had been appearing as prosecution witness in a number of cases in which the accused were facing trial; said witness could be inferred to have been inimical towards the accused and his evidence could not safely be relied upon in the case, which carried capital punishment---High Court, maintained impugned order of acquittal---Appeal was dismissed in circumstances.

Naveed Shaikh for Appellant.

Muhammad Sarwar Sindhu, Additional Prosecutor General, Punjab for Respondents.

YLR 2017 LAHORE HIGH COURT LAHORE 134 #

2017 Y L R 134

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Mazhar Iqbal Sidhu, JJ

FAIZ RASUL alias FAIZI---Petitioner

Versus

PROVINCE OF PUNJAB through Secretary and another---Respondents

Writ Petition No.1461 of 2011, decided on 2nd June, 2015.

Penal Code (XLV of 1860)---

----Ss. 302 & 34---Anti Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898), S.345---Qatl-i-amd, common intention, act of terrorism---Accused, a juvenile---Death sentence---Compromise between parties---Remission of sentence---Scope---Compromise between accused and legal heirs of the deceased---Parties entered into a genuine compromise agreement before the Trial Court---Accused being juvenile was entitled to remissions granted by virtue of Presidential Order, dated 13.12.2001---Compromise between parties was relevant as it would imprint beneficial effects in relations between the parties and promote peace, tranquility and harmony---High Court observed that it would be justified if death sentence inflicted upon petitioner/ accused was to be converted into life imprisonment with all sentences to run concurrently and benefit of S.382-B, Cr.P.C. was also extended to accused---Constitutional petition was allowed accordingly.

Muhammad Bashir v. The State 1985 SCMR 81; Lal Din alias Lalu v. The State 1987 SCMR 855; Piran Ditta alias Peero and others v. The State 1988 SCMR 415; Atta Muhammad v. Ghulam Muhammad 1988 SCMR 1592 and Shakeel and 5 others v. The State PLD 2010 SC 47 rel.

Arshad Nazeer Mirza for Petitioner.

YLR 2017 LAHORE HIGH COURT LAHORE 156 #

2017 Y L R 156

[Lahore]

Before Mazhar Iqbal Sidhu and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD SAJJAD alias SHEHZAD---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos.890 and 1080 of 2010, heard on 3rd June, 2015.

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

----Ss. 316, 353 & 186---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-i-Shibh-i-amd, assault and criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Incident was daylight occurrence, and large number of Police Officials, armed with most sophisticated weapons had conducted raid, but accused who allegedly was empty handed, made good his escape from the place of occurrence, in presence of so many Police Officials---Such conduct of Police Officials, was unnatural---Medical evidence had contradicted the prosecution version brought forth in the crime report---Co-accused, who were caught red handed; and crime weapons were also recovered from them, were extended the premium of innocence by the Trial Court without any corroborative piece of evidence---Trial Court convicted the accused from whom nothing was recovered during the course of investigation---Conviction recorded by the Trial Court, was on the basis of said conjectures and surmises to the extent of said accused---Merely on the basis of suspicion innocent person must not be convicted and punished---Prosecution case was full of material contradictions/ discrepancies---Trial Court was not justified in convicting the accused---Sentence recorded by the Trial Court, was against all canons of law for the dispensation of criminal justice---Conviction and sentence recorded by the Trial Court against accused, were set aside; accused was acquitted of the charge, and was ordered to be released, in circumstances.

Muhammad Sarfraz Khan v. The Crown PLD 1953 FC 317; Siraj v. The State 1984 SCMR 1238; Zafar Hayat v. The State 1995 SCMR 896; Mst. Dur Naz v. Yousaf and another 2005 SCMR 1906 and Idris Ali and 7 others v. The State PLD 1971 Dacca 254 ref.

(b) Criminal trial---

----Benefit of doubt---Every doubt, was to be extended in favour of accused---Court, could err in letting off hundred guilty, but should not convict one innocent person.

Muhammad Akram v. The State 2009 SCMR 230 ref.

Syed Nasir Ali Shah for Appellant.

Tariq Javed, District Public Prosecutor for the State.

Faryad Ali Chaudhry, for the Complainant (in Crl. Appeal No. 890 of 2010) and for Appellant (in Crl. Appeal No.1080 of 2010).

YLR 2017 LAHORE HIGH COURT LAHORE 182 #

2017 Y L R 182

[Lahore]

Before Shahid Waheed, J

PROVINCE OF PUNJAB through District Co-ordination Officer, Gujrat and others---Petitioners

Versus

Malik GHULAM SARWAR AWAN and others---Respondents

W.P. No.765 of 2011, heard on 19th November, 2015.

Specific Relief Act (I of 1877)---

----S. 54---Civil Procedure Code (V of 1908), O. XXI, R. 32 & O. XXXIX, R.2---Suit for permanent injunction---Disobeying of decree---Enforcement, procedure of---Suit filed by respondents (plaintiffs) was disposed of on the basis of statement made by petitioners (defendants)---Later on, respondents (plaintiffs) filed application under O. XXI, R. 32, C.P.C., to initiate appropriate proceedings against petitioners (defendants) for non-compliance of the decree---Trial Court framed issues and during recording of evidence directed petitioners (defendants) to issue a cheque in favour of respondents (plaintiffs) but petitioners (defendants) did not comply with the order resultantly proceedings under O. XXXIX, R. 2, C.P.C., were initiated by Trial Court---Order passed by Trial Court was maintained by lower appellate court---Validity---Divergent stances of parties led Trial Court to frame issues---Trial Court without returning findings regarding issues framed by it could neither direct petitioners (defendants) to pay any amount to respondents (plaintiffs) nor could initiate any proceedings under O.XXXIX, R. 2, C.P.C., for recovery of any amount---Trial Court while passing orders acted in exercise of its jurisdiction illegally and with material irregularity, which fact was not appreciated by lower appellate court and it fell in error while maintaining the order passed by Trial Court---High Court set aside order passed by both the courts below as the same were passed without lawful authority and of no legal effect---High Court directed Trial Court to decide application of respondents (plaintiffs) under O. XXI, R. 32, C.P.C., after recording complete evidence and in accordance with law---Constitutional petition was allowed in circumstances.

Muhammad Arif Raja, Addl. A.G. for Petitioners.

Malik Amjad Hussain, Mehdi Khan Chohan and Muhammad Mehmood Ch. for Respondents Nos. 1 and 2.

YLR 2017 LAHORE HIGH COURT LAHORE 204 #

2017 Y L R 204

[Lahore]

Before Shahid Hameed Dar, J

ALLAH YAR and 2 others---Petitioners

Versus

The STATE and another---Respondents

Crl. Misc. No.2712-B of 2014, decided on 12th March, 2014.

Criminal Procedure Code (V of 1898)---

----S. 498---Bail before arrest, cancellation of---Scope---Failure to furnish bail bonds and surety---Leniency shown by court in not cancelling pre-arrest bail---Uneducated accused lacking understanding of condition of bail---Accused persons were accused of abducting the alleged victim, who thereafter was allegedly subjected to rape by co-accused persons---Sessions Judge allowed pre-arrest bail to accused persons with the condition that they should furnish fresh bail bonds in the sum of Rs. 50,000 each with one surety in the like amount within seven days, failing which their bail petition would be deemed to have been dismissed---Accused persons failed to satisfy the said condition and consequently Session Judge cancelled their pre-arrest bail---Validity---Accused persons should have shown their sincerity and bona fide to the condition attached with their bail order, however if they had not done so, the Sessions Judge ought to have shown leniency and grace to afford them some more time to submit the requisite bail bonds---Bail order of accused persons was recalled seven months after being made by the Sessions Judge, and during such time, an application to cancel their bail was pending, however during pendency of said application they were not once directed to submit their bail bonds and surety---Valid bail order obtained by accused persons was cancelled for a technical reason, only due to their folly and probably because of their lack of understanding, as they did not look educated---Co-accused persons had already been granted post-arrest bail on merits---Bail facility of accused persons had been cancelled/withdrawn by Sessions Judge, independent of the merits of the case---Bail cancellation order of accused persons was set-aside in circumstances and resultantly bail granting order passed by Sessions Judge was restored subject to furnishing the requisite bail bonds as directed by the Sessions Judge, within three weeks, failing which the law would take its own course.

Rai Wali Muhammad Khan Kharal for Petitioner.

Abdul Rauf Wattoo, Deputy Prosecutor General Punjab for the State with Amjad SI.

YLR 2017 LAHORE HIGH COURT LAHORE 224 #

2017 Y L R 224

[Lahore]

Before Shahid Waheed, J

MUHAMMAD ARIF---Petitioner

Versus

Haji WAHEED-UL-HAQ---Respondent

C.R. No.3765 of 2014, decided on 22nd December, 2014.

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

----S. 42---Suit for declaration---Benami transaction---Essential elements---Motive for benami transaction---Contention of plaintiff was that suit property was got transferred in the name of defendant as he was government servant---Suit was dismissed concurrently--- Validity---Essential elements to establish benami transaction were agreement either express or implied between the ostensible owner and the purchaser for the purchase of property in the name of ostensible owner for the benefit of the person who had to make payment of the consideration and transaction actually entered between the real purchaser and seller to which ostensible owner was not party---Plaintiff could not prove agreement with regard to transfer of the suit property in his name by the defendant from the evidence available on record---No specific motive for transfer of suit land in favour of defendant was on record---If motive for benami transaction was to make assets through money earned illegally, the same could not be valid---Discretionary and equitable jurisdiction under S. 42 of Specific Relief Act, 1877 could not be exercised in favour of plaintiff to allow him to reap benefit of his illegal gains---Plaintiff was in government service at the time of transaction of suit property and could not get the suit property transferred in his own name---Plaintiff having not proved the nature of transaction as benami suit was rightly dismissed---Plaintiff who could not explain the source of his income, could not purchase suit property---No illegality or procedural irregularity was pointed out in the judgments and decrees passed by the courts below---Revision was dismissed in limine.

Ch.Ghulam Rasool v. Mrs. Nusrat Rasool and 4 others PLD 2008 SC 146 rel.

(b) Benami transaction---

----Essential elements---Essential elements to establish benami transaction were agreement either express or implied between the ostensible owner and the purchaser for the purchase of property in the name of ostensible owner for the benefit of the person who had to make payment of the consideration and transaction actually entered between the real purchaser and seller to which ostensible owner was not party

Ch.Ghulam Rasool v. Mrs. Nusrat Rasool and 4 others PLD 2008 SC 146 rel.

YLR 2017 LAHORE HIGH COURT LAHORE 232 #

2017 Y L R 232

[Lahore]

Before Abdul Sami Khan and Sadaqat Ali Khan, JJ

HAKMIN ZAFAR and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.810 of 2013, heard on 6th March, 2015.

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

----Ss. 302, 324, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, common object, act of terrorism---Appreciation of evidence---Benefit of doubt---Common intention---Scope---No injury was attributed to accused persons on the person of the deceased and injured prosecution witnesses---FIR that two accused persons, were empty handed at the place of occurrence at the time of occurrence---Nothing was recovered from the possession of accused persons---No motive of occurrence had been introduced by the prosecution---Occurrence took place at the spur of the moment---No overt act was attributed to accused persons---No one from accused persons, was driving the car in question---Prosecution failed to bring home guilt of accused persons to the hilt---Accused persons were ordered to be acquitted, extending them benefit of doubt, in circumstances.

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

----S. 34---Common intention---Principle of vicarious liability---Scope---To attract the provisions of S.34, P.P.C., there must be some proof of overt act on the part of each accused, taken in furtherance of the common intention---Mere presence of accused (with the co-accused, who committed the offence) without any overt act at the place of occurrence could not be sufficient to connect him with vicarious liability---Principle of vicarious liability, could not be invoked, unless and until common intention and object was proved---Strong circumstances must exist manifesting a common intention---Word "intention", was a state of mind which was not ordinarily ascertainable; but was to be gathered or inferred only from external act; and for that purpose, it was very necessary to examine the act of accused---Material must be available to show some overt act done in furtherance of common intention.

Hassan v. The State 1969 SCMR 454 rel.

Azam Nazir Tarar and Lehrasip Hayat Dahar for Appellants.

Asif Nissoana for the Complainant.

Khurram Khan, D.P.G. for the State.

YLR 2017 LAHORE HIGH COURT LAHORE 252 #

2017 Y L R 252

[Lahore]

Before Mirza Viqas Rauf, J

SAQIB PAL---Petitioner

Versus

Mst. BEENISH KHUSHNUD and others---Respondents

Writ Petition No.5855 of 2013, heard on 13th November, 2014.

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

----Ss. 5, Sched & 17---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance allowance and dowry articles---Wife had claimed maintenance at the rate of Rs. 50,000/- per month but no cogent evidence was led to prove the financial sources of husband that he was in a position to pay maintenance at the said rate---Husband used to pay maintenance allowance to the wife at the rate of Rs.4/5 thousands per month---Family Court had fixed maintenance allowance at the rate of Rs. 5,000/- per month from the date of desertion till the expiry of iddat period of wife---Wife had reiterated her claim with regard to dowry articles as asserted in the plaint while appearing in the witness box---No plausible evidence was on record that wife had not brought any dowry articles---Both the parties were closely related to each other and father of wife was enjoying good financial status---Evidence of husband to dislodge the claim of dowry articles was self contradictory---Judgment, passed by the Appellate Court, was well reasoned---No hard and fast rule could be laid down as a criterion for proving dowry articles as it would vary from case to case---No adverse presumption could be drawn in the light of Art. 129(g) of Qanun-e-Shahadat, 1984---Wife had led cogent evidence to prove her claim of dowry articles---Family Court had passed decree after properly evaluating the evidence available on record---Judgment of Family Court was based on reasoning and the same was fully supported by evidence available on record---Appellate Court had upheld the judgment of Family Court with only a slight modification---Judgments of both the courts below were based on proper appraisal of evidence---No mis-reading or non-reading of evidence or jurisdictional defect had been pointed out in the impugned judgments and decrees passed by the courts below---Constitutional petition was dismissed, in circumstances.

Gul Rehman v. Gul Nawaz Khan 2009 SCMR 589; Noor Muhammad and 2 others v. Nooruddin and 3 others 2010 MLD 1731; Syed Nazar Hussain Shah v. Federation of Pakistan through Secretary to the Government of Pakistan Establishment Division, Islamabad and 6 others PLD 1996 SC 592; Muhammad Tahir Sherazi v. Additional District Judge, Rawalpindi and others 2010 YLR 540; Muhammad Arif v. Irshad Bibi and 2 others 2010 CLC 988 Muhammad Ashiq v. Additional District Judge, Okara and 2 others 2003 CLC 400; Mushtaq Hussain and others v. Muhammad Inayat and others PLD 2012 Lah. 234; Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522; The Masjid Committee, Tagore Park v. Rashidul Haq and others 1982 SCMR 65; Aneela Akhtar v. Muhammad Irfan and 2 others 2009 MLD 945 and Mst. Bushra Nazneen v. Allah Ditta and 2 others 2004 CLC 1700 ref.

Noor Muhammad and 2 others v. Nooruddin and 3 others 2010 MLD 1731; Syed Nazar Hussain Shah v. Federation of Pakistan through Secretary to the Government of Pakistan Establishment Division, Islamabad and 6 others PLD 1996 SC 592 and Mushtaq Hussain and others v. Muhammad Inayat and others PLD 2012 Lah. 234 distinguished.

Mst. Mehbooba v. Abdul Jalil 1996 SCMR 1063 and Mst. Ayesha Shaheen v. Khalid Mehmood and others 2013 SCMR 1049; M. Jaffar v. Additional District Judge and others 2005 MLD 1069; Mst. Farah Naz v. Judge Family Court, Sahiwal and others PLD 2006 SC 457 and Mst. Mehbooba v. Abdul Jalil 2008 SCMR 1584 rel.

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

----S. 17---Provisions of Qanun-e-Shahadat, 1984 and Civil Procedure Code, 1908---Applicability---Provisions of Civil Procedure Code, 1908 as well as Qanun-e-Shahadat, 1984 were not applicable in stricto senso to the proceedings before the Family Court.

----Art. 199---Constitutional jurisdiction of High Court---Scope---Appraisal of evidence was the function of courts below---If findings of courts below were based on proper appraisal of evidence, the same could not be interfered with in exercise of constitutional jurisdiction---High Court however, could interfere if there were gross mis-reading or non-reading of evidence or any jurisdictional defect floating on the surface of record.

Amir Mahmood for Petitioner.

Nadeem Ahmad Sheikh for Respondent No.1.

YLR 2017 LAHORE HIGH COURT LAHORE 267 #

2017 Y L R 267

[Lahore]

Before Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

ABID and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 1362, Criminal Revision No.762 and Murder Reference No.445 of 2010, heard on 16th September, 2015.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-Amd---Appreciation of evidence---Motive---Benefit of doubt---Complainant and eye-witnesses though alleged the motive for occurrence but failed to produce any witness to prove motive part of occurrence---Whole prosecution case was hinging upon conjectures and surmises and it 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, uncorroborated evidence and conviction in such circumstances was against all canons of law recognized for dispensation of criminal justice---High Court set aside the conviction and sentence awarded to accused as prosecution failed to prove the charge against him beyond any reasonable doubt and the accused was acquitted of the charge---Appeal was allowed under circumstances.

Muhammad Akram v. The State 2009 SCMR 230 and Ayub Masih v. The State PLD 2002 SC 1048 rel.

Muhammad Afzal Shad for Appellants (in Criminal Appeal No.1362 of 2010).

Syed Nisar Ali Shah for Petitioner (in Criminal Revision No.762/2010) and for Complainant (in Criminal Appeal No.1362/2010).

Humayoun Aslam, Deputy Prosecutor General for the State.

YLR 2017 LAHORE HIGH COURT LAHORE 283 #

2017 Y L R 283

[Lahore]

Before Muhammad Tariq Abbasi and Qazi Muhammad Amin Ahmed, JJ

LIAQAT ALI and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.141-J, 649 and Murder Reference No.148 of 2011, heard on 17th November, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Autopsy of dead body was conducted after almost nine hours of death of the deceased---One of the prosecution witnesses, was real brother of the deceased, while other one was his daughter---Past history and alleged motive qua accused persons, their implication as a result of suspicion, guesswork or information provided by others, could not be ruled out---Deceased before his death, was carrying with him a .12 caliber repeater gun; he could not find a chance to use that gun in a situation, where it was most urgently needed; none of the assailants was shown as carrying fire-arm---Occurrence did not take place in a manner as alleged by the complainant---Motive for the crime was a criminal case between the parties in progress for last two years---Violence inflicted upon the deceased, did not commensurate with the grudge that accused persons would have possibly harboured in that background---Various aspects of the prosecution case, cast a dark shadow of doubt on the prosecution case---Conviction of accused persons was not safe in circumstances, they were acquitted from the charge extending them benefits of doubt and ordered to be released forthwith.

Muhammad Ramzan alias Botta v. The State PLD 1999 Lah. 221 ref.

Barrister Salman Safdar for Appellants.

Muhammad Afzal Azeem Pahat for the Complainant.

Malik Muhammad Jafar, Deputy Prosecutor General for the State.

YLR 2017 LAHORE HIGH COURT LAHORE 292 #

2017 Y L R 292

[Lahore (Rawalpindi Bench)]

Before Qazi Muhammad Amin Ahmad and Raja Shahid Mehmood Abbasi, JJ

AMIR SHAHZAD---Appellant

Versus

The STATE---Respondent

Crl. Appeal No.42-J and Murder Reference No.49 of 2011, heard on 16th February, 2016.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---FIR, had been lodged with sufficient promptitude, wherein accused had been nominated as the sole perpetrator of the offence of murder---Presence of both the eye-witnesses, who were father and mother of deceased, was not unnatural or unusual---Father of the deceased child, was real brother of accused, due to such close and sensitive relation with accused, father and mother of the deceased, were not likely to implicate accused falsely in a case involving the murder of their son---Eye-witnesses, were subjected to lengthy cross-examination, but nothing favourable to accused could be extracted---Both said eye-witnesses/parents of the deceased, were consistent and straightforward on all the salient details of the prosecution case; their renditions were in consonance with medical evidence---Prosecution had proved the ocular account through sound, cogent, motivating, trustworthy, reliable and confidence inspiring eye-witness account---Accused had mercilessly butchered an innocent child by slaughtering his neck---Desperate act of accused gave irreparable loss to the complainant party---Prosecution had proved motive set up in the case---No mitigating circumstances, existed warranting reduction in sentence---Sentence of death as well as the order of payment of compensation, passed against accused by the Trial Court, was maintained---Murder Reference, was answered in the affirmative.

Zahoor Ahmad v. The State 2007 SCMR 1519 rel.

Mumtaz Ali Khan for Appellant.

Mirza Muhammad Usman, Deputy Prosecutor General and Asghar ASI for the State.

Miss Asma Mushtaq for the Complainant.

YLR 2017 LAHORE HIGH COURT LAHORE 304 #

2017 Y L R 304

[Lahore (Rawalpindi Bench)]

Before Shahid Mubeen, J

NASRA MALIK---Petitioner

Versus

MUHAMMAD NAWAZ and 6 others---Respondents

C.R. No.458-D of 2010, decided on 19th April, 2016.

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

----S.11---Res judicata---Findings of fact---Scope---Appellate Court framed additional issues which had already been decided in another suit and remanded the case for decision afresh--- Validity--- Additional issues framed by the Appellate Court had already been decided by the Trial Court---Findings of fact recorded in the previous suit would be res judicata in the subsequent suit---Declaration given by a court with regard to issues that had been decided therein would be res judicata---Framing of additional issues was hit by principle of res judicata as judgments and decrees in the suit had attained finality---Impugned judgment and decree passed by the Appellate Court were set aside---Appeal was to be deemed to be pending before the Appellate Court for decision afresh on merits---Revision was allowed accordingly.

Muhammad Akbar and others v. Mst. Sahib Khatoon and others 1991 SCMR 1196 and Pir Bakhsh presented by his Legal Heirs and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145 rel.

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

----S. 11---Res judicata---Applicability---Scope---Principle of res judicata would be applicable if court emanating the decision was competent to adjudicate the matter; matter directly and substantially in issue in the subsequent suit had been directly and substantially in issue in the former suit; former suit as well as present suit should have been between the same parties or between parties under whom they or any of them claimed or litigated under the same title in the former suit; court trying the former suit had been a court competent to try the subsequent suit and the suit in which such issue was subsequently raised had been heard and finally decided in the first suit.

Mehmood Azam Baloch for Petitioner.

YLR 2017 LAHORE HIGH COURT LAHORE 320 #

2017 Y L R 320

[Lahore]

Before Qazi Muhammad Amin Ahmed and Ch. Mushtaq Ahmad, JJ

HAFEEZ ULLAH and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos.1646, 2214 and Murder Reference No.564 of 2010, decided on 25th January, 2016.

Penal Code (XLV of 1860)---

----Ss.302(b), 324, 337-F(iii) & 337-F(vi)---Qatl-i-amd, attempt to commit qatl-i-amd, Ghayr-jaifah mutalahimah and Ghayr-jaifah munaqqilah---Appreciation of evidence---Benefit of doubt---Previous enmity---Delay in autopsy---Previous enmity was a common ground and corroboration was rule of prudence and not that of law---Corroboration was imperative where witnesses, seemingly had an axe to grind---In absence of independent corroboration, it would be unsafe to rely upon an improved version of witnesses introduced for first time during trial---Improvements were so huge that they tend to change entire complexion of occurrence and therefore, could not be described merely as explanatory--- Improvements were ludicrous to say the least as it was not possible for human eye to capture entry, exit and re-entry of a bullet that too inside the car in darkness---Once a witness was found to have a capacity and tendency to exaggerate, his testimony warranted stringent scrutiny particular in the case with the history of previous enmity---Delay between occurrence and autopsy admitted a reasonable possibility that FIR was not recorded at a point of time mentioned therein--- All such circumstances cumulatively cast a shadow of doubt on prosecution story regarding accused and it was unsafe to maintain the conviction---High Court extended benefit of doubt to accused and acquitted him of the charge.

Mudasar Naveed Chatha and Syed Muhammad Farhad Tirmzi for Appellant.

Syed Zahid Hussain Bokhari for the Complainant.

Malik Muhammad Jaffar, Deputy Prosecutor General for the State.

YLR 2017 LAHORE HIGH COURT LAHORE 337 #

2017 Y L R 337

[Lahore (Bahawalpur Bench)]

Before Zafarullah Khan Khakwani, J

SHAHZAD ASLAM and others---Petitioners

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Revision No.145 of 2009, decided on 13th October, 2015.

Civil Procedure Code (V of 1908)---

----O. XVII, R. 3---Civil suit---Closure of evidence---Trial Court granted sufficient opportunities to the plaintiffs for their evidence but they failed to do so---Suit remained pending for about five years for recording evidence of plaintiffs---Plaintiffs made impossible for the Trial Court to further progress with the suit by not producing evidence---Trial Court had no option but to close the evidence and dismiss the suit---Impugned order was passed to save administration of justice---Penal provision had been invoked due to failure of plaintiffs to produce evidence---Nothing was on record that Trial Court had exercised its discretion capriciously or arbitrarily while passing the impugned order---No infirmity, irregularity or jurisdictional defect was pointed out in the impugned judgments and decrees passed by the courts below---Revision was dismissed in circumstances.

Rana Tanveer Khan v. Naseer ud Din and others 2015 SCMR 1401; Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and 6 others PLD 2003 SC 180; Abdul Shakoor and others v. Province of the Punjab and 4 others 2005 SCMR 1673 and Syed Tasleem Ahmad Shah v. Sajawal Khan and others 1985 SCMR 585 rel.

Jamshed Iqbal Khakwani for Petitioners.

Muhammad Iqbal Maher Assistant Advocate General for Respondents Nos. 1 to 4.

Muhammad Altaf Nawaz for Respondents Nos. 6 and 7.

YLR 2017 LAHORE HIGH COURT LAHORE 364 #

2017 Y L R 364

[Lahore (Multan Bench)]

Before Farrukh Gulzar Awan, J

GHULAM MURTAZA alias BUBAL---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.215-B of 2016, decided on 3rd February, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302 & 392---Qatl-i-amd, robbery---Bail, grant of---Further inquiry---Accused was implicated in the case in a supplementary statement made by the complainant; wherein he showed his belief regarding involvement of accused in the occurrence being based on the evidence of Wajtakkar and prosecution witnesses---Occurrence was of dark-night, wherein features of the assailants had not been mentioned in the FIR---Nothing incriminating was brought on record against accused, except the recovery of veil (Lungi/Mandasa) which was not the weapon of offence, and extra judicial confession, allegedly made by accused before prosecution witnesses---Veracity of said recovery of veil and that of inadmissible alleged extra judicial confession, would be thrashed at trial stage---Investigation had been finalized and the continued incarceration of accused, would serve no useful purpose to the prosecution---All said factors, had success-fully made out case of accused being one of further inquiry---Accused being entitled to concession of bail, he was admitted to bail, in circumstances.

Allah Ditta v. The State and others 2012 SCMR 184 rel.

Syed Chiragh Din Shah Bukhari for Petitioner.

Mian Haq Nawaz Saqib for the Complainant.

YLR 2017 LAHORE HIGH COURT LAHORE 375 #

2017 Y L R 375

[Lahore (Rawalpindi Bench)]

Before Syed Shahbaz Ali Rizvi and Raja Shahid Mehmood Abbasi, JJ

AQEEL alias MUNDRI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.535 and Murder Reference No.103 of 2011, heard on 12th November, 2015.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Inordinate delay in reporting the matter, remained unexplained; and it could be inferred that incident was not witnessed by the complainant and prosecution witness---Post-mortem report, was prepared with ante timing---Both, the complainant and prosecution witness, were not only related to the deceased, but had inimical background with accused party---No reason for being present at the scene of occurrence was given by the eye-witnesses during the investigation---Person in whose shop occurrence took place, being the owner of said shop, was a natural and material witness, but the prosecution had intentionally and dishonestly withheld evidence of such natural witness---Prosecution story, narrated by the complainant and prosecution witness, regarding actual occurrence, was doubtful and untrustworthy---Medical evidence, was also not in consonance with the ocular account, but was inconsistent with the ocular account---Actual motive of the incident remained shrouded in mystery---Negative report of Forensic Science Laboratory, having not been proved by the prosecution in evidence, evidence of alleged recovery of crime weapon, could not be used against accused---Accused in his statement under S.342, Cr.P.C., had stated, that he absconded due to his false implication in the case which was quite probable in the prevailing socio-cultural background of the area---Co-accused persons, had already been acquitted, and no appeal against their acquittal had been filed, either by the complainant or the State---Present case was replete with the circumstances, which had created serious doubts about the prosecution story---Prosecution having failed to prove its case against accused beyond shadow of reasonable doubt, conviction and sentence recorded by the Trial Court against accused, were set aside, he was acquitted of the charge, extending him benefit of doubt, and was released, in circumstances.

Muhammad Riaz v. The State 2009 PCr.LJ 1022; Irshad Ahmed v. The State 2011 SCMR 1190; Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327 and Mehmood Ahmad and 2 others v. State 1995 SCMR 127 ref.

Lal Khan v. The State 2006 SCMR 1846 and Muhammad Rafique and others v. The State and others 2010 SCMR 385 rel.

(b) Criminal trial---

----Motive---Scope---Motive was normally considered double edged weapon that would cut both ways---If it could be a reason for commission of an offence same could also be a reason for false implication of an accused in a criminal case.

----S. 302(b)---Qatl-i-amd---Abscondance of accused---Abscondance, could not be taken as a proof of guilt, if otherwise sufficient connecting evidence against accused, was not available---Abscondance would create a suspicion in mind, but same was not a conclusive proof of guilt.

Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812 ref.

Rasool Muhammad v. Asal Muhammad and another 1995 SCMR 1373 rel.

(d) Criminal trial---

----Benefit of doubt---Scope---Prosecution was to prove its case against accused by standing on its own legs and it could not take any benefit from the weaknesses of the case of the defence---If there was a single circumstance creating reasonable doubt regarding prosecution case, same was sufficient to give benefit of the same to accused.

Ayub Masih v. The State PLD 2002 SC 1048 ref.

Muhammad Fakhar Hayat Awan for Appellant.

Muhammad Waqas Anwar, Deputy Prosecutor General and Karamat, S.I. for the State.

Ch. Salim ul Haq for the Complainant.

YLR 2017 LAHORE HIGH COURT LAHORE 399 #

2017 Y L R 399

[Lahore]

Before Ali Akbar Qureshi, J

Mst. HAMEEDAN BIBI and another---Petitioners

Versus

MUHAMMAD SHARIF---Respondent

C.R. No.3264 of 2010, heard on 18th March, 2016.

Gift---

----Cuttings on document of mutation---Effect---Cuttings which had been made on the mutation were sufficient to declare the gift deed null and void---Donee did not make statement with regard to date, time and place of making oral gift and names of witnesses in whose presence same was made---Thumb mark of donor was not available over the gift mutation which was sufficient to declare the gift deed unlawful and product of fraud---Ingredients of gift i.e. offer, acceptance and delivery of possession were missing in the present case---Donee was required to prove the oral gift independently that of the gift mutation---Scribe or signatory of gift or any official from the revenue staff had not been produced to prove the alleged gift---Alleged gift deed was produced in the statement of counsel which was not admissible in evidence---No gift, in circumstances, was made by the donor in favour of donee---Alleged gift was product of fraud and fabrication to deprive the plaintiffs from secured and guaranteed rights---Donee had played fraud with his sisters to grab their sharia shares---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Revision was allowed in circumstances.

Khan Muhammad Yusuf Khan Khattak v. S. M. Ayub and 2 others PLD 1973 SC 160; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Mst. Gohar Khanum and others v. Mst. Jamila Jan and others 2014 SCMR 801 not applicable.

Mian Muhammad Ali Kasuri for Petitioners.

Muhammad Shehzad Shoukat for Respondent.

YLR 2017 LAHORE HIGH COURT LAHORE 419 #

2017 Y L R 419

[Lahore]

Before Qazi Muhammad Amin Ahmed and Ch. Mushtaq Ahmad, JJ

MUHAMMAD NAWAZ and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.326 and Murder Reference No.113 of 2011, decided on 17th December, 2015.

Penal Code (XLV of 1860)---

----Ss. 55, 57 & 302 (b)---Criminal Procedure Code (V of 1898), S. 382-B---Qatl-i-amd---Appreciation of evidence---Mitigating circumstances--- Sentence, reduction in---Motive, shrouded in mystery---Incident occurred within the area adjacent to village Abadi, in broad daylight---Presence of eye-witnesses, both cultivators by profession at the venue at relevant time was natural and probable---Father of deceased furnished graphic details of incident and successfully withstood test of cross-examination unscathed---Other prosecution witness was in line with father of deceased on all salient features of prosecution case---Two prosecution witnesses could not be blamed to have an axe to grind against accused persons---Case set up in complaint was straightforward, corroborated by medical evidence---Casings secured from the spot were dispatched to Forensic Science Laboratory prior to the arrest of accused persons and the same were found to have been fired from weapons recovered at the instance of accused persons---Acquittal of co-accused did not adversely affect the case of prosecution regarding accused persons as they were not assigned any harm either to deceased or to prosecution witnesses, as they were exonerated during the course of investigation, they had been acquitted out of abundant caution to ensure safe administration of criminal justice---Accused were arrested on 27-9-2009 and convicted on 12-2-2011 and under S. 57, P.P.C., imprisonment for life was to be reckoned as equivalent to 25 years---In case of denial of benefit of S. 382-B, Cr.P.C. to accused, their sentences would remain within the permissible period provided under the law as they still could possibly avail remissions under S. 55, P.P.C.---When two real brothers were brutally murdered, no other than their first cousins; one of them, a brother-in-law as well within the view of their aging father and real sister on petty issue, origin whereof remained shrouded in mystery, through successive fires shots in broad daylight---High Court declined to extend benefit provided under S. 382-B, Cr.P.C. and converted sentence of death into imprisonment for life---Appeal was dismissed in circumstances.

Ahmad v. The State 2015 SCMR 993; Naveed alias Needu and others v. The State and others 2014 SCMR 1464; Shah Hussain v. The State PLD 2009 SC 460 and Muhammad Zaheer alias Tiko v. The State 2011 SCMR 38 rel.

Munir Ahmad Bhatti and Asad Abbas Dhother for Appellants.

Ch. Qamar Javed for the Complainant.

Malik Muhammad Jaffar, Deputy Prosecutor General for the State.

YLR 2017 LAHORE HIGH COURT LAHORE 436 #

2017 Y L R 436

[Lahore]

Before Syed Shahbaz Ali Rizvi and Ch. Mushtaq Ahmad, JJ

TALIB HUSSAIN and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No.425 of 2012/BWP, Murder Reference No.4 of 2013/BWP and PSLA No.3 of 2013/BWP, heard on 7th March, 2016.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment of qatl-i-amd, common intention--Appreciation of evidence---Complainant had stated that he along with two others were going to the village in order to search his son and one relative who had gone there to see their friend at 9:00 p.m., but did not return till 2:00 a.m.---Complainant party was at some distance from the said village that they saw both(deceased) accompanied by an unknown girl (deceased) coming on a motor cycle---Two persons appeared and made indiscriminate firing on deceased persons and fled away---Witnesses of ocular account did not mention in FIR name of person to whom deceased had gone to see neither the said person was produced before Investi-gating Officer nor was summoned for verification---Deceased girl accompanying both male deceased was real sister of accused and as per defence was being taken forcibly by deceased persons---Prosecution could not justify company of deceased girl with the other deceased persons---One deceased was owner of motorbike as well as a car but motorbike found at the place of occurrence was obtained on rent---Deposition of complainant showed that firing upon the deceased was made from right side of deceased but fire hit on fuel tank of motorcycle on left side---Occurrence took place at 2:30 a.m. while matter was reported at 7:30 a.m. such delay was not properly explained---FIR and complaint did not show arrival of accused on motorcycle which was recovered during investigation---Motive was not alleged by prosecution---Presence of witnesses of ocular account at the place of occurrence at relevant time had become doubtful---Abetment by father of accused, as alleged, was not proved by confidence inspiring evidence---Appeal was dismissed.

(b) Criminal trial---

---Ocular testimony, disbelieved---Effect---When ocular testimony was disbelieved then recovery as well as medical evidence were of no help to prosecution.

---Onus of establishing case---Prosecution had to establish its own case independently instead of depending upon weaknesses of defence.

Waqar Ahmad v. Shaukat Ali and others 2006 SCMR 1139 rel.

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

----S. 342---Statement of accused---Acceptance or rejection---Statement of accused under S.342, Cr. P. C. was to be accepted or rejected as a whole.

Waqar Ahmad v. Shaukat Ali and others 2006 SCMR 1139 and Muhammad Asghar v. The State PLD 2008 SC 513 rel.

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

----S.302---Criminal Procedure Code (V of 1898), S.342---Qatl-i-amd---Admission of guilt by accused---Prosecution failing to prove case---Effect---Where prosecution had failed to prove its case against accused beyond reasonable doubt, accused might be acquitted even if he had taken plea and admitted killing the deceased.

Muhammad Asghar v. The State PLD 2008 SC 513 and Azhar Iqbal v. The State 2013 SCMR 383 rel.

Rai Bashir Ahmad for Appellants.

Javed Hashmi for the Complainant.

Malik Muhammad Jaffer, Deputy Prosecutor General for the State.

YLR 2017 LAHORE HIGH COURT LAHORE 448 #

2017 Y L R 448

[Lahore]

Before Sadaqat Ali Khan and Erum Sajad Gull, JJ

MUHAMMAD NAEEM alias NEEMON and 2 others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No.1802 of 2012, heard on 29th March, 2016.

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

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Kidnapping or abduction for ransom, terrorism---Appreciation of evidence---Benefit of doubt---Complainant, whose son was allegedly kidnapped by the accused persons, had not supported the prosecution version---Complainant had stated that ransom amount was handed over to the police, not to the abductors---Prosecution witness/complainant had also stated that he had nominated the accused persons on the direction of police---Said circumstances had created serious doubt about the veracity of the prosecution case, benefit of which would resolve in favour of accused---Appeal was allowed and conviction and sentence recorded by Trial Court were set-aside and accused were acquitted.

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

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping for ransom, terrorism---Appreciation of evidence---Benefit of doubt---Allegation on the accused was that they abducted the minor son of the complainant for ransom---Prosecution witnesses had stated that, they, with the complainant accompanied the police to recover the abductee and themselves handed over the ransom amount to the accused persons---Prosecution witnesses were confronted with their statements recorded under S. 161, Cr.P.C., which were not in line with their statement recorded before the Trial Court---Prosecution witnesses neither mentioned the name of accused who demanded the ransom amount nor had specifically named the accused to whom they handed over the alleged ransom amount---Attending circumstances had created doubt about the veracity of prosecution story, benefit of which resolved in favour of accused---Appeal was allowed and conviction and sentence recorded by Trial Court were set-aside and accused persons were acquitted.

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping for ransom, terrorism---Appreciation of evidence---Benefit of doubt---Allegation on the accused was that they abducted the minor son of the complainant for ransom---Ransom amount was recovered from the accused persons but the recovered currency notes were not marked--- Recovered currency notes and mobile phone were not sealed in separate bags---No detail of the house from where the alleged minor was recovered was furnished---No documents to prove the ownership of the said house were produced---Independent witnesses were not made to join the recovery proceedings---Said circumstances had created serious doubt about the prosecution story---Appeal was allowed and conviction and sentence recorded by Trial Court were set-aside and accused persons were acquitted.

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

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Kidnapping or abduction for ransom, terrorism---Appreciation of evidence--- Benefit of doubt--- Star witness/abductee, not produced---Allegation on the accused persons was that they had kidnapped the minor son of the complainant---Alleged abductee/minor did not appear as a witness before the Trial Court though the Investigating Officer had recorded the statement of abductee (minor)---Non-producing of abductee/ minor before the Trial Court, cast a serious doubt on the prosecution version, benefit of which would resolve in favour of accused---Appeal was allowed and conviction and sentence recorded by Trial Court were set-aside and accused persons were acquitted.

(e) Criminal trial---

----Benefit of doubt---Principle--Single reasonable doubt created in the prosecution case would warrant acquittal of the accused.

Muhammad Zaman v. The State and others 2014 SCMR 749 rel.

M. Shahzad Awan for Appellant No.1.

Ch. Muhammad Imtiaz Bajwa for Appellant No.2.

Mian Muhammad Ramzan for Appellant No.3.

Tariq Javed, Deputy Public Prosecutor for the State.

YLR 2017 LAHORE HIGH COURT LAHORE 469 #

2017 Y L R 469

[Lahore]

Before Aalia Neelum and Syed Shahbaz Ali Rizvi, JJ

TANVIR AHMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.2094 of 2011 and Murder Reference No.19 of 2012, heard on 27th April, 2016.

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

----Ss. 302, 324, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon and unlawful assembly---Appreciation of evidence---Delay of more than two hours in lodging FIR---Consultation and deliberation---Occurrence took place at 5.00 pm and matter was reported to the police at 6.30 pm, on the same day and FIR was lodged at 7.15 pm---Police station was situated 10 kilometer away from the place of occurrence---Such delay was not fatal for the prosecution case in view of the preponderance of evidence adduced in the case---Appeal against conviction was dismissed accordingly.

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

----Ss. 302, 324, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon and unlawful assembly---Appreciation of evidence---Ocular account, corroborating medical evidence---Eye-witnesses had given a vivid account of the sequence of events and fully proved the prosecution case---No material discrepancy or contradiction was found in the statement of the prosecution witnesses---Post-mortem report of deceased corroborated ocular account---Medical evidence corroborated the injury attributed to the accused, which was found on the dead body of the deceased---Appeal was dismissed accordingly.

----Witness---Minor discrepancies in the statement of prosecution witnesses---Effect---Minor discrepancies in the statement of prosecution witnesses, due to lapse of time, in between the time of occurrence and when the witnesses deposed in the court---Such like discrepancies, could not affect the merits of the case.

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

----Ss. 302, 324, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon and unlawful assembly---Appreciation of evidence---Sentence, reduction in----Motive not proved---Effect---Motive as alleged by the prosecution was that there was a conflict over Local Bodies elections between the deceased and accused---No evidence had been produced to prove the factum of such conflict---Motive as alleged was not proved in circumstances---Other available evidence established the involvement of accused in the occurrence---Death sentence awarded to accused was reduced to life imprisonment in circumstances.

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

----Ss. 302, 324, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon and unlawful assembly---Appreciation of evidence---Non-recovery of weapon and crime empty of offence from accused---Direct evidence against accused available---Effect---Cases in which, direct evidence was available, non-recovery of weapon of offence was not material and could not take away the probative force of the ocular account---Appeal against conviction was dismissed.

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

----Ss. 302, 324, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon and unlawful assembly---Appreciation of evidence---Finding of innocence by police during investigation---Relevance---Accused was declared proclaimed offender in the case by the Trial Court---Finding of innocence by police had no force as investigating officer deposed that twenty three persons appeared for defence of accused but did not record their statement---Accused was arrested after five years of the occurrence---Such circumstances suggested that accused was guilty---Finding of police about innocence of accused had no evidentiary value as same was recorded without any solid material---Opinion of the police was not binding upon the court---Appeal against conviction was dismissed.

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

----Ss. 302, 324, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon and unlawful assembly---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Non-proving of motive and case of single fire shot could be taken as mitigating circumstance and benefit in such context could be given to accused as the accused was entitled to the benefit of every mitigating circumstance---Death sentence awarded to accused was reduced to life imprisonment.

Dilawar Hussain v. The State 2013 SCMR 1582 rel.

Muhammad Irfan Malik for Appellant.

Rana Imtiaz Hussain for the Complainant.

Muhammad Jaffer, Deputy Prosecutor General for the State.

YLR 2017 LAHORE HIGH COURT LAHORE 495 #

2017 Y L R 495

[Lahore]

Before Shujaat Ali Khan, J

GHULAM MUHAMMAD---Petitioner

Versus

MEMBER (JUDICIAL-III) BOARD OF REVENUE PUNJAB, LAHORE and others---Respondents

Writ Petition No.23989 of 2014, heard on 23rd May, 2016.

Contract Act (IX of 1872)---

----Ss. 31, 32 & 202---Specific Relief Act (I of 1877), S. 54---Colonization of Government Lands (Punjab) Act (V of 1912), S. 19---Suit for permanent injunction---General power of attorney---Agreement to sell by the attorney---Transfer of property by the Revenue Officer on the basis of decree for permanent injunction---Contingent contract---Scope---Alleged agreement to sell was subject to conferment of proprietary rights---Respondents could not sue for enforcement of conditional agreement to sell unless proprietary rights were granted in favour of original allottee or after his death in favour of his legal heirs---When vendee had executed general power of attorney along with an agreement to sell then transaction would be under S. 202 of Contract Act, 1872---Attorney had executed agreement to sell in favour of his own kids on the basis of general power of attorney---Attorney without seeking specific prior permission could not execute an agreement to sell with his near and dear ones---Decree was passed in a suit for permanent injunction but Revenue Officer considered the same as had been passed in a suit for specific performance---Matter was remanded to the Revenue Officer for decision afresh---Constitutional petition was allowed in circumstances.

Province of the Punjab through Collector District Khushab, Jauharabad and others v. Haji Yaqoob Khan and others 2007 SCMR 554; Abdul Rahim v. Mukhtar Ahmad and 6 others 2001 SCMR 1488; Messrs Business Computing International (Pvt.) Ltd. v. IBM World Trade Corporation 1997 CLC 1903; Messrs World Wide Trading Co. v. Sanyo Electric Trading Co. Ltd. and another PLD 1986 Kar. 234 and Syed Shafique Hussain v. Syed Abdul Qasim PLD 1979 Kar. 22 distinguished.

Muhammad Anwar v. Muhammad Aslam and others 2012 SCMR 345; Ashfaq Ahmed and 6 others v. Ch. Maqbool Raza and 4 others 2008 CLC 1340; Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811; Fida Muhammad v. Muhammad Khan PLD 1985 SC 341; Muhammad Yousaf v. Muhammad Ramzan and another 2010 YLR 3222 and Ghulam Sarwar and 6 others v. Mushtaq Ahmad and others 2006 YLR 1019 rel.

Sadaqat Mehmood Butt for Petitioner.

Rana Shamshad Khan, Additional Advocate General for Respondents Nos. 1 and 2.

Abdul Wahid Chaudhary for Respondents Nos. 3 to 6.

YLR 2017 LAHORE HIGH COURT LAHORE 524 #

2017 Y L R 524

[Lahore (Rawalpindi Bench)]

Before Syed Shahbaz Ali Rizvi and Raja Shahid Mehmood Abbasi, JJ

TAHIR MAHMOOD---Appellant

Versus

The STATE/ANTI NARCOTICS FORCE through Regional Director, ANF and others---Respondents

Criminal Appeals Nos.129, 135, 139 and Capital Sentence Reference No.4-N of 2011, heard on 18th November, 2015.

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

----Ss. 9(c) & 25---Possessing and trafficking narcotics---Appreciation of evidence---Sentence, reduction in---Minor contradictions in the evidence of prosecution witnesses, were not of great importance as statements of said witnesses were recorded in the court after about 4 years of the registration of the case---With the afflux of time, it was quite natural that some minor contradictions could occur in the evidence of the witnesses---All the prosecution witnesses remained firm on the material points and they had successfully discharged the initial burden of proving the recovery---When no prejudice was caused to accused, then functioning of complainant in his dual capacity as complainant as well as Investigating Officer, was neither illegal nor unlawful---Case property having been produced before the Trial Court, non-production of car in question, could not be termed as fatal to the prosecution case, as recovery was not effected from any of the secret compartments or cavities of the said car, rather the heroin was recovered from the bags, which were lying in the rear seat---Control of Narcotic Substances Act, 1997, being a special law, having clearly precluded the applicability of S.103 of Criminal Procedure Code, 1898, non-association of public witness during the recovery proceedings, was of no consequence---Accused persons could not furnish any plausible explanation for their false implication in the case---Plea of alibi taken by accused, was not supported by any independent evidence---Prosecution, had discharged the onus of proof by leading cogent and convincing evidence, but accused had failed to the contrary---High Court observed that approach of the court, while dealing with the case of narcotics, should always be dynamic, and court was to overlook technicality in the larger interest of the country and public at large; court had to consider the entire material on record as a whole and, if it was convinced that the case was proved, conviction should be recorded---Prosecution having successfully proved the charge against accused person by leading sufficient and cogent evidence, Trial Court had rightly appreciated the same while recording the conviction of accused under S.9(c) of Control of Narcotic Substances Act, 1997---Accused persons, were first offenders and having no antecedents of any criminal case to their score, death penalty being harsh punishment was converted into life imprisonment with benefit of S.382-B, Cr.P.C., in circumstances.

2009 YLR 1724; 2003 PCr.LJ 680; 2009 PCr.LJ 1334; 1986 PCr.LJ 418 and 2001 YLR 1123 distinguished.

State through Advocate General, Sindh v. Bashir and others PLD 1997 SC 408; Muhammad Mushtaq and another v. The State 2008 SCMR 742; Muhammad Khan v. The State 2008 SCMR 1616; Nadir Khan and others v. The State 1988 SCMR 1899; Munawar Hussain alias Bobi and 2 others v. The State 1993 SCMR 785; Tariq Mehmood v. The State through Deputy Attorney-General, Peshawar PLD 2009 SC 39; Muhammad Tariq v. The State 2009 SCMR 1220 and Ghulam Hussain Shah v. The State 2011 YLR 2198 rel.

Raja Ghaneem Aabir Khan for Appellant (in Criminal Appeal No.129 of 2011).

Abdul Rashid Sheikh for Appellant (in Criminal Appeal No.135 of 2011).

Muhammad Naveed Qureshi at State expense for Appellant (in Criminal Appeal No.139 of 2011).

Syed Intikhab Hussain Shah, Special Prosecutor for the Complainant.

YLR 2017 LAHORE HIGH COURT LAHORE 543 #

2017 Y L R 543

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Syed Shahbaz Ali Rizvi, JJ

MUHAMMAD HANIF alias FOUJI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.211-J and Murder Reference No.254 of 2009, heard on 10th February, 2015.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Both prosecution witnesses, were not the residents of the area where occurrence had taken place, but were residents of other places, which were situated at a distance of 14/15 and 16/17 Kilometers, respectively---Reason advanced by said witnesses for their presence at the place of occurrence at the relevant time, was not plausible and was quite un-natural---Statements of said witnesses, were not believable and appealable to the mind, being improbable and unnatural---Same could not be relied upon to maintain the conviction of accused---Said witnesses, contradicted each other and made dishonest improvements in the previous statements which had created the doubt about the veracity of their statements and made them unreliable---Three co-accused, who had been assigned specific roles were finally acquitted---Evidence which had been disbelieved qua the acquitted co-accused, could not be believed against accused, until and unless there was strong independent corroboration against him, which was lacking in the present case---FIR was registered after about 2 hours of the occurrence; and post mortem examination was conducted with the delay of more than twenty four hours---No explanation for such delay was furnished---Presence of witnesses at the scene of occurrence at the relevant time was doubtful and crime report was recorded after due deliberation and consultation---Nothing was on record, except oral narration of witnesses to strengthen the prosecution story regarding alleged dying declaration made by the deceased---Alleged declaration, which had already been disbelieved qua the three acquitted co-accused persons, could not be relied upon---Blood-stained chhuri, allegedly was recovered at the instance of accused after twenty-three days of occurrence---Evidence of the recovery of said chhuri and report of Chemical Examiner, and that of Serologist, in that respect, was not reliable---Even otherwise, evidence of recovery of chhuri, was merely a corroborative piece of evidence, and relevant only, when the direct evidence i.e. ocular account would inspire confidence, which was not the situation in the present case---Nothing was on record to suggest that any civil or criminal litigation was pending between the parties---Prosecution could not prove motive part of the occurrence against accused---Prosecution having failed to prove its case against accused beyond shadow of any reasonable doubt, conviction and sentence recorded by the Trial Court against accused, were set aside---Accused was acquitted from the charge levelled against him by extending him the benefit of doubt, and he was released, in circumstances.

Haroon alias Harooni v. The State and another 1995 SCMR 1627; Muhammad Saleem v. The State 2010 SCMR 374; Sheral alias Sher Muhammad v. The State 1999 SCMR 697; Akhtar Ali and others v. The State 2008 SCMR 6; Muhammad Akram v. The State 2012 SCMR 440; Muhammad Ali v. The State 2015 SCMR 137; Ali Sher v. The State 2015 SCMR 142; Muhammad Riaz v. The State 2009 PCr.LJ 1022; Irshad Ahmed v. The State 2011 SCMR 1190; Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327; Basharat and another v. The State 1995 SCMR 1735; Azhar Iqbal v. The State 2012 SCMR 383 and Muhammad Akram v. The State 2009 SCMR 230 ref.

(b) Criminal trial---

----Benefit of doubt---If there was a single circumstance which would create reasonable doubt regarding the prosecution case, same was sufficient to give benefit of the same to accused.

Tariq Pervez v. The State 1995 SCMR 1345 ref.

Ms. Nighat Saeed Mughal for Appellant.

Muhammad Nawaz Shahid, Deputy District Public Prosecutor for the State.

Pervaiz Inayat Malik and Ch. Muhammad Hanif for the Complainant.

YLR 2017 LAHORE HIGH COURT LAHORE 576 #

2017 Y L R 576

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

Dr. FAYYAZ AHMED CHEEMA---Petitioner

Versus

PUNJAB EMPLOYEES SOCIAL SECURITY INSTITUTION---Respondent

C.R. No.764 of 2016, decided on 12th May, 2016.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and injunction---Condemned unheard---Withholding of pensionary benefits---Plaintiff retired from service on attaining age of 60 years but his pensionary benefits were withheld on the ground of audit objections after 6-7 years of his retirement---Plaintiff assailed letter issued by authorities withholding his pensionary benefits on the plea of his condemning unheard---Suit filed by plaintiff was decreed in his favour but Lower Appellate Court reversed findings and dismissed the suit---Validity---Pensionary benefits of plaintiff were his vested right and authorities had no right to recover any amount outstanding against retired employee from his pension without issuing him show cause notice and giving him an opportunity to defend himself---Nothing was on record to show that any notice was sent to plaintiff---Pension of petitioner could not be stopped or withheld on any ground---Recovery of disputed amount was effected from plaintiff, which order was successfully challenged by him before competent departmental authority/ Commissioner---Order of Commissioner attained finality and authorities were not empowered under law to review, recall or upset the order which had already attained finality, that too after 6-7 years of retirement of plaintiff---High Court set aside findings recorded by Lower Appellate Court as the same were not sustainable in the eye of law, resultantly judgment and decree passed by Trial Court was restored---Revision was allowed in circumstances.

Muhammad Siddique v. Divisional Forest Officer, Okara 2014 PLC (C.S.) 253 and Bashir Ahmed Solangi v. Chief Secretary, Government of Sindh, Karachi and 2 others 2007 PLC (C.S.) 824 ref.

Haji Muhammad Ismail Memon, Advocate's case PLD 2007 SC 35; Tehsil Nazim TMA, Okara v. Abbas Ali 2010 SCMR 1437; Application by Abdul Rehman Farooq Pirzada PLD 2013 SC 829; Secretary, Government of Punjab, Finance Department v. M. Ismail Tayer 2014 SCMR 1336; Pakistan Telecommuni-cation Employees Trust (PTET), through M.D., Islamabad v. Muhammad Arif 2015 SCMR 1472 and Mrs. Riffat Sattar v. Government of Punjab through Secretary 2016 PLC (C.S.) 472 rel.

Aurangzeb Mirza for Petitioner.

YLR 2017 LAHORE HIGH COURT LAHORE 604 #

2017 Y L R 604

[Lahore]

Before Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

AFTAB---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.81 of 2010, heard on 5th November, 2015.

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

----Ss. 9(b) & 6----Criminal Procedure Code (V of 1898), S. 516-A, Second proviso---Possession of narcotic drugs etc.---Appreciation of evidence---Safe custody of narcotic substance, requirement of---Two reports of Chemical Examiner, first negative and second positive, regarding same substance were available on record---Second sample parcel was prepared without permission of Magistrate---Effect---Heroin weighing five hundred grams, was alleged to have been recovered from possession of the accused while he was transmitting the same---Trial Court convicted the accused and sentenced him for imprisonment for five years along with payment of fine---Prosecution had not established safe custody of the recovered substance, as reports of the Chemical Examiner regarding the same were contradictory---Prosecution witness deposed during cross-examination that he had delivered the sample parcel to the office of Chemical Examiner, but his report revealed that said sample did not contain heroin---Prosecution witness deposed that he had prepared a fresh sample of the case property and sent the same to Chemical Examiner after moving an application to Magistrate in that regard; neither such application nor order passed on the same by the Magistrate were available on record, which had falsified the prosecution case---Said witness also deposed that at time of preparing the sample, Moharrar was not with him---Said witness, having prepared the second sample of the case property, had sent the same to Chemical Examiner without any permission of the Magistrate---Section 516-A, second proviso, Cr.P.C. empowered the court to order, suo motu or on an application of any party and under its supervision and control, to obtain and prepare samples of the case property---Another prosecution witness also claimed during cross-examination that the second sample parcel had been handed over to him---Said contradiction with regard to the date of preparing and handing over of the second sample parcel to the Moharrar had created serious doubt; therefore, no implicit reliance could be placed on such type of evidence---Nothing was available on record to establish as to in whose presence said second sample had been prepared---Second positive report of Chemical Examiner did not carry any weight, especially, in absence of any evidence with regard to the safe custody of the recovered substance and due to the material illegality committed while preparing the second sample parcel---In view of the said material illegalities and contradictions, prosecution had failed to prove the case beyond any reasonable doubt through material and cogent evidence---High Court, setting aside impugned order, acquitted the accused---Appeal was allowed in circumstances.

Ch. Nawaar-ul-Haq Pannun for Appellant.

Muhammad Akhlaq, D.P.G. for the State.

YLR 2017 LAHORE HIGH COURT LAHORE 613 #

2017 Y L R 613

[Lahore]

Before Mirza Viqas Rauf, J

MUHAMMAD MUSHTAQ and others---Petitioners

Versus

Mst. NADIRA and others---Respondents

Writ Petition No.3266 of 2013, heard on 7th December, 2015.

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

----S. 12 (2)---Transfer of Property Act (IV of 1882), S.52---Suit for declaration---Ex-parte decree, setting aside of---Fraud and misrepresentation--- Alienation of property in presence of injunctive order---Caveat emptor, principle of---Applicability---Bona fide purchaser---Applicant purchased suit property in presence of injunctive order---Contention of applicant was that he was bona fide purchaser of suit land---Validity---Applicant purchased suit land in violation of injunctive order---Principle of caveat emptor was applicable in the present case---Plea of bona fide purchaser could not be agitated in presence of injunctive order---Transaction made during pendency of litigation could not affect the rights of any other party to the litigation who might acquire it under the decree passed by the court---Applicant was bound to prove the existence of fraud, misrepresentation and want of jurisdiction---Applicant was not party in the main suit and no question for his impleadment in the same would arise---No fraud, misrepresentation or jurisdictional defect had been pointed out in the impugned judgment and decree---Trial Court was not bound to frame issue before deciding the application filed under S.12(2), C.P.C.---Mere allegation of fraud was not sufficient to set at naught the judgment of a court of competent jurisdiction---Person asserting fraud had to bring on record sufficient and cogent material substantiating his plea of fraud---Appellate Court had erred in law while setting aside well-reasoned order of Trial Court---Impugned order passed by the Appellate Court was set aside and that of Trial Court was restored while dismissing the application for setting aside ex-parte decree---Constitutional petition was allowed in circumstances.

Industrial Development Bank of Pakistan through Deputy Chief Manager v. Saadi Asmatullah and others 1999 SCMR 2874; Khadim Hussain v. Abid Hussain and others PLD 2009 SC 419; Nazir Ahmed v. Muhammad Sharif and others 2001 SCMR 46 and Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Exercise of---Scope---High Court could exercise constitutional jurisdiction if revisional court had committed illegality.

Sardar Dilshad Ahmad for Petitioners.

Ch. Abdul Razzaq Kamboh for Respondents Nos. 12(i) to 12(v).

Respondents Nos.1 to 11, 13 and 14 are ex parte.

YLR 2017 LAHORE HIGH COURT LAHORE 626 #

2017 Y L R 626

[Lahore]

Before Atir Mahmood, J

MUNSHI KHAN through L.Rs. and others---Appellants

Versus

IKHLAQ AHMAD---Respondent

R.S.A. No.97 of 2008, heard on 23rd September, 2015.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement to sell---Unilateral agreement---Scope---Document could not be termed as an agreement/contract until and unless same was signed by both the parties---Alleged agreement to sell on the basis of which present suit had been decreed was not signed by the defendants---Such agreement could neither be said to be an "agreement" nor same could be enforced---Impugned judgments and decrees passed by the courts below were set aside and suit was dismissed---Second appeal was allowed in circumstances.

Mst. Gulshan Hamid v. Kh. Abdul Rehman and others 2010 SCMR 334 and Rashid Ahmad v. Messrs Friends Match Works PLD 1989 SC 503 ref.

Farzand Ali and others v. Khuda Bakhsh and others PLD 2015 SC 187 rel.

Muhammad Shahzad Shaukat for Appellants.

Saeed uz Zafar Khawaja and Ch. Muhammad Naseer for Respondent.

YLR 2017 LAHORE HIGH COURT LAHORE 648 #

2017 Y L R 648

[Lahore (Multan Bench)]

Before Shehram Sarwar Ch., J

ZAFAR IQBAL alias KODU---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.861 of 2011, heard on 25th January, 2016.

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

----Ss. 302, 109 & 34---Qatl-i-amd, common intention--- Appreciation of evidence---Delay about four days in lodging FIR---Effect---Inordinate and unexplained delay in reporting the matter to police for lodging FIR cast serious doubt about the veracity of prosecution story---Conviction and sentence recorded against accused were set-aside accordingly.

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

----Ss. 302, 109 & 34---Criminal Procedure Code (V of 1898), Ss. 382-B & 544-A---Qatl-i-amd, common intention---Appreciation of evidence---Prosecution case was that accused committed murder of husband of complainant on the instance of co-accused---Motive not established---Ocular account was in contradiction with medical evidence---Trial Court, acquitted co-accused by 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 on the basis of same evidence---No appeal was filed against the acquittal of co-accused---No direct evidence against the accused was available which could justify his conviction on a capital charge---Recovery was effected after sixteen days of the occurrence---Chemical Examiner report was prepared after twenty one days of the recovery---Confession of accused about the murder of deceased before co-accused, overheard by the complainant, which was extra-judicial confession, as such carried no weight---Prosecution had failed to prove its case against accused beyond any reasonable doubt---All such factors made the case of prosecution doubtful---High Court, setting aside conviction and sentence, acquitted accused---Appeal was accepted in circumstances.

Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120; Ata Muhammad and another v. The State 1995 SCMR 599 and Ayub Masih v. The State PLD 2002 SC 1048 rel.

----Extra-judicial confession---Evidentiary value---Extra-judicial confession was of weak type of evidence on the basis of which conviction on capital charge could not be recorded.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231; Tahir Javed v. The State 2009 SCMR 166; Ziaul Rehman v. The State 2001 SCMR 1405; Tayyab Hussain Shah v. The State 2000 SCMR 683 and Sarfraz Khan v. The State and others 1996 SCMR 188 rel.

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

----Ss. 302, 109 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Prosecution alleged that mother and sister of the deceased were of bad character---Deceased, for said reason; had beaten both these ladies one day prior to the occurrence---Due to such grudge, the two ladies committed the murder of deceased through accused---Prosecution had not produced any evidence qua motive against the accused---Motive was specifically attributed to the ladies who had been acquitted from the case, as such motive was not established against the accused---Conviction and sentence recorded against accused was set-aside.

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

----Ss. 302, 109 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery evidence---Weapon of offence was recovered after about sixteen days of the occurrence, which was received in the office of Chemical Examiner after about twenty one days of its recovery, in such circumstances, it was not possible that the blood on the weapon of offence would not disintegrate during such time---Such evidence per se did not name or nominate any accused nor did it prove or point to his guilt---Reliance could not be placed on the recovery of weapon of offence and report of Chemical Examiner in the present case---Conviction and sentence recorded against accused was set-aside accordingly.

Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 rel.

(f) Criminal trial---

----Medical evidence---Nature---Supporting evidence---Medical evidence was only a supporting piece of evidence because it might confirm the ocular evidence with regard to the receipt of injury, its locale, kind of weapon used for causing the injury, duration between the injury and the death, but it did not tell the name of the accused.

Ata Muhammad and another v. The State 1995 SCMR 599 rel.

(g) Criminal trial---

----Benefit of doubt---Scope---Where a simple circumstance would create reasonable doubt in a prudent mind about guilt of an accused, he would be entitled to such benefit, not as a matter of grace or concession but as of right.

Ayub Masih v. The State PLD 2002 SC 1048 rel.

Mudassar Altaf Qureshi for Appellant.

Sarfraz Ahmad Khan Khichi, Deputy District Public Prosecutor for the State.

Nemo for the Complainant.

YLR 2017 LAHORE HIGH COURT LAHORE 669 #

2017 Y L R 669

[Lahore (Multan Bench)]

Before Aslam Javed Minhas, J

MUHAMMAD IQBAL QURAISHI---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE/ JUSTICE OF PEACE and 2 others---Respondents

W.P. No.13860 of 2015, decided on 4th February, 2016.

(a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 20(4) & (6)---Criminal Procedure Code (V of 1898), S. 22-A---Dishonest issuance of cheque to a financial institution---Registration of case---Jurisdiction of Banking Court---Complainant-Bank filed petition under S. 22-A, Cr.P.C. against the petitioner for dishonored cheque---Direction was issued by Justice of Peace to Police for registration of case---Legality---Section 20(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001 was the provision which dealt with dishonest issuance of a cheque towards repayment of a finance or fulfilment of an obligation which was dishonored on presentation---Matter, where cheque was issued to a financial institution and same was dishonored, jurisdiction would lie only with the Banking Court established under the Financial Institutions (Recovery of Finances) Ordinance, 2001 and not before any other court until and unless provided by law by which the financial institution was established---Section 20(6) of the said Ordinance provided that the offences under the Ordinance would be bailable, non-cognizable and compoundable therefore the registration of a criminal case by the local police was not permitted by the law---Constitutional petition was accepted accordingly.

(b) Interpretation of statutes---

----Special law and general law---Special law and general law which were on the same subject were statutes in pari materia which would be read together and harmonized, if possible, with a view to giving effect to both.

----Special law and general law---Conflict between---Principle---Where special law was in conflict with general law, special law would prevail.

Malik Sajjad Haider Maitla for Petitioner.

Mansoor Aalam for Respondent No.3.

YLR 2017 LAHORE HIGH COURT LAHORE 686 #

2017 Y L R 686

[Lahore (Multan Bench)]

Before Qazi Muhammad Amin Ahmed and Muhammad Tariq Abbasi, JJ

MUHAMMAD IQBAL alias BALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.663 and Murder Reference No.149 of 2009, heard on 2nd December, 2014.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Ocular version of the witnesses having remained consistent and corroborative during cross-examination, could not be contradicted---No material contradiction in the statements of the witnesses, could be pointed out or observed---Complainant, though was close relative of the deceased yet no grudge or enmity with accused was on record---No reason, cause or justification existed to discard statement of the complainant only on the basis of his relationship with the deceased as the same was confidence inspiring---Both the witnesses had successfully established and justified their presence, and availability at the spot---Version of the witnesses, had been supported by the medical evidence---Fact that accused had fired at the deceased with pistol recovered from him was confirmed---Motive alleged in the complaint was not proved or established and was shrouded in mystery---Impugned judgment of conviction of accused, being based on correct appreciation and evaluation of the material available on record, was quite justified---Cause of occurrence, being still shrouded in mystery and accused having made only one fire shot, without any repetition, due consideration was required towards quantum of sentence awarded to accused by the Trial Court---Maintaining the conviction of accused, his sentence was modified from death to imprisonment for life, in circumstances.

Hasil Khan v. The State and others 2012 SCMR 1936 rel.

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

----S. 302---Criminal Procedure Code (V of 1898), Ss.544-A & 382-B---Qatl-i-amd---Appreciation of evidence---Grant of compensation for heirs of the deceased---Trial Court despite holding accused guilty of qatl-i-amd, refused to grant compensation as provided under S.544-A, Cr.P.C., on the ground that the deceased being a criminal record holder, and involved in 32 criminal cases, his legal heirs were not entitled to any compensation---Provision of S.544-A, Cr.P.C., was mandatory in nature, and compensation under said section could not be withheld, unless there were strong reasons for refusal thereof, which must be specifically highlighted---Nothing was available on record, if the deceased was convicted in any criminal case---Mere registration of criminal cases against accused, had not given any licence to anyone to take law into his own hands, and commit his murder---When it was proved on the record, that death of the deceased was at the hands of accused and he was convicted and sentenced, grant of compensation under S.544-A, Cr.P.C. was obligatory---Compensation of Rs.5,00,000 was also granted under S.544-A, Cr.P.C., which if realized, would be paid to the legal heirs of the deceased, as per their legal entitlement, otherwise, accused would undergo simple imprisonment for six months---Benefit of S.382-B, Cr.P.C. was also provided to the accused .

The State v. Rab Nawaz and another PLD 1974 SC 87; Khalid and others v. The State 1975 SCMR 500 and Saeed Shah and others v. The State and others 2005 MLD 389 rel.

Mirza Azeem Baig and Iftikhar Ibrahim Qureshi for Appellant.

Malik Riaz Ahmad Saghla, D.P.G. for the State.

YLR 2017 LAHORE HIGH COURT LAHORE 696 #

2017 Y L R 696

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Syed Shahbaz Ali Rizvi, JJ

MUHAMMAD RAMZAN---Appellant

Versus

The STATE---Respondent

Crl. Appeal No. 226 and Murder Reference No.84 of 2011, heard on 23rd December, 2014.

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

----Ss. 302(b), 324, 459 & 460---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, hurt caused whilst committing lurking house trespass or house breaking, all persons jointly concerned in lurking house trespass or house breaking by night punishable for qatl or hurt caused by one of them---Appreciation of evidence---Benefit of doubt---FIR was lodged against unknown accused persons---Neither the number of the assailants had been given in the crime report nor any specific weapon of offence, allegedly used during the occurrence had been mentioned---Occurrence allegedly had taken place during odd hours of night, but no source of light had been mentioned in the crime report---Accused was implicated in the case on the basis of information given by the tracker, which was a very weak type of evidence and it was not sufficient to pass conviction---No features/description of the body structures of unknown accused having been mentioned by the complainant, test identification parade, would lose its authenticity; and would have no value in the eyes of law---Brother of the complainant who was eye-witness of the occurrence was given up by the prosecution---Adverse inference would be drawn that had he appeared before the court, he ought not have supported the prosecution version---Prosecution case was hit by Art.129(g) of Qanun-e-Shahadat, 1984---No crime empty was taken into possession by the Investigating Officer from the spot---Prosecution having failed to establish its case against accused beyond reasonable doubt, Trial Court was not justified in convicting accused, while basing upon untrustworthy/uncorroborated evidence, which otherwise was full of material contradictions--- Conviction passed by the Trial Court, in circumstances, was against all canons of law recognized for the dispensation of criminal justice---Conviction and sentence recorded by the Trial Court, were set aside, the accused was acquitted of the charge, and was released, in circumstances.

Muhammad Afzal alias Abdullah and others v. The State and others 2009 SCMR 436; Sabir Ali alias Fauji v. The State 2011 SCMR 563; Irshad Ahmed v. The State 2011 SCMR 1190; Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327 and Lal Khan v. The Sttae 2006 SCMR 1846 ref.

(b) Criminal trial---

----Benefit of doubt---Scope---For extending the benefit of doubt in favour of accused, so many circumstances were not required, rather one circumstance which would create reasonable doubt in the veracity of prosecution version, could be taken into consideration for the purpose, not as a matter of grace, but as a matter of right---Court could err in letting off 100 guilty, but should not convict one innocent person on the basis of suspicion.

Riaz Masih alias Mithoo v. The State 1995 SCMR 1730; Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

Ch. Faiz Ahmad Singhairah for Appellant.

Tariq Javed, District Public Prosecutor for the State.

YLR 2017 LAHORE HIGH COURT LAHORE 705 #

2017 Y L R 705

[Lahore]

Before Abdul Sami Khan, J

Mst. GULZARAN BIBI alias SHAMA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.864 and Criminal Revision No.800 of 2013, heard on 11th June, 2015.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Unexplained delay in making arrest---Effect---Delay in post-mortem---Effect---Extra judicial confession---Scope---Benefit of doubt---Motive, absence of---Relevance---Accused was alleged to have murdered her husband by pressing pillow against his face after intoxicating---Trial Court convicted accused under S. 302(b), P.P.C. for qatl-i-amd and sentenced her to undergo life imprisonment and also ordered her to pay compensation to legal heirs of deceased under S. 544-A, Cr.P.C.---Complainant also filed revision for enhancement of sentence of accused from life imprisonment to death---Validity---Examination of dead body, as per statement of medical witness, was conducted with delay of fourteen hours, which showed that occurrence had not taken place at the time mentioned in FIR---FIR had been registered after due deliberations and consultations---No one had, admittedly, seen accused administering intoxicant to deceased or suffocating him with pillow at time of alleged occurrence---Murder of complainant's son was unseen, and case had been registered against accused on mere apprehension of complainant that accused along with unknown persons had murdered his son---No said unknown persons could be produced to support prosecution story---Complainant, who lived thirty kilometers away from place of occurrence, could not give any reason for his presence along with his brother at place and time of occurrence---Complainant's assertion that accused having murdered his son (her husband), remained there right after committing murder, when complainant along with his brother was also present at place of occurrence, did not appeal to prudent mind---Accused was not arrested right after making extra-judicial confession---Accused was arrested after six days of alleged occurrence---Delay in effecting arrest of accused remained unexplained---Another woman was also alleged to have been present at the time of alleged occurrence, but neither she was joined in investigation nor was she produced before Trial Court, and her absence cast doubt in prosecution story---No occasion existed for accused to make extra-judicial confession which carried death penalty---Extra-judicial confession was weak type of evidence---Prosecution by producing evidence to prove extra-judicial confession had tried to improve its case and to entangle accused---Prosecution had presented its case through related, interested and chance witnesses, who all failed to justify truthfulness of their deposition during trial---As per statement of doctor, no mark of violence could be found on body of deceased---Intoxicant tablets recovered during investigation were not found to cause of death of deceased---Medical evidence could not establish that accused was done to death by suffocation---Medical evidence remained unable to establish any conclusive proof regarding cause of death of deceased, and the same could not provide support to prosecution's case---Recovery of intoxicant tablets and pillow allegedly used in commission of offence were effected after eight days of occurrence---Said recoveries made had no nexus with death of deceased, nor had the same provided corroboration to prosecution case---No motive could be brought on record to show as to why accused had killed her husband---Prosecution had failed to prove its case against accused beyond reasonable shadow of doubt---High Court, extending benefit of doubt, acquitted the accused---Revision filed by complainant was dismissed and appeal against conviction was allowed in circumstances.

Irshad Ahmed v. The State 2011 SCMR 1190 and 2009 SCMR 230 rel.

(b) Criminal trial---

----Benefit of doubt---Evidence produced by prosecution should be so strong and solid that it should start right from toe of deceased on one hand and the same should encircle dense grip around neck of accused on other hand---If chain of event is not complete or any doubt which occurs in prosecution's case that is sufficient to demolish structure of evidence, then benefit of doubt must go to accused especially when the same has been built up on basis of feeble or shaky evidence.

----Benefit of doubt--- Only one circum-stance creating doubt in prosecution story is enough to acquit accused.

2009 SCMR 230 rel.

Shahid Nawaz Langrial and Mian Muhammad Ramzan for Appellant.

Irfan Zia, Deputy Prosecutor General for the State.

Usman Naseem for the Complainant.

YLR 2017 LAHORE HIGH COURT LAHORE 724 #

2017 Y L R 724

[Lahore]

Before Abdul Sami Khan, J

SHAUKAT ALI and 2 others---Petitioners

Versus

The STATE---Respondent

Criminal Appeal No.828 and Criminal Revision No.550 of 2008, heard on 16th September, 2015.

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

----Ss. 302(b), 324, 337-A(i), 449 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, causing Shajjah-i-Khafifah, house-trespass in order to commit offence punishable with death, common intention---Appreciation of evidence---Benefit of doubt---Post mortem examination of deceased, was conducted with a delay of eight hours---Time was utilized to think over the matter and then the FIR had been recorded---Witness who had made glaring improvements in his statement before the Trial Court, had lost confidence---Injured prosecution witness had recorded her statement under S.161, Cr.P.C., before Investigating Officer after 18 days of the occurrence and prosecution had failed to advance any reason for such delay---Such belated statement, had no value in the eyes of law and same could not be believed---Statement of said witness was also contrary to medical evidence---Injured victim was a star prosecution witness, who had seen the occurrence, but the injury on the person of said witness, would not mean that she was speaking the truth; possibility could not be ruled out that said witness, in circumstances, could involve innocent person while taking advantage of injury on her person---Credibility of statement of said witness, in circumstances, was not trustworthy to be relied upon---Out of seven accused persons, four had been acquitted by the Trial Court on the same set of evidence by disbelieving the same---Fatal fire-shot, was attributed to co-accused with whom the complainant party had effected compromise, and exonerated him of the charge---By exonerating said accused, the prosecution had itself refuted the story set forth in the FIR---Glaring contradiction had been observed between ocular account and medical evidence---Medical evidence did not support the ocular account---Nothing had been of recovered from accused persons to positively connect them with the commission of alleged offence---Motive, was not proved---Prosecution having failed to prove its case against accused persons beyond reasonable doubt, accused were acquitted extending them benefit of doubt---Sentences of accused having already been suspended, their sureties would stand discharged from their liabilities; and bail bonds, were cancelled, in circumstances.

Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812; Amin Ali and another v. The State 2011 SCMR 323; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221 and 1993 SCMR 550 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation evidence---Benefit of doubt---Evidence produced by prosecution against accused in a murder case carrying death sentence, should be so strong and solid that it should start right from the toe of the deceased on one hand and the same should encircle a dense grip round the neck of accused on the other hand---If any doubt which occurred in the prosecution's case was sufficient to demolish the whole structure of evidence; benefit of doubt must go to accused especially when the same had been built on the basis of feeble or shaky evidence---Not many circumstances creating doubt in the prosecution case were required, but only one circumstance creating doubt in the prosecution case, was enough to acquit accused.

2009 SCMR 230 ref.

Imran Arif Ranjha for Appellants with Appellants in person.

Irfan Zia, Deputy Prosecutor General for the State.

Babar Bilal Awan for the Complainant.

2017 Y L R 794

[Lahore (Multan Bench)]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD SHARIF (deceased) through LRs. and others---Petitioners

Versus

PROVINCE OF PUNJAB through District Collector Layyah and 10 others---Respondents

C.R. No.377-D of 2001, heard on 7th October, 2015.

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

---S. 42---Limitation Act (IX of 1908), Art. 120---Qanun-e-Shahadat (10 of 1984), Art. 129 (g)---Suit for declaration---Limitation---Condonation of delay---Sale---Proof of---Instrument---Attestation of---Procedure---Contention of plaintiffs was that they had purchased the suit land but sale deed could not be incorporated in the revenue record---Suit was decreed by the Trial Court but same was dismissed by the Appellate Court---Validity---No sale deed or copy of mutation had been produced in the court---Plaintiffs had not produced attesting witnesses, identifiers and attesting officer of sale deeds---Stamp vendors and scribes were also not produced by the plaintiffs to prove due execution and attestation of sale deeds---Said witnesses were the best persons to prove the transaction embodied in the sale deeds as well as their execution---When sale deeds had been denied then plaintiffs were bound to prove the same by producing affirmative evidence which had been withheld without any justification---Adverse inference would be drawn against the plaintiffs in circumstances---Initial onus to prove the execution of instrument was upon the plaintiffs who had failed to discharge the same---Attestation of alleged sale deed was a subsequent event but transaction embodied therein must have been effected at some prior point of time---Plaintiffs were bound to prove such transaction by producing cogent and convincing evidence---If any ingredients of sale was missing then beneficiary of the same had to suffer---Plaintiff was bound to plead and prove the ingredients of sale---Plaintiffs had failed to prove the settlement of sale bargain by producing relevant, cogent and convincing evidence---Attestation of disputed sale deed through commission had damaged the case of plaintiffs---Party could not take benefit of the weakness of his adversary and he had to prove his case on his own strength---Any evidence beyond pleadings if led on the record of suit file had to be ignored---Limitation provided by the statute to perform any action or agitate the remedy within specified period was not a mere technicality but it was a mandatory statutory provision and treating same as a formality would tantamount to declare the Limitation Act, 1908 redundant---Delay of each and every day had to be explained by the defaulting party to the satisfaction of court---Delay could not be condoned as a matter of right but arbitrary exercise of discretion would cause prejudice to the opposite party---Suit was time barred---No infirmity or perversity had been pointed out in the impugned judgment and decree passed by the Appellate Court---Revision was dismissed in circumstances.

Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245; Abdul Ghafoor and others v. Mukhtar Ahmed Khan and others 2006 SCMR 1144; Khan Muhamamd v. Muhammad Din through L.Rs. 2010 SCMR 1351; Mst. Hameeda Begum and others v. Mst. Irshad Begum and others 2007 SCMR 996; Rab Nawaz and others v. Ghulam Rasool 2014 SCMR 1181; Sudhangshu Bimal Biswas v. MD. Mustafa Chowdhury 1968 SCMR 213; MD. Anwarullah Mazumdar v. Tamina Bibi and others 1971 SCMR 94; Muhammad Wali Khan and another v. Gul Sarwar Khan and another PLD 2010 SC 965 and Manzoor Afzal Pasha and another v. DHA, Karachi and another 2008 SCMR 877 rel.

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

----S. 42---Limitation Act (IX of 1908), Art. 120---Suit for declaration---Limitation---Six years period for filing a suit for declaration had been provided.

----S. 39---Registration of document when vendor could not appear personally---Procedure---If due to physical infirmity or on account of any other inability executant was not in a position to appear in person before the Registering Officer then vendee would be bound to bring the circumstances due to which vendor could not appear personally by filing an application before the Registrar who after due inquiry could issue commission and delegate his power for attestation of an instrument---Registrar was not authorized in routine to further delegate his powers to a local commission for the attestation of an instrument without assigning any justification.

(d) Administration of justice---

----Party could not take benefit of the weakness of his adversary and he had to prove his case on his own strength.

(e) Evidence---

----Pleadings---Any evidence beyond the pleadings if led had to be ignored.

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

----Preamble---Object---Object of limitation was to help the vigilant and not the indolent.

Rana Akhtar Ali and Ch. Abdul Ghani for Petitioners.

Malik Fazal Hussain for Respondents Nos. 7 to 11.

Muhammad Ali Siddiqui for Respondent No.2.

Mubashir Lateef Gill, A.A.G.

YLR 2017 LAHORE HIGH COURT LAHORE 802 #

2017 Y L R 802

[Lahore]

Before Jawad Hassan, J

TANVEER AZIZ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.433 of 2017, decided on 10th January, 2017.

Family Courts Act (XXXV of 1964)---

----Ss.7, 14(2)(C), 17-A & Sched.---Suit for maintenance---Quantum of maintenance allowance for minor daughter---Scope---Family Court decreed maintenance allowance to minor striking off defence of father in wake of his failure to provide interim maintenance allowance---Record revealed that Family Court proceeded to strike of right of defence, and suit of plaintiffs to the extent of maintenance allowance was decreed under S.17-A of the Family Courts Act, 1964---Father was man of means and had sufficient source of income to meet decreed amount of maintenance which was Rs.5000/- monthly---Even otherwise, it was legal, moral and religious obligation of father to maintain his daughter---Appellate Court had rightly found that in view of amended notification decreed maintenance allowance was not appealable---Constitutional petition was dismissed accordingly.

YLR 2017 LAHORE HIGH COURT LAHORE 827 #

2017 Y L R 827

[Lahore]

Before Jawad Hassan, J

WAHEED ANWAR---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

W.P. No.1042 of 2017, decided on 13th January, 2017.

Family Courts Act (XXXV of 1964)---

----S. 13---Decree for maintenance allowance, execution of---Conditional compromise---Wife withdrew earlier execution petition on basis of conditional compromise---Subsequently husband failed to honour terms of compromise, therefore, his warrants were issued---Husband objected to warrant contending that "once compromise was always a compromise" therefore his warrants should be cancelled---Circumstances demonstrated that decree was not satisfied in letter and spirit, rather parties entered into a compromise on conditional statement of wife i.e. that if husband again deserted her from his house, she reserved the right to re-file execution petition---Judgment-debtor being father of minors and husband of the lady was under legal and moral obligation to maintain them---Judgment and decree was not assailed before appellate court, therefore, it had attained finality and no exception could be taken to that---Executing court could not go beyond the decree---Contention of judgment-debtor that "once compromise was always a compromise" was misconceived and ill-founded because compromise inter se parties was conditional which was revoked by husband/father himself---Constitutional petition was dismissed accordingly.

YLR 2017 LAHORE HIGH COURT LAHORE 837 #

2017 Y L R 837

[Lahore]

Before Jawad Hassan, J

AWAIS AFZAAL---Petitioner

Versus

Mst. SAFIA IRSHAD and others---Respondents

Writ Petition No.402 of 2017, decided on 10th January, 2017.

Family Courts Act (XXXV of 1964)---

----S. 7 & Sched.---Civil Procedure Code (V of 1908), O. IX, R. 9---Certificate of effectiveness of divorce, issuance of---Suit for dissolution of marriage and recovery of maintenance---Family Court passed ex-parte judgment---Husband moved application for setting aside ex-parte decree, whereafter the court directed parties to approach concerned Union Council for arbitration proceedings regarding divorce decree---Husband assailed issuance of certificate of effectiveness of divorce by Union Council contending that he was unheard at both forums---Validity---Record revealed that before issuing said certificate reconciliation proceedings were conducted on different dates for which prescribed notices were issued to husband, hence contention of husband that he had been condemned unheard was not tenable---Wife on every date of proceedings repeatedly stated that there was no chance of reconciliation and flatly refused to live with husband as his wedded wife and asked to issue certificate of divorce in her favour after completion of statutory period of 90 days---Union Council had no option except to issue certificate of divorce in favour of wife---Constitutional petition was dismissed accordingly.

YLR 2017 LAHORE HIGH COURT LAHORE 844 #

2017 Y L R 844

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

Mst. KAMALAN BIBI and others---Petitioners

Versus

RAB NAWAZ and others---Respondents

C.R. No.3625 of 2010, heard on 16th February, 2016.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 54, 55, 56 & 58---Suit for specific performance of contract---Agreement to sell---Proof of---Procedure---Unilateral agreement---Scope---Nothing was on record as to when and in whose presence bargain was settled and consideration amount was paid to the defendant---Scribe or anybody who did not put his signature on the document as attesting witness could not be considered as attesting witness---Copies of non-judicial record could not be received in evidence without the proof of signature/thumb impression and writings of the person alleged to have signed/thumb marked or written the same even if such documents brought on record were accepted without objection---If a party was in possession of some document/evidence in support of his claim but he did not produce the said document/evidence then presumption would be that the evidence not produced and withheld, if was produced, would have gone against his version--- Departmental/tribunal proceedings had presumption of truth but defendant had also a right to rebut the same by raising defence---Even judicial proceedings could be attacked under Art.85 of Qanun-e-Shahadat, 1984---Alleged agreement to sell was unilateral in nature having not been signed by the vendees which was not enforceable under the law---No decree for specific performance could be granted in the present case---Impugned judgments and decrees passed by both the courts below were result of mis-reading and non-reading of evidence---Both the courts below had erred in law while decreeing the suit which could not be sustained---Impugned judgments and decrees passed by both the courts were set aside and suit was dismissed---Revision was allowed in circumstances.

Hafiz Tassaduq Hussain v. Muhammad Din through legal heirs and others PLD 2011 SC 241; Farid Bakhsh v. Jind Wadda and others 2015 SCMR 1044; Muhammad Yousaf Khan v. S.M. Ayub and 2 others PLD 1973 SC 160; Mst. Barkat Bibi v. Muhammad Rafique 1990 SCMR 28; Gulshan Hameed v. Kh. Abdul Rehman 2010 SCMR 334 and Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---High Court could not interfere with the concurrent findings of facts except when there was mis-reading and non-reading of evidence and violation of law.

Nazim ud Din and others v. Sheikh Zia-ul-Qamar and others 2016 SCMR 24 and Ghulam Muhammad and 3 others v. Ghulam Ali 2004 SCMR 1001 rel.

Muhammad Afzal for Petitioners.

Ch. Nazir Ahmad Kamboh for Respondents.

2017 Y L R 942

[Lahore (Multan Bench)]

Before Amin-ud-Din Khan, J

Haji KHAN MUHAMMAD (deceased) through L.Rs. and others---Appellants

Versus

MUHAMMAD USMAN and 2 others---Respondents

R.S.A. No.51 of 2004, heard on 9th September, 2015.

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

----Ss. 12, 42 & 39---Suit for specific performance and cancellation of agreement to sell---Registered document---Proof of---Plaintiffs filed suit for specific performance of agreement to sell whereas defendants instituted suit for declaration and cancellation of said agreement to sell---Defendants failed to produce their evidence in the suit for declaration and cancellation of agreement to sell and their right to produce evidence was closed and suit was decreed by the Trial Court but same was dismissed by the Appellate Court---Suit filed by the defendants for declaration and cancellation of agreement to sell was dismissed concurrently---Validity---Registered document carried presumption of correctness unless the same was disputed---Defendants filed suit for cancellation of documents on the ground that agreement to sell was forged and fictitious one which had been dismissed---Stance of defendants that agreement to sell was forged and fictitious had vanished and presumption of existence attached to the agreement to sell would be in favour of said document---Initial onus was on the defendants who challenged the execution and registration of agreement to sell and thereafter it shifted upon the beneficiaries of said document---When defendants had not produced any evidence then execution of registered agreement to sell could not be thrown out of consideration on the ground that second witness of the same had not been produced---Signatures of the vendors upon the documents seemed to be similar---Findings recorded by the Appellate Court were not sustainable under the law---Impugned judgment and decree passed by the Appellate Court were set aside and that of Trial Court were restored---Second appeal was allowed in circumstances.

(Kalakantharam) Rukmani Ammal v. Ka Ki Ankama Naidu and others AIR 1926 Madras 744 rel.

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

----Arts. 90 & 84---Registration Act (XVI of 1908), Ss. 35, 47 & 60---Registered document---Scope---Registered document had presumption of correctness unless it was disputed.

----S. 12---Agreement to sell---Scope---Agreement to sell was not a document whereby the plaintiff of a suit was the beneficiary because it was reciprocal and both the parties were required to fulfill their part of contract agreed by them.

(d) Evidence---

----When a portion of statement remained unchallenged or the other side failed to rebut that fact then that evidence or statement would be presumed to be admitted one.

Munir Alam and 2 others v. Mehboob Alam 2015 YLR 500 and Muhammad Ashiq Khan v. Muhammad Sharif and 5 others 2014 YLR 767 rel.

Syed Athar Hassan Shah Bukhari for Appellants.

Sajjad Hussain Tangra for Respondents.

YLR 2017 LAHORE HIGH COURT LAHORE 964 #

2017 Y L R 964

[Lahore]

Before Abdul Sami Khan, J

MUHAMMAD RAMZAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.10163-B of 2016, decided on 8th September, 2016.

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

----S. 497--- Bail--- Appreciation of evidence---Scope---Deeper appreciation of evidence at bail stage was not permissible.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 337-A(vi), 337-A(ii), 337-A(i), 337-F(i), 337-L(2), 148 & 149---Qatl-i-amd, causing shajjah-i-damighah, causing shajjah-i-mudihah, causing shajjah-i-khafifah, causing damiyah, causing hurt, rioting armed with deadly weapon, unlawful assembly, common intention---Bail, grant of---Allegation in the FIR was that accused allegedly inflicted blow with iron-rod on the head of injured and also caught hold the brother of complainant whereupon his co-accused had inflicted hatchet blow on his head---Admittedly, accused along with his two brothers had been involved in the case, so possibility could not be ruled out that the complainant had involved the accused petitioner by widening the net, which was common practice---Accused had not caused any injury to the deceased---Vicarious liability of the accused petitioner or his sharing common intention with co-accused for committing murder of the deceased would be determined by the Trial Court after evidence---Accused was previous non-convict---Accused was behind the bars without any fruitful progress in his trial---Investigation had been completed and accused was no more required for investigation---Further incarceration of accused in jail would not serve any purpose---Mere heinousness of offence was no ground to refuse bail to the accused, who otherwise was entitled for the same---Accused was granted bail accordingly.

Mumtaz Hussain and 5 others v. The State 1996 SCMR 1125 rel.

Shahid Azeem for Petitioner.

Rana Shafique, DDPP and Haq Nawaz ASI for the State.

YLR 2017 LAHORE HIGH COURT LAHORE 978 #

2017 Y L R 978

[Lahore (Multan Bench)]

Before Abdul Sami Khan, J

BABAR---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.3571-B of 2016, decided on 2nd May, 2016.

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

----S. 497---Penal Code (XLV of 1860), Ss. 337-A(i),337-A(iii), 337-F(i), 148 & 149---Causing shajjah-i-shafifah, causing shajjah-i-hashimah, causing damiyah, rioting armed with deadly weapon, unlawful assembly, common intention---Bail, grant of---Counter version---Further inquiry---According to FIR, allegation on the accused was that he caused injury on the head of the injured---Admittedly father of the accused got registered cross version against the complainant party---As to who was the aggressor and who was aggressed upon was yet to be determined by the Trial Court after recording material evidence---Attending circumstances bringing the case of accused within the ambit of further inquiry covered by S.497(2), Cr.P.C.---Accused was behind the bars for the last more than ten months and trial had not progressed and there was no chance of its early conclusion---No body could be kept in jail for an indefinite period---Bail had already been granted to the other side---If one party in a case of counter-version, was granted bail, other party would also become entitled to the same---Accused was allowed bail in circumstances.

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

----S. 497(2)---Bail---Counter-versions---Further inquiry---Case in which cross-version had been recorded in the same criminal case such case had become one of further inquiry.

Shahzad Sididque v. The State and another PLD 2009 SC 58 rel.

Mian Subah Sadiq Klason for Petitioner.

YLR 2017 LAHORE HIGH COURT LAHORE 991 #

2017 Y L R 991

[Lahore]

Before Abdul Sami Khan, J

DILDAR alias DILBAR and 6 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 10954-B of 2016, decided on 21st September, 2016.

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

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

----S. 498---Penal Code (XLV of 1860), Ss. 337-A(i), 337-A(ii), 337-F(i), 337-L(2), 452, 148 & 149---Shajjah-i-khafifah, Shajjah-i-madihah, Damiyah, hurt, house trespass after preparation for hurt, assault or wrongful restraint, rioting armed with deadly weapons, unlawful assembly common intention---Pre-arrest bail, grant of---Allegation on the accused persons was that they entered into the premises of complainant party and assaulted thereon---Accused were named in the FIR but no specific role in the commission of offence had been attributed to them---Only general allegation of beating to complainant party was levelled against accused persons---Medico legal certificates about two accused persons were available on record, which prima facie reflected that they had also sustained injuries during the occurrence but such fact had been suppressed by the complainant in FIR---Circumstances suggested that story narrated by the complainant in FIR was dubious---Trial Court was yet to determine as to which party was aggressor and which party had been aggressed upon---Applicability of 452, P.P.C. would be determined by the Trial Court at appropriate stage---Accused was allowed pre-arrest bail accordingly.

----S. 498---Penal Code (XLV of 1860), Ss. 337-A(i), 337-A(ii), 337-F(i), 337-L(2), 452, 148 & 149---Shajjah-i-khafifah, Shajjah-i-madihah, Damiyah, hurt, house trespass after preparation for hurt, assault or wrongful restraint, rioting armed with deadly weapons, unlawful assembly common intention---Pre-arrest bail, grant of---Record had shown that accused were previous non-convict; they were not hardened, dangerous, desperate criminals and had not committed the alleged offence on the pretext of honour---Section 337-N(2), P.P.C. would apply to the case of accused---Vicarious liability of the accused persons in the commission of alleged offence would be determined by Trial Court after evidence---Accused, had joined the investigation, which was completed to their extent---No useful purpose would be served by sending accused persons behind the bars---Accused were allowed pre-arrest bail accordingly.

2014 SCMR 1349 rel.

Muhammad Tariq Bashir for Petitioners with Petitioner in person.

Irfan Zia, Deputy Prosecutor General for the State and Allah Ditta SI with record.

YLR 2017 LAHORE HIGH COURT LAHORE 1005 #

2017 Y L R 1005

[Lahore (Multan Bench)]

Before Mehmood Maqbool Bajwa and Mushtaq Ahmad Tarar, JJ

SHAHZAD KHAN KHAKWANI---Appellant

Versus

BEGUM SHAMIM M.K. KHAKWANI through Muhammad Younus Durrani and another---Respondents

R.F.A. No.85 of 2015, heard on 28th January, 2016.

Limitation Act (IX of 1908)---

----Art. 113---Specific Relief Act (I of 1877), S.12---Suit for specific performance of contract---Limitation, commencement of---Suit for specific performance of contract could be instituted within a period of 3-years---If date was fixed for performance of contract, time shall be computed from the date mentioned; if no date had been fixed, time shall be reckoned from the date when plaintiff had notice regarding refusal of performance by the proposed vendor---No date was fixed for specific performance of the contract and as such second part of Art. 113 of the First Schedule of the Act was attracted to the facts of the present case.

Malik Muhammad Tariq Rajwana for Appellant.

Malik Masroor Haider Usman for Respondent No.1.

YLR 2017 LAHORE HIGH COURT LAHORE 1020 #

2017 Y L R 1020

[Lahore]

Before Ali Akbar Qureshi, J

Mst. MEHTAB BIBI---Petitioner

Versus

KHADIM HUSSAIN through L.Rs. and another---Respondents

C.R. No.4650 of 2015, heard on 4th April, 2016.

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

----S. 42---Suit for declaration---Inheritance---Oral gift---Ingredients---Proof---Procedure---Pardanasheen lady---Contention of plaintiff was that gift mutation was based on fraud---Suit was dismissed concurrently--- Validity---Nothing was on record as to when, where and in whose presence alleged oral gift was made---Defendants were required to prove the transaction of oral gift independently irrespective of execution of gift mutation---Defendants had failed to prove oral gift and its ingredients through any independent and confidence inspiring evidence---No official from revenue side was produced to prove the scribe and signatory of alleged gift mutation which was mandatory under the law---Plaintiff had not gifted her share of land in favour of her brothers and her thumb impression was obtained by playing fraud and misrepresentation---Donor was an illiterate and Pardanasheen lady and was completely ignorant with regard to transaction of gift mutation---No family member of plaintiff was accompanying her when the alleged gift mutation was attested---Alleged gift mutation was dubious and liable to be set aside---Courts below had decided the lis on the basis of surmises and conjectures---Impugned judgments and decrees passed by both the courts below were set aside and suit was decreed---Revision was allowed in circumstances.

Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Ghulam Zainab and another v. Said Rasool 2004 CLC 33; Ghulam Muhammad and another v. Muhammad Ramzan through L.Rs. 2007 MLD 1769; Muhammad Asghar and others v. Hakam Bibi through L.Rs. and others 2015 CLC 719 and Mian Allah Ditta through L.Rs. v. Mst. Sakina Bibi 2013 SCMR 868 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---If courts below had acted with material irregularity and legal infirmity, High Court could take cognizance of the matter.

Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568 and Muhammad Nawaz alias Nawaza and others v. Member Judicial, Board of Revenue and others 2014 SCMR 914 rel.

Nafeer Ahmad Malik for Petitioner.

Nemo for Respondents.

YLR 2017 LAHORE HIGH COURT LAHORE 1036 #

2017 Y L R 1036

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD BASHIR---Petitioner

Versus

KHAIR DIN and 20 others---Respondents

W.P. No.1572 of 2011, decided on 26th October, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 200, 204 & 403---Private-complaint was admitted for regular hearing by the Trial Court but Appellate Court dismissed the same---Validity---Claim of complainant was not supported by any documentary evidence---Contention of complainant was found false during the course of investigation of FIR-case registered against the accused---Complainant had failed to produce any incriminating evidence against the accused which led to cancellation of FIR-case by the area Magistrate--- Private-complaint subsequently brought by the complainant could not be dismissed merely on the ground that on the very cause of action his case lodged through FIR had failed the test of investigation---Private-complaint would proceed independently on its own merits---Summonses or warrants should not be issued for causing the accused to be brought or to appear before the court in every FIR-case or a private-complaint-case---Impugned order had been passed in accordance with law---No illegality had been pointed out by the complainant in the impugned order passed by the Appellate Court---Constitutional petition was dismissed in circumstances.

Ch. Umair Ahmad for Petitioner.

Raza-ul-Karim Butt, Additional Advocate General Punjab for the State.

YLR 2017 LAHORE HIGH COURT LAHORE 1042 #

2017 Y L R 1042

[Lahore]

Before Shahid Hameed Dar, J

ABID HUSSAIN BHATTI---Petitioner

Versus

The STATE and another---Respondents

Crl. Revision No.382 of 2016, decided on 25th March, 2016.

Penal Code (XLV of 1860)---

----Ss.302 & 324---Criminal Procedure Code (V of 1898), S. 540---Qatl-i-amd and attempt to qatl-i-amd---Application of summoning prosecution witness---Petitioner, who was indicted for qatl-i-amd and attempt to commit qatl-i-amd, moved application under S.540, Cr.P.C., to re-summon and re-examine the injured/ prosecution witness---Said application was dismissed by the Trial Court---Said witness had got her statement recorded and also faced the process of cross-examination---Defence counsel had used every bit of his intellect to cross-examine the said female witness---Counsel for the petitioner had made a queer argument that cross-examination on the said witness was completed, which could not be considered plenteous nor did it show an ideal approach to interview an eye-witness---Section 540 of the Criminal Procedure Code, 1898 did not ingrain any such interpretation whereby it should be allowed to be used by a party to fill-in the lacunae of its case or to unnecessarily protract proceedings of the trial to defeat the ends of justice---Revision petition was dismissed in circumstances.

YLR 2017 LAHORE HIGH COURT LAHORE 1046 #

2017 Y L R 1046

[Lahore (Rawalpindi Bench)]

Before Amin-ud-Din Khan and Masud Abid Naqvi, JJ

KHALIL---Appellant

Versus

SHARAFUDDIN MUSLEH SHAMI through Legal heirs and 3 others---Respondents

R.F.A. No.158 of 2012, heard on 24th March, 2016.

Specific Relief Act (I of 1877)---

----S. 12---Contract Act (IX of 1872), S.55---Suit for specific performance of contract---Time essence of contract---Scope---Plaintiff filed suit for specific performance of contract on the basis of agreement to sell which was dismissed by Trial Court---Validity---Plaintiff had not paid a single penny at the time of agreement nor at the date fixed for performance of his part---No hurdle existed for performance of agreement on the last date for performance of agreement---Agreement to sell was defective being not signed by one of the alleged sellers and share of said seller was not specifically mentioned in the agreement---Time was essence of contract in circumstances---Plaintiff had withdrawn the amount deposited by him in the Trial Court, without permission of the court---Conduct of plaintiff did not entitle him to discretionary relief of specific performance---Appeal was dismissed accordingly.

Tanveer Iqbal for Appellant.

Ch. Tajamul Murad for Respondents.

YLR 2017 LAHORE HIGH COURT LAHORE 1060 #

2017 Y L R 1060

[Lahore (Rawalpindi Bench)]

Before Amin-ud-Din Khan, J

Mst. BILQEES BEGUM through L.Rs. and 5 others----Petitioners

Versus

Mst. NAZAKAT BIBI and others---Respondents

C.R. No.413 of 2010, heard on 10th March, 2016.

Civil Procedure Code (V of 1908)---

----O. XXIII, R. 3---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Compromise---Scope---Matter was resolved between the parties and compromise deed was executed---Suit was dismissed on the ground that parties might execute compromise by having recourse to the revenue department---Validity---Settlement and compromise between the parties had been recorded---Suit was liable to be decreed according to the compromise---Property which was subject matter of compromise was part of suit land---If the property which was not the suit property was included, in the compromise, in that case the court could only record compromise but could not pass a decree, or if the court record the compromise, that part of the compromise could not be executed through the court---Defendants had stated that suit to the extent of matter settled between the parties be decreed in favour of plaintiffs but the suit was dismissed---Impugned judgments and decrees were against the law and were not sustainable which were set aside---Suit of plaintiffs in accordance with the compromise was decreed in their favour---Revision was allowed.

Peer Dil and others v. Dad Muhammad 2009 SCMR 1268; Shah Rasool and others v. Maulana Ghulam Rahim and others 2015 YLR 89; Ch. Muhammad Saleem v. Additional District Judge Sahiwal and 2 others 2009 YLR 1621; Ghazala Tehsin Zohra v. Mehr Ghulam Dastagir Khan and another PLD 2015 SC 327; Ahmed Nawaz v. Haji Allah Ditta PLD 2002 Lah. 10; Noor Muhammad and others v. Mst. Azmat-e-Bibi 2012 SCMR 1373; Mst. Asma Naz v. Muhammad Younas Qureshi 2005 SCMR 401; Munir Ahmad and 6 others v. Muhammad Saddique 2005 MLD 364; Moulvi Muhammad Azeem v. Alhaj Mehmood Khan Bangish and another 2010 SCMR 817; Mohsin Saleem and another v. The State 2006 PCr.LJ 969 and Muhammad Nazir and others v. Ali Muhammad through Legal Heirs and others 2003 SCMR 1183 distinguished.

Sheikh Ghulam Qasim through Legal heirs and others v. Abdullah Khan and others 2011 YLR 1357; Noor Muhammad and others v. Khan Muhammad and others 2010 YLR 984; Messrs Orient Occident (Pvt.) Ltd. through Director and others v. Messrs Upaza Commercial Enterprises through Proprietor and others 2007 MLD 1374 and Shaukat Habib and 5 others v. Raja Muhammad Bashir and another 2004 YLR 1775 rel.

Imran Hassan Ali for Petitioners.

Tariq Mehmood Qutab for Respondents.

YLR 2017 LAHORE HIGH COURT LAHORE 1076 #

2017 Y L R 1076

[Lahore]

Before Mazhar Iqbal Sidhu, J

SHAHID MEHMOOD CH.----Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.9155-B of 2016, decided on 22nd September, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 379, 411, 201 & 34---Qatl-i-amd, theft, dishonestly receiving stolen property, causing disappearance evidence of offence, common intention---Bail, refusal of---Unwitnessed crime---Allegation against the accused was that he along with co-accused had committed murder---Case of prosecution revolved around circumstantial evidence, starting with the allegation that complainant lastly talked to deceased on cell phone which belonged to the accused---Accused was identified by the prosecution witnesses through the test-identification parade---Mobile telephone set and motor bike of deceased were recovered on the disclosure of accused---Accused pointed out the place where dead body of deceased was thrown---All ex-post facto evidence connected the accused with the commission of offence---Offence fell within the prohibitory clause of S. 497, Cr.P.C.---Accused was refused bail in circumstances.

Azam Nazir Tarar and Mazhar Ali Ghallu for Petitioner.

Aftab Ahmad Bajwah and Shahzad Saleem Warriach for the Complainant.

YLR 2017 LAHORE HIGH COURT LAHORE 1087 #

2017 Y L R 1087

[Lahore]

Before Abid Aziz Sheikh, J

Syed MUHAMMAD ALI---Petitioner

Versus

LAHORE DEVELOPMENT AUTHORITY through Director General and 3 others---Respondents

W.P. No.29332 of 2015, heard on 9th November, 2016.

(a) Interpretation of statutes---

----Retrospective effect---Principle---Policy decisions by Executives unless beneficial, cannot be applied retrospectively---In absence of stipulation to the contrary any change in law effecting substantive rights has to have prospective effect.

F.B Ali v. State PLD 1975 SC 506; Sutlej Cotton Mills Ltd. v. Industrial Court PLD 1966 SC 472; Shohrat Bano v. Ismail 1968 SCMR 574; Garikapati v. Subbiah Chaudhry AIR 1957 SC 540; P.I.A Corporation v. Pak Saaf Dry Cleaners PLD 1981 SC 553; Nazir Begum v. Qamarunnisa 1982 CLC 2271; Muhammad Ibrahim v. Surrayiaun Nisa PLD 1992 SC 637; Mian Rafi-ud-Din v. Chief Settlement and Rehabilitation Commissioner PLD 1971 SC 252; Nagina Silk Mill, Lyallpur v. The Income Tax Officer and others PLD 1963 SC 322; Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; Nabi Ahmed and others v. Home Secretary, Government of West Pakistan and others PLD 1969 SC 599; Province of East Pakistan v. Sharafatullah and others PLD 1979 SC 514; Sona and others v. The State and others PLD 1970 SC 264; Hassan and others v. Fancy Foundation PLD 1975 SC 1; The Collector Customs and others v. Messrs Rais Khan Limited through Muhammad Hashim 1996 SCMR 83; Malik Gul Hasan and others v. Allied Bank of Pakistan 1996 SCMR 237; Manzoor Ali and others v. United Bank Limited 2005 SCMR 1785; Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. 2009 PTD 1392; Muhammad Tariq Badar and others v. NBP and others 2013 SCMR 314 and Badshah Gul Wazir v. Government of K.P.K. and others 2015 SCMR 43 ref.

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

----S.23---Acquisition of land---Compensation---Grievance of petitioner was that authorities acquired his land and were supposed to give a plot in lieu thereof---Authorities did not deny entitlement of petitioners but due to change in law, they were ready to pay compensation equal to the value of plot at the time of acquisition of land---Validity---Authorities were bound to give alternative plot in lieu of exempt plot to petitioner and other legal heirs of petitioner's father against the land acquired---In case there was no alternative vacant plot available, then they were entitled to cash compensation as per current market value of the plot---High Court directed the authorities to allot alternative plot to petitioner and other legal heirs of petitioner's father in lieu of the plot of the same value and measurement/description or as an alternative pay cash compensation at current market rate of plot---Constitutional petition was allowed in circumstances.

----S. 23---Market value---Determination---Principle---Market value is the price that a willing purchaser would pay to a willing buyer in an open market arms-length transaction entered into without any compulsion---Such determination must be objective rather than subjective and while undertaking such exercise, contemporaneous transactions of the same adjoining or adjacent land may be taken into account.

Province of Punjab through Land Acquisition Collector and another v. Begum Aziza 2014 SCMR 75 and Land Acquisition Collector, G.S.C, N.T.D.C (WAPDA), Lahore and another v. Mst. Surraya Mehmood Jan 2015 SCMR 28 ref.

Sana Ullah Khan for Petitioner.

Hammad Raza for Respondents.

YLR 2017 LAHORE HIGH COURT LAHORE 1138 #

2017 Y L R 1138

[Lahore]

Before Miss Aalia Neelum, J

AKMAL---Appellant

Versus

The STATE and others---Respondents

Crl. Appeal No.55 of 2009 and Crl. Revision No.348 of 2008, heard on 13th October, 2016.

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

----Ss. 302(b), 109 & 34---Criminal Procedure Code (V of 1898), S. 154---Qatl-i-amd, abetment and common intention---Appreciation of evidence---Delay in lodging FIR---Consultation and deliberation---Record showed that in the inquest report, prepared by the Investigating Officer in the hospital, neither the name of complainant was mentioned nor signed by any witness despite the fact that complainant and witness were present there---Distance between the police station and place of occurrence was six miles, whereas complainant consumed four hours for reaching the police station for reporting the incident---FIR was lodged by the complainant after considerable delay of four hours---Police officer was present in the hospital but no complaint was lodged by the complainant---FIR was not lodged till the inquest proceedings were over at the hospital by the Investigating Officer, which would seriously and adversely affect the prosecution story---Said circumstances were sufficient to create serious doubt about the prosecution story, so no reliance could be placed thereon to establish the guilt of the accused---Conviction and sentences recorded by Trial Court were set aside in circumstances.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment and common intention---Appreciation of evidence---Ocular account did not corroborate medical evidence---Scope---Allegation against accused was that he made fire shot with his .12-bore gun on deceased, which landed at his abdomen---Ocular account was furnished by complainant and a witness---Statement of said witnesses showed that deceased received fire arm injuries and he was shifted to the hospital at "H" but the doctor referred the injured to hospital at "L" due to his serious condition---Injured succumbed to the injuries on the way and dead body of deceased was brought back to the hospital at "H'' for post-mortem---Statement of Medical Officer and Medico-Legal Certificate of deceased showed that deceased had gone through surgery and he was kept under observation---Statements of both the witnesses were in conflict with medical evidence on material points---Draftsman stated that on the pointing of prosecution witnesses scaled site plan was prepared which showed that accused had fired on deceased from the distance of 20 feet but medical officer/witness had observed that possibility could not be ruled out that distance between assailant and deceased would be 2-4 feet---Evidence produced by the prosecution, in the form of site plan and testimony of draftsman did not support firing from such a close range---Circumstances established that witnesses were not confidence inspiring and their evidence was found to be in conflict and contradiction with the medical evidence---Prosecution, in circumstances, could not prove its case beyond reasonable doubt benefit of which would resolve in favour of accused---Conviction and sentences awarded by the Trial Court were set-aside in circumstances.

----Ss. 302 (b) 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Interested witness---Testimony of closely related witness---Reliance---Scope---Complainant was father of deceased and deceased was real maternal nephew of a witness---Prosecution witnesses were not only closely related to the deceased but were also inimical towards accused---Said witnesses had reasons to falsely implicate the accused---No independent piece of evidence was available in the case, to corroborate the evidence of the interested witnesses---Conviction and sentence awarded by Trial Court were set-aside in circumstances.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Motive not proved---Effect---Motive was double edged sword, which cut both ways---In the present case, existence of enmity between the complainant and accused had not been disputed as hot words were exchanged between accused and deceased a day before the occurrence---Complainant had not reported the matter to the police about the alleged altercation---Investigating Officer had observed that alleged version of complainant about altercation was found not correct---Concocted story of motive part appeared to have been cooked up and the same could not be believed only on the basis of oral statement of the complainant---Circumstances established that prosecution had failed to prove motive part of the occurrence---Conviction and sentence recorded against accused was set aside in circumstances.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Recovery of .12-bore shot gun at the instance of accused was effected---Report of Forensic Science Laboratory showed that crime empties recovered from the place of occurrence was received in the office after more than 60 days of its recovery and shot gun was received in the office after 14 days of its recovery---No explanation was available for not sending the crime empties and weapon of offence earlier thus positive report of Forensic Science Laboratory became inconsequential---Conviction and sentences recorded by Trial Court were set-aside in circumstances.

Imran Arif Ranjha for Appellant.

Muhammad Akhlaq, Deputy Prosecutor General for the State.

Syed Ijaz Qutab and Ali Zain for the Complainant.

YLR 2017 LAHORE HIGH COURT LAHORE 1170 #

2017 Y L R 1170

[Lahore (Rawalpindi Bench)]

Before Amin-ud-Din Khan and Masud Abid Naqvi, JJ

GULZAR KHAN and 2 others---Appellants

Versus

ROSHAN KHAN and 10 others---Respondents

R.F.A. No.183 of 2014, heard on 6th April, 2016.

Specific Relief Act (I of 1877)---

----Ss. 42 & 39---Suit for declaration, possession and cancellation of documents---Contention of plaintiffs was that order for transfer of property in favour of defendants issued by the department was forged and fictitious---Suit was decreed by the Trial Court---Validity---Trial Court had no jurisdiction to cancel document of transfer only on the basis that there were some procedural deviations committed by the department while issuing the transfer order---If applicant (for transfer of property) had passed away during the pendency of process of transfer of property then transfer in her favour could not be declared to be null and void as after her death her legal heirs would be entitled to inherit the same in accordance with law---Suit property was in the possession of defendants (legal heirs of transferee)---Findings recorded by the Trial Court were reversed---Impugned judgment and decree passed by the Trial Court were set aside---Appeal was allowed in circumstances.

Faizuddin Ahmad v. Muhammad Yousaf and another 1988 SCMR 1289 and Mst. Aziz Bibi v. Karam Din and others 1995 MLD 1121 rel.

Rizwan Akhtar Awan for Appellants.

Sardar Abdul Aziz Khan Chandio for Respondents.

YLR 2017 LAHORE HIGH COURT LAHORE 1196 #

2017 Y L R 1196

[Lahore (Multan Bench)]

Before Qazi Muhammad Amin Ahmed and Ch. Mushtaq Ahmad, JJ

BASHIR AHMAD---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 307 of 2011, Murder Reference No.179 and P.S.L.A. No.84 of 2010, decided on 27th September, 2016.

Penal Code (XLV of 1860)---

----Ss. 302 & 449---Qatl-i-amd, house trespass in order to commit offence punishable with death---Appreciation of evidence---Complainant had alleged that accused gave several hatchet blows on the body of deceased---Motive was deceased's second marriage---Complainant was not properly confronted by the defense counsel---Names of acquitted co-accused and eye-witnesses were not mentioned in the complaint---Private complaint was instituted after five months of occurrence---Second wife of deceased gave time of occurrence 3:00 A.M. instead of 8:00 A.M. and also omitted to nominate accused (present appellant), however nominated him when cross-examined by her own counsel---Complaint was duly thumb marked by complainant who could not circumvent its details through a belated assertion that it was not recorded faithfully and for the same reason testimony of ocular account was liable to be rejected---Alleged motive was not proved by the prosecution---Recovery of hatchet without positive forensic report remained inconsequential---Murder reference was answered in negative---Conviction was set aside and appeal was allowed.

Ch. Salamat Ali Wains and Malik Imtiaz Haider for Appellants.

Syed Jafar Tayyar Bukhari for the Complainant.

Malik Riaz Ahmad Saghla, Deputy Prosecutor General, Punjab for the State.

YLR 2017 LAHORE HIGH COURT LAHORE 1217 #

2017 Y L R 1217

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

QADEER AHMAD---Petitioner

Versus

EJAZ AHMAD through L.Rs. and others---Respondents

C.M. No.1/C of 2016 and C.R. No.3616 of 2014, heard on 21st October, 2016.

(a) Partition Act (IV of 1893)---

----S. 4---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for possession through partition---Rejection of plaint---Principle---Suit was dismissed on the ground that no proof of ownership of commercial property could be brought on record and rest of the property was agricultural in nature---Validity---When most of the properties were of residential/commercial nature, Civil Court being the court of ultimate jurisdiction was the sole forum to decide the lis brought before it---If suit qua the cluster of properties was instituted before the Civil Court which possessed the jurisdiction in respect of any of the said properties, court, to the extent of other properties regarding which it had no jurisdiction could adjudicate upon being court of ultimate jurisdiction---Plaint could not be rejected or returned in piecemeal, it could only be rejected if all reliefs claimed were barred under the law---Most of the properties involved in the present case were residential/commercial and among those if any of the property was found to be agricultural falling in the joint holding of the parties requiring partition, then plaint to such extent could neither be partially rejected/returned nor suit could be dismissed on said score---Courts below had erroneously non-suited the plaintiff---Impugned judgments and decrees were nullity in the eye of law which were set aside---Case was remanded to the Trial Court for decision afresh on merits within a period of four months---Revision was allowed in circumstances.

(b) Admission---

----Scope---Admission which was wrong in point of fact or was made in ignorance of legal right had no binding effect on party to lis even if it was made by an expert during the course of argument before a court of law.

Ahmad Khan v. Rasul Shah and others PLD 1975 SC 311 rel.

Ch. Inayat Ullah for Petitioner.

Shezada Mazhar for Respondents.

YLR 2017 LAHORE HIGH COURT LAHORE 1229 #

2017 Y L R 1229

[Lahore]

Before Jawad Hassan, J

MOHAMMAD MOHSIN---Petitioner

Versus

FEDERAL GOVERNMENT and 3 others---Respondents

W.P. No.2543 of 2017, decided on 10th February, 2017.

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

----Ss. 12 & 25---Parental jurisdiction of guardian court---Scope---Father sought direction of High Court to place name of his son/minor on Exit Control List (ECL) to ensure minor not to leave territorial jurisdiction of High Court---Mother raised objection on maintainability of constitutional petition and contended that the matter was already sub judice before Guardian Court who had parental jurisdiction for the matter in hand---Validity---Record revealed that father himself had admitted that he had already filed petition under S. 25 of the Guardians and Wards Act, 1890 for the custody of the minor in which the Guardian Court had restrained the mother to remove the minor from the territorial jurisdiction of the court without prior permission---Guardian Court had also directed the mother to produce the minor along with his passport before the Guardian Court---Record also depicted that, with the mutual consent of the parties before the Guardian Judge, a meeting of father/petitioner was arranged with the minor in presence of Bailiff by the Guardian Court---Appearance of the parties with consent before the Guardian Court, due to which the father/petitioner had met the minor and had also obtained order for staying the guardianship of minor pursuant to the filing of constitutional petition, prime facie showed that there was no apprehension of removing the minor out of country---High Court observed that Guardian Court, who was seized of the matter, shall decide all pending applications of the parties and pass appropriate orders in accordance with law---Constitutional petition was dismissed accordingly.

Sardar Hussain and others v. Mst. Parveen Umer and others PLD 2004 SC 357 ref.

Syeda Maqsooma Zahra Bokhari and Tahir Mahmood Mughal for Petitioner.

Sardar Kaleem Ilyas and Muhammad Asfand Yar Waraich for Respondents Nos. 3 and 4.

Ms. Sadia Malik, Standing Counsel.

YLR 2017 LAHORE HIGH COURT LAHORE 1246 #

2017 Y L R 1246

[Lahore]

Before Ayesha A. Malik and Jawad Hassan, JJ

ALI RAZA---Appellant

Versus

VICE CHANCELLOR/CHAIRMAN ADMISSION COMMITTEE and another---Respondents

Intra Court Appeal No.1803 of 2016, decided on 6th February, 2017.

Educational institution---

----Admission--- Entry test--- Additional marks for Hafiz-e-Quran, entitlement to---Candidate contended that his certificate of Hafiz-e-Quran was from registered institute and that he recited all the asked verses of Holly Quran before Admission Committee of the university---University contended that the candidate had failed to qualify for the grant of additional marks---Validity---Prospectus of university revealed that the committee would conduct a structured test of the candidates who claimed to be Hafiz-e-Quran and in pursuance of which he underwent the said test---Test sheet produced by the university clearly showed that the candidate could not answer even a single question---Prospectus also mentioned that decision of the committee was to be final---Committee constituted for the purpose had declared the petitioner as failed, therefore, he could not be held to be entitled for additional marks---High Court under its constitutional jurisdiction, could not issue direction to university to add marks to the entry test---Constitutional petition was dismissed accordingly.

Muhammad Ibrahim and Muhammad Sajjad Naeem Mohal for Appellant.

Imran Muhammad Sarwar for Respondents.

YLR 2017 LAHORE HIGH COURT LAHORE 1249 #

2017 Y L R 1249

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

MOHAMMAD HUSSAIN---Petitioner

Versus

ALLAH DITTA---Respondent

Civil Revision No.1790 of 2009, heard on 20th October, 2016.

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

----S.42---Suit for declaration---Oral sale---Ingredients---Mutation of oral sale--- Proof---Requirements and procedure--- Rapt roznamcha--- Scope--- Contention of plaintiff was that sale mutation was result of fraud and misrepresentation---Suit was dismissed concurrently---Validity---Entries in the mutation had no presumption of correctness prior to incorporation in the record-of-rights---Such entries were admissible in evidence but these required to be proved by the person relying upon it independently through affirmative evidence---Oral transaction reflected in mutation entries neither conferred the title in favour of its beneficiary nor could establish the same---When plaintiff had made statement on oath and alleged commission of fraud in attestation of mutation and denied the transaction reflected therein then onus would shift upon its beneficiary to prove the valid attestation as well as transaction embodied therein---When any witness of mutation had died, beneficiary would be bound to produce any person familiar to his thumb impression to verify it on the disputed mutation---Defendant had failed to prove the payment of sale price to the plaintiff---If payment of consideration of alleged sale had not been proved on record, there could be no sale in the eye of law---Defendant had not been able to establish on record the essential elements of valid sale---If any of the ingredients of sale was missing then vendee had to suffer---Vendee had failed to produce Revenue Officer who attested the mutation in his favour---Best evidence had been withheld by the defendant---Revenue Officer was the best person who could prove the valid attestation of mutation---Party knowing whole circumstance of the case should give evidence on his behalf and to submit for cross-examination---Vendee's non-appearance in the witness box would be possible circumstance going to discredit the truth of his version---Defendant by not appearing in the witness box had failed to discharge the onus shifted on him---Non-appearance of vendee before the Court had created doubts with regard to attestation of oral sale mutation---Statement of special attorney was liable to be ignored as he was neither witness of sale mutation nor any bargain was finalized before him---Plaintiff having affixed his thumb impression on a revenue paper could not be considered sufficient to declare that the same was obtained for attestation for oral sale mutation---Rapt roznamcha did not bear signatures of alleged vendor or vendee which was a requirement of law---Rapt roznamcha had no presumption of truth unless and until its maker was produced to prove the same---Vendee had failed to prove recording of event of sale in the register roznamcha waqiati, attestation of oral sale mutation as well as transaction of sale---Findings recorded by the courts below were result of mis-reading and non-reading of evidence which were set aside---Suit was decreed---Revision was allowed in circumstances.

Mst. Hameeda Begum and others v. Mst. Irshad Begum and others 2007 SCMR 996; Khan Muhammad v. Muhammad Din through L.Rs. 2010 SCMR 1351; Feroze Khan and others v. Mst.Waziran Bibi 1987 SCMR 1647; Roshan Din and others v. Abdul Qayum and others PLD 1979 SC 890; Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1959 Pesh. 81; Abdul Hameed v. Mst. Aisha Bibi and another 2007 SCMR 1808; Mst. Raj Bibi and others v. Province of Punjab through District Collector Okara and 5 others 2001 SCMR 1591; Messrs Islamabad Farming Cooperative Society and others v. Ghulam Abbas Khan and others 2011 SCMR 153; Shahid and 2 others v. The State and others 1996 SCMR 1386 and Zulfiqar and others v. Shahadat Khan PLD 2007 SC 582 rel.

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

----S. 42---Mutation---Purpose---Mutation was sanctioned through summary proceedings intended to keep the record update for the collection of land revenue.

----S. 115---Revisional jurisdiction of High Court---Scope---High Court could not interfere with concurrent findings of fact unless same were based on mis-reading or non-reading of evidence.

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.

Iqbal Ahmad Malik for Petitioner.

Ch. Tanvir Ahmad Hinjra for Respondent.

YLR 2017 LAHORE HIGH COURT LAHORE 1263 #

2017 Y L R 1263

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi, J

AMAN ULLAH---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.2413-B of 2016, decided on 17th February, 2017.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 337-F(v) & 34---Qatl-i-amd, hashimah, common intention---Bail, grant of---Further inquiry---Allegation in the FIR that two unknown persons, while riding on motorcycle made straight fire shots with pistol on complainant party, resultantly, one person died and the other received injuries---Accused were not named in FIR---Accused was apprehended by the police under S. 54, Cr.P.C. after four months of the occurrence---On the disclosure of accused before the police, it transpired that it was the case of robbery---Accused was sent to jail and identification parade was conducted---Accused was identified by the prosecution witnesses---Role attributed to the accused was that he was driving the motorcycle but no motorcycle was recovered during the physical remand---Pistol was recovered from the accused, which was not much helpful to the prosecution as prosecution witnesses had not received injuries at the hands of the accused---Accused pointed out some illegalities and contradictions in the proceedings of the identification parade as the same was conducted after the delay of four months---Said plea of accused would be appreciated by the Trial Court after recording evidence---No other evidence was available on record against the accused---Complicity of accused was necessarily a case of further inquiry as he had not caused any injury to the complainant as well as other prosecution witness---Accused had no previous antecedents in his record---Investigation to the extent of accused petitioner had been completed and he was no more required for physical custody---Accused petitioner produced his medical history, which reflected that only one kidney of him was functioning---Accused had got chronic kidney disease with urinary divergent and repeated consultation and care of neurologist was required---Sufficient reasons existed to believe that the case of accused called for further inquiry into his guilt as contemplated in S.497(2), Cr.P.C.---Accused was allowed bail in circumstances.

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

----S. 497---Bail, grant of---Heinousness of offence---Effect---Mere heinousness of offence was no ground to decline bail after arrest to an accused who was otherwise entitled for the concession of bail.

Tariq Bashir v. The State PLD 1995 SC 34 rel.

----S. 497--- Bail--- Appreciation of evidence---Scope---Deeper appreciation or evaluation of evidence at bail stage was neither desirable nor permissible and only tentative assessment could be made.

Zaigham Ashraf v. The State and another 2016 SCMR 18 rel.

Ghufran Khursheed Imtiazi for Petitioner.

Sh. Istijabit Ali, D.P.G. with Babar, S.I. for the State.

YLR 2017 LAHORE HIGH COURT LAHORE 1274 #

2017 Y L R 1274

[Lahore]

Before Ch. Abdul Aziz, J

ZAHID alias ZAHDI---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.17108-B of 2016, decided on 16th January, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324, 109 & 34---Attempt to commit qatl-i-amd, abetment, common intention---Bail, grant of---Further inquiry---Complainant had alleged that accused while armed with a pistol, fired at injured and caused injury on his right ankle---Delayed FIR showed that no explanation, whatsoever, was mentioned therein about delay in reporting the matter to police---Accused never tried to inflict injury on vital part of the body of the injured---Such aspect of case reflected that accused had no intention to commit murder of injured---Intention to cause death or knowledge that death was likely to be caused had to be established even at bail stage which could not be proved through some presumption---Case of accused was found to be within the provision of S. 497(2)---Bail was granted accordingly.

Nosherwan alias Nosha v. The State 1994 PCr.LJ 1476 and Muhammad Afzal v. The State 2008 PCr.LJ 1352 rel.

Muhammad Ajmal Adil for Petitioner.

Asim Fareed for the Complainant.

YLR 2017 LAHORE HIGH COURT LAHORE 1283 #

2017 Y L R 1283

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi, J

AHMED ALI---Appellant

Versus

The STATE and another---Respondents

Crl. Appeal No.429 of 2015, heard on 9th January, 2017.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay of about more than two hours in lodging FIR---Effect---Occurrence took place at 10.30 a.m. and same was reported to the police on the same day at 1.15 a.m.---Fact remained that police station was about twenty one kilometers away from the place of occurrence---Time of incident, place of occurrence, manner in which occurrence took place and distance of place of occurrence from the police station, all such factors established that there was "no delay" in reporting the matter to police---Said circumstances ruled out the possibility of due deliberation and false implication.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Accused was charged of the murder of wife of complainant and was named in the FIR---Specific role had been attributed to the accused about making fire-shot on the deceased---Prosecution produced two eye-witnesses including complainant in order to prove the ocular account---Complainant had reiterated the same facts and leveled the same allegation against the accused in a mode and manner as he mentioned in his statement before the police and on the basis whereof FIR was lodged---Evidence of eye-witness had supported the stance taken by the complainant---Witnesses deposed that accused made straight fire shot upon the deceased, which landed at her chest near neck, which went through and through---Victim fell down and succumbed to the injuries at the spot---Both the eye-witnesses had made consistent statements regarding involvement of the accused---Admittedly, place of occurrence was the house of complainant---Complainant being inmate of the house and eye-witness (close relative of complainant) were natural witnesses and their presence at the spot at the relevant time could not be doubted and they had sufficiently accounted for their presence at the spot---Credibility of the said witnesses could not be shaken during cross-examination---Statements of the eye-witnesses corroborated each other on all material aspects of the case and their evidence was not only straightforward but confidence inspiring---Testimony of said witnesses was fully corroborated by the medical evidence, which proved the fact that deceased died by firearm injuries---Ocular account was in line with the medical evidence---Ocular evidence about the kind of weapon used during the occurrence and the time of incident as narrated by the eye-witnesses of the occurrence had fully tallied with the medical evidence---Circumstances established that prosecution had proved its case against the accused to the extent of murder of deceased through confidence inspiring ocular account supported by medical evidence---Appeal against conviction was dismissed accordingly.

Muhammad Nisar v. The State 2006 SCMR 161 and Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872 rel.

----Witness---Minor discrepancies in the statements of prosecution witnesses---Effect---Minor discrepancies in the statements of the prosecution witnesses could not be considered as sufficient ground for discrediting their statements.

Iqbal alias Bhala v. The State 1994 SCMR 1 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Related witness, testimony of---Reliance---Complainant was husband of deceased and one prosecution witness was her close relative---Fact that witnesses were relative of the deceased was not enough to discredit them unless it was established that they were inimical towards the accused---If witnesses were found to be inimical towards accused but presence of such witnesses was not denied, their evidence could not be discredited---In the present case, neither the testimony of related witnesses was tainted nor they had any motive to falsely implicate the accused---Appeal against the conviction was dismissed in circumstances.

Sharafat Ali v. The State 1999 SCMR 329 rel.

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

----S. 302 (b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Weapon of offence (pistol) had been recovered from deserted coal mine, which was easy accessible to the public-at-large---Recovery witness was not examined---Report of Forensic Science Agency showed that the crime empties secured from the place of occurrence was found to have not been fired from the pistol allegedly recovered at the instance of accused---Said recovery of weapon of offence had become insignificant and same was of no help to the case of prosecution.

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

----S. 302 (b)---Qatl-i-amd---Appreciation of evidence---Motive not proved---Statements of both the eye-witnesses, were not clear as to what was actually the cause of the occurrence---No evidence was led to substantiate the motive of the occurrence---Circumstances established that prosecution failed to prove the motive of the occurrence.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Abscondance of accused---Evidentiary value---Accused had remained absconder for a period of one year without assigning any explanation in that regard---Abscondance of accused could be taken as strong circumstantial evidence---Said abscondance of accused had provided corroboration to the prosecution in the case, which had led the court to an irresistible conclusion---Appeal against conviction was dismissed.

(h) Criminal trial---

----Conviction---Sentence, quantum of---Extenuating circumstance---Principle---Accused was entitled for benefit of an extenuating circumstance while deciding the quantum of sentence.

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

----S. 302 (b)---Qatl-i-amd---Appreciation of evidence---Sentence, quantum of---Mitigating circumstances---Prosecution failed to prove the motive part of the occurrence---Recovery of pistol had become inconsequential---Said factors constituted mitigating circumstances, benefit of which would resolve in favour of accused---Circumstances established that Trial Court was justified for not awarding capital sentence to the accused---Appeal against conviction and sentence was dismissed in circumstances.

Sharafat Ali Khan v. The State 2010 SCMR 1205 rel.

Malik Shahid Iqbal for Appellant.

Sheikh Istajabat Ali, DPG with Muhammad Aslam, S.I. for the State.

Muhammad Arshad for the Complainant.

YLR 2017 LAHORE HIGH COURT LAHORE 1300 #

2017 Y L R 1300

[Lahore]

Before Jawad Hassan, J

SOHAIL FAROOQ---Petitioner

Versus

FARZANA RAFIQUE and others---Respondents

W.P. No.377 of 2012, heard on 15th February, 2016.

Family Courts Act (XXXV of 1964)---

----S.13---Application for enhancement of maintenance allowance by mother before executing court---Father contended that executing court was not competent forum to adjudicate the matter---Mother contended that application of enhancement of maintenance was moved before Family Court where execution proceedings of the decree was already pending and that father's previous conduct of reluctance to participate in legal proceedings was also to be taken into consideration---Validity---Record revealed that after the decree of maintenance and return of dowery articles, an application for enhancement of maintenance allowance was moved by mother before the Family Court---Execution proceedings were also in progress on the judgment and decree---During the pendency of application for enhancement of maintenance allowance, father firstly appeared and filed reply to the application and was proceeded ex parte and after the decision of the enhancement application father filed application for cancellation of enhancement order which was dismissed---Father was proceeded ex parte after affording him colossal opportunity and further he filed application for cancellation of enhancement order after about four months which showed his lack of interest---Bare perusal of the head note of application for enhancement of maintenance allowance filed by the mother vividly reflected that the same had been filed before the Judge of Family Court and not the executing court, therefore, mere writing "Execution Petition" on the headnote of order which was specifically passed on the application for enhancement of maintenance allowance filed by the mother before the Family Court could not defeat the right of the mother in any manner---Reply to the said application filed by the father also showed to be filed before the Judge Family Court---Family Court had exclusive jurisdiction to pass an order on application for enhancement of the maintenance allowance even after passing the final judgment and decree---Constitutional petition was dismissed.

Abdul Wahab v. Mst. Sadia and 2 others 2011 YLR 2550 ref.

Mian Muhammad Irfan for Petitioner.

Ch. Muhammad Rab Nawaz for Respondents.

YLR 2017 LAHORE HIGH COURT LAHORE 1315 #

2017 Y L R 1315

[Lahore (Rawalpindi Bench)]

Before Qazi Muhammad Amin Ahmed and Raja Shahid Mehmood Abbasi, JJ

MUHAMMAD AKHTAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.67-J and Murder Reference No.71 of 2011, heard on 3rd March, 2016.

Penal Code (XLV of 1860)---

----Ss. 302 & 324/337L(2)---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Complainant had stated that he along with witnesses of ocular account went to an office where the accused came and made fire on deceased as well as injured victims---Motive was dispute of a plot---Prosecution produced witnesses to prove its version---Occurrence was a daylight incident and FIR was lodged with sufficient promptitude and accused, real brother of injured victim, was nominated---Eye-witnesses were subject to lengthy cross-examination but they remained stuck to their stance taken by them on the day of occurrence in their statements recorded under Ss. 154 & 161, Cr.P.C. without any material deviation---Motive was also proved from the documents regarding civil litigation among parties produced by the defence---Medical evidence also provided full support to ocular account---Prosecution succeeded in proving its stance---Appeal was dismissed accordingly.

Muhammad Sharif Janjua for Appellant.

Naveed Ahmed Warraich, DDPP for the State.

Malik Waheed Anjum for the Complainant.

YLR 2017 LAHORE HIGH COURT LAHORE 1328 #

2017 Y L R 1328

[Lahore]

Before Abdul Sami Khan and Miss. Aalia Neelum, JJ

NASIR alias NASIREE---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.579 and Murder Reference No.177 of 2012, heard on 8th June, 2016.

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

----Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Sentence, reduction in---Complainant along with his brother and nephew was at particular point in the village saw his other nephew and his friend going out of village---Suddenly ambushed accused persons fired shots in result of which nephew of complainant died and his friend was injured---Motive was a quarrel about elections---Prosecution produced witnesses to prove their stance---FIR was lodged within reasonable time---Source of light was not mentioned in FIR but same was mentioned in site plan---Accused were duly named in FIR with specific role of making fatal fire-shot---Variance with regard to seat of injuries attributed to co-accused as well as exact seat of injury on the person of deceased by eye-witnesses was not fatal to the case of prosecution---Parties were residents of same locality, no chance of mistaken identity of accused existed---Fact of relationship of witnesses with complainant or with deceased was not enough to smash evidence adduced by such witnesses---Injury of a witness proved his presence at place of occurrence at relevant time---Minor discrepancies in statements of eye-witnesses was a result of passage of time between occurrence and recording of statements before Trial Court---One accused remained absconder for a period of 3-years and 3-months and 7-days which was corroborative piece of evidence against him---Medical evidence was in line with ocular account---Recovery remained inconsequential because Investigating Officer did not collected crime empties during first visit to place of occurrence---Prosecution failed to prove motive which was an extenuating circumstance---Death sentence was converted into imprisonment for life in circumstances---Appeal was dismissed accordingly.

(b) Criminal trial---

----Testimony of relative---Effect---Fact of relationship of witnesses with the complainant or with deceased would not be sufficient to smash evidence adduced by such witnesses---Such witnesses could be believed if intrinsic worth of their testimony inspired confidence of court and lead to an inference that witnesses were present at the scene of crime at relevant time.

Muhammad Ahmad and another v. The State and others 1997 SCMR 89 and Afzaal Ahmad v. The State 2003 SCMR 573 rel.

----Ss.302, 324, 148 & 149----Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Absconscion of accused---Effect---Absconscion of accused could be considered as corroborative piece of evidence against him when it was considered in conjunction with ocular testimony and other pieces of evidence.

Qaisar Khan and others v. The State and others 2009 SCMR 471 rel.

(d) Criminal trial---

----Mitigating circumstance---Motive not proved---If motive was not proved, same could be taken as mitigating circumstance.

Muhammad Yaseen v. The State 2011 SCMR 905; Iftikhar Mehmood and another v. Qaiser Iftikhar and others 2011 SCMR 1165; Hasil Khan v. The State 2012 SCMR 1936 and Haji Muhammad Sadiq v. Liaqat Ali and others 2014 SCMR 1034 rel.

(e) Criminal trial---

----Sentence---Extenuating circumstance---Accused was entitled to benefit of extenuating circumstance while deciding question of sentence.

Mir Muhammad alias Miro v. The State 2009 SCMR 1188; Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1660 and Sharafat Ali Khan v. The State 2010 SCMR 1205 rel.

Muhammad Zubair Khalid Chaudhry for Appellant.

Muhammad Ikhlaq, Deputy Prosecutor General for the State.

Ali Imran Naqvi for the Complainant.

YLR 2017 LAHORE HIGH COURT LAHORE 1348 #

2017 Y L R 1348

[Lahore]

Before Ch. Muhammad Iqbal, J

SUI NORTHERN OFFICERS COOPERATIVE HOUSING SOCIETY LTD.---Petitioner

Versus

MEMBER (JUDICIAL-V) BOARD OF REVENUE PUNJAB and others---Respondents

W.P. No.2411-R of 2017, decided on 13th February, 2017.

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

----S. 2---Constitution of Pakistan, Art.199---Constitutional petition---Evacuee property---Cancellation of allotment---Fraud and forgery---Allotment of urban land against rural units---Petitioners were aggrieved of order passed by Notified Officer, whereby allotment order was recalled on the ground of fraud--- Validity---Allotment order was obtained on the basis of forged document got prepared by unauthorized general power of attorney in favour of original allottees within urban limits against agriculture claim in year 1996, after repeal of Evacuee Laws---Allotted land was already declared as building site in year, 1973, and jurisdiction of Notified Officer was explicitly barred to deal with the affairs of such land/property in any manner whatsoever---Any order passed in violation of notification in question was to be treated as void and coram non judice, unjustifiable as urban properties could not be allotted against rural agricultural unit---Notified Officer had jurisdiction to re-open entire case to investigate element of fraud and decide the same as per law---Original transaction was unlawful, illegal and void ab initio---Every subsequent transaction based upon the same was bound to sink along with fate of the original---No illegality, perversity and irregularity in the order passed by Board of Revenue was found---High Court, in exercise of Constitutional jurisdiction, declined to interfere in the order passed by Notified Officer---Constitutional petition was dismissed in circumstances.

Muhammad Ramzan and others v. Member (Rev.)/CSS and others 1997 SCMR 1635; Ali Muhammad through Legal Heirs and others v. Chief Settlement Commissioner and others 2001 SCMR 1822; Syed Ansar Raza Zaidi and others v. Chief Settlement Commissioner and others 2007 SCMR 910; American International School System v. Mian Muhammad Ramzan and others 2015 SCMR 1449; Messrs Beach Luxury Hotels, Karachi v. Messrs Anas Muneer Ltd. and others 2016 SCMR 222; Custodian of Evacuee Property, Lahore v. Syed Saifuddin Shah PLD 1981 SC 565; Shamrooz Khan v. Muhabbat Khan and another 1989 SCMR 819; Syed Wajihul Hassan Zaidi v. Government of the Punjab and others PLD 2004 SC 801; Muhammad Baqir v. Haji Shokat Ali and 3 others 2005 CLC 1106; Member Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore v. Abdul Majeed and another PLD 2015 SC 166; Government of Punjab, Colonies Department Lahore and others v. Muhammad Yaqoob PLD 2002 SC 5; Member (S&R)/Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore v. Syed Ashfaque Ali and others PLD 2003 SC 132; Chief Settlement Commissioner/Member, Board of Revenue (S&R Wing) Punjab Lahore v. Akhtar Munir and 6 others PLD 2003 SC 603; Member, Board of Revenue, Punjab (Settlement and Rehabilitation Wing)/ Chief Settlement Commissioner, Punjab, Lahore v. Muhamamd Mustafa and 74 others 1993 SCMR 732; Muhammad Baran and others v. Member (Settlement and Rehabilitation) Board of Revenue Punjab and others PLD 1991 SC 691; Province of the Punjab through Collector Sheikhupura and others v. Syed Ghazanfar Ali Shah and others 2017 SCMR 172; Maqbool Ahmad and others v. Ghulam Hussain and others 2007 SCMR 1223 and Nazir Ahmad v. Commissioner, Gujranwala Division, Gujranwala and 2 others 1993 CLC 1943 ref.

(b) Fraud---

----Committal of---Effect---Fraud vitiates the most solemn proceedings and no party should be allowed to take advantage of its fraud---Any edifice built on fraud must be crumbled down automatically.

Lahore Development Authority v. Firdous Steel Mills (Pvt.) Limited 2010 SCMR 1097; Khadim Hussain v. Abid Hussain and others PLD 2009 SC 419; Talib Hussain and others v. Member, Board of Revenue and others 2003 SCMR 549; Khair Din v. Mst. Salaman and others PLD 2002 SC 677; Muhammad Younus Khan and 12 others v. Government of N.W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618; Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710; Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 and The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 rel.

----S.42---Declaration of title---Principle---Subsequent purchaser / title-holder has to swim and sink with original allottee and is debarred to claim better rights than the person from whom he derived title.

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition---Laches---Applicability---Order in question was assailed after lapse of 2 years and 6 days from the date of passing of the same---Principle of laches was fully attracted in circumstances.

S.A. Jameel v. Secretary to the Government of the Punjab, Cooperative Department and others 2005 SCMR 126; State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280; Civil Aviation Authority through Director General and 3 others v. Mir Zulfiqar Ali and another 2016 SCMR 183; Nan Fung v. H. Pir Muhammad Shamsdin PLD 1995 Kar. 421 and Messrs Mian Muhammad Awais Muhammad Shabbir, Commission Agents through Muhammad Awais v. Secretary to the Government of the Punjab and 8 others 2009 CLC 963 rel.

Tauqeer A. Munir, Mian Muhamamd Mohsin and Ghazanfar Ali Syed for Petitioners.

Muhammad Sohail Dar for Respondents.

YLR 2017 LAHORE HIGH COURT LAHORE 1383 #

2017 Y L R 1383

[Lahore]

Before Aalia Neelum, J

SOHAIL ASLAM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.1461 of 2008, heard on 1st November, 2016.

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

----Ss. 302, 324, 337-F(iii), 334, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mutalahimah, itlaf-i-udw, abetment, rioting armed with deadly weapon, common intention---Appreciation of evidence---Benefit of doubt---Ocular account did not support medical evidence---Prosecution case was that the accused armed with repeater 12-bore along with co-accused persons armed with deadly weapons made firing on the deceased and prosecution witnesses, who received injuries during the occurrence---Deceased (then injured) was shifted to hospital---Police reached the hospital after receiving information about the occurrence, got recorded statement of the injured---Injured, however, succumbed to the injuries---FIR was lodged on the statement of the deceased (then injured)---Ocular account was furnished by the injured witnesses including complainant of private complaint---Enmity of complainant party with the accused was admitted by the witnesses---Evidence of the said witnesses was in-line about enmity of parties and injuries attributed to the accused---Prosecution case was that accused made fires with his gun .12-bore repeater which landed on the right thigh, left thigh, left foot, left knee and on different parts of injured witness---Both witnesses deposed in the similar lines; however, material contradictions and discrepancies were found in the testimony of said witnesses regarding inflicting of injuries on the person of injured witness---All the injuries found on the person of injured witness at the time of medical examination were caused by three different weapons, whereas as per the first version of said witnesses, accused caused injuries with his gun 12-bore repeater on the person of injured witness---Both the witnesses had not attributed specific injuries to co-accused nor had clarified the injuries on the body of injured witness inflicted by accused---Causing of injuries by a number of accused persons on the person of injured created doubts about the truthfulness of the witnesses---Said witnesses made improvements in their version which was contradicted by medical evidence---Prosecution had not claimed that injuries on the person of deceased were caused by accused---Circumstances established that involvement of accused in the commission of offence was dubious, benefit of which would resolve in favour of accused---Testimony of witnesses and site-plans were fully consistent on the point that distance between assailant and injured witnesses was 30 to 35 feet which was not supported by medical evidence---Dimension of the injuries were not result of .12-bore repeater gun---Circumstances suggested that true genesis of the occurrence had been withheld by the prosecution, therefore, possibility of false implication of the accused in the alleged crime could not be ruled out---Accused was acquitted by setting aside conviction and sentences recorded by Trial Court in circumstances.

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

----Ss. 302, 324, 337-F(iii), 334, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mutalahimah, itlaf-i-udw, abetment, rioting armed with deadly weapon, common intention---Appreciation of evidence---Prosecution had alleged that motive for the occurrence was that deceased had got registered criminal case against accused and co-accused and accused persons refrained the complainant party to pursue the said case---Complainant had not moved any complaint to the effect that accused was threatening him---Complainant, however, had deposed that he had verbally asked the Magistrate that accused was extending threats---Complainant admitted that he had not mentioned in the complaint nor in his cursory statement that he had deposed before the Magistrate that accused was threatening him for not pursuing the case---Circumstances suggested that prosecution had failed to prove the motive---Accused was acquitted by setting aside conviction and sentences recorded by Trial Court in circumstances.

----Enmity---Scope---Enmity was a double edged weapon, which cut both ways---If on one side, enmity provided a motive for the accused to commit an offence on the other hand, equally provided opportunity to the complainant to implicate his enemy.

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

----Ss. 302, 324, 337-F(iii), 334, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mutalahimah, itlaf-i-udw, abetment, rioting armed with deadly weapon, common intention---Appreciation of evidence---Benefit of doubt---Weapon of offence was not recovered from accused---Effect---No crime empties were recovered from the place of occurrence---Weapon of offence was not recovered from the accused---Such circumstances created doubt about the prosecution case, benefit of which would resolve in favour of accused---Accused was acquitted by setting aside conviction and sentences recorded by Trial Court in circumstances.

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

----Ss. 302, 324, 337-F(iii), 334, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mutalahimah, itlaf-i-udw, abetment, rioting armed with deadly weapon, common intention---Appreciation of evidence---Benefit of doubt---Dying declaration--Scope---Prosecution case was that the accused along with co-accused made firing on the deceased and prosecution witnesses---Deceased was shifted to hospital in injured condition; police reached there and got recorded his statement---Injured, however, succumbed to the injuries---FIR was lodged on the statement of deceased, which was considered as dying declaration---Investigating Officer stated that on receiving information of the occurrence he visited the hospital where the deceased (then injured) was admitted---Dying declaration of deceased was recorded without obtaining opinion of the doctor about his condition---Record showed that Investigating Officer had not observed legal formalities at the time of recording statement of deceased (then injured)---Investigating officer did not turn out other relatives from the ward before recording statement of deceased (then injured)---Investigating Officer admitted that he did not seek permission from the Medical Officer for recording statement of deceased as to his fitness to make statement---Dying declaration was not verified by any member of the hospital---Record showed that deceased remained in hospital for about fifteen days, during which there was sufficient time for Investigating Officer to record the dying declaration in presence of Magistrate, which was not done---Statements of witnesses were not in line with the contents of dying declaration---Circumstances suggested that the deceased while in injured condition was tutored during recording of statement and he had made the statement with consultation and deliberation---Said circumstances cast doubt on the prosecution case, benefit of which would resolve in favour of accused---Accused was acquitted by setting aside conviction and sentences recorded by Trial Court in circumstances.

(f) Criminal trial---

----Abscondance of accused---Evidentiary value---Factum of abscondance, even if established, could only be used as corroborative evidence and was not substantive piece of evidence.

Rasool Muhammad v. Asal Muhammad and another 1995 SCMR 1373 and Rohtas Khan v. The State 2010 SCMR 566 rel.

(g) Criminal trial---

----Guilt of accused, proof of---Principle---Accused was presumed to be innocent unless proved guilty and prosecution was supposed to prove its case on the record beyond reasonable doubt by leading cogent, convincing and reliable evidence.

(h) Criminal trial---

----Evidence--- Defence evidence---Reliance---Prosecution was to stand on its own legs and it could not derive any benefit from the defence witnesses, if any.

Shera Masih and another v. The State PLD 2002 SC 643 rel.

(i) Criminal trial---

----Benefit of doubt---Principle----Failure of prosecution to bring credible evidence to establish that prosecution witnesses had brought true facts before the court---Benefit of doubt was to be extended in favour of the accused.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Munir Ahmad Bhatti for Appellant.

Muhammad Akhlaq, D.P.G. for the State.

Gohar Razzaq for the Complainant.

YLR 2017 LAHORE HIGH COURT LAHORE 1441 #

2017 Y L R 1441

[Lahore (Multan Bench)]

Before Farrukh Gulzar Awan, J

GHULAM NAZIK---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and 2 others---Respondents

Crl. Revision No.347 of 2015, decided on 19th October, 2015.

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

----S. 514---Forfeiture of surety amount---Order, setting aside of---Trial Court issued notice to surety who was directed to submit reply to show cause notice on the same day which was not submitted by the surety---Trial Court proceeded to impose penalty and surety was lodged in civil prison for recovery of imposed penalty---Validity---Trial Court had passed the order in haste without affording sufficient/fair opportunity---Court had neither determined as to whether surety stood for the accused on benevolence or got the accused released on bail with some ulterior motive---Trial Court did not adopt procedure step-by-step as provided under S. 514, Cr.P.C., thus committed illegality and material irregularity while passing the impugned order---Failure of issuing warrant for the attachment and sale of immovable property belonging to the surety by Trial Court was illegal---Impugned order was set aside---Revision was allowed accordingly.

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

----S. 514---Forfeiture of surety amount---Procedure---Court would record the grounds of proof to the effect that the bond had already been forfeited and call upon the surety to pay the penalty---Court could proceed to recover the penalty by issuing a warrant for attachment and sale of moveable property.

Naseer Muhammad v. The State 1996 PCr.LJ 860 rel.

----Order in contravention of law could not be termed as proper judicial order.

M. Anayat v. The State PLD 1995 Lah. 569 rel.

Muhammad Ghias-ul-Haq Sheikh for Petitioner.

YLR 2017 LAHORE HIGH COURT LAHORE 1453 #

2017 Y L R 1453

[Lahore (Multan Bench)]

Before Qazi Muhammad Amin Ahmed, J

TAHIR MEHMOOD---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, VEHARI and 2 others---Respondents

W.P. No.16412 of 2016, decided on 16th November, 2016.

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

----S. 489-F---Constitution of Pakistan, Art. 199--- Constitutional petition---Dishonestly issuing a cheque---Stay of proceedings before Trial Court---Petitioner was indicted by Trial Court under S.489-F, P.P.C. for his default in fulfilment of a financial obligation as cheques issued by him, were bounced upon presentation---Petitioner filed civil suit seeking cancellation of cheque and sought the stay of criminal proceedings initiated against him before the Trial Court till the decision of civil suit for the cancellation of cheques---Trial Court had declined request of petitioner to hold the trial in abeyance till decision of civil suit---Validity---Criminal and civil pursuits could proceed side by side, however there could be cases where criminal indictment was indissolubly intertwined with the justifiability of a cause of action in civil jurisdiction---Where assumption of jurisdiction or cognizability of the offence was dependent upon a complaint/sanction by some civil or revenue court, situation would be different---In the present case, complainant had alleged that petitioner owed Rs. 400,000/- on account of purchase of cotton crop and handed him over two bank cheques---Said cheques were dishonored upon presentation---Petitioner admitted delivery of cheques duly signed but with different story in the civil suit, view taken by Trial Court being unexceptionable, in circumstances, did not call for any interference---Constitutional petition was dismissed accordingly.

Abdul Ahad v. Amjad Ali and others PLD 2006 SC 771 and Akhlaq Hussain Kayani v. Zafar Iqbal Kiyani and others 2010 SCMR 1835 ref.

Malik Khuda Bakhsh v. The State 1995 SCMR 1621 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Constitutional petition against judicial rendition in exercise of revisional powers by a Court of Session was not maintainable.

YLR 2017 LAHORE HIGH COURT LAHORE 1463 #

2017 Y L R 1463

[Lahore (Multan Bench)]

Before Mudassir Khalid Abbasi, J

BANK OF PUNJAB through Chief Executive/Chairman and 2 others---Petitioners

Versus

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

Writ Petitions Nos.18653 and 18654 of 2016, decided on 4th January, 2017.

Civil Procedure Code (V of 1908)---

----S.47---Execution petition---Limitation---Petitioners were aggrieved of orders passed by Executing Court whereby their objections were dismissed---Validity---Both decrees were passed on 12-11-2011 by Trial Court and appeals were dismissed on 26-10-2015, by Lower Appellate Court and in-between decrees remained suspended---Execution petitions were filed by decree holders on 27-2-2016 and period between dismissed of appeals by Lower Appellate Court and filing of execution petitions was around four months---Execution petitions were within time for the purposes of filing---High Court declined to interfere in orders passed by two Courts below---Constitutional petition was dismissed in circumstances.

Pakistan Burma Shell Company Now/Shell Pakistan Ltd. through Legal Advisor/General Attorney Shell Pakistan Shell, Karachi v. Messrs Nawaz and Sons through Proprietor and another 2016 MLD 1779 distinguished.

Manzoor Ellahi Qureshi through Legal Heirs v. Muhammad Bilal Abbas and 2 others 2012 CLC 1227; Mahboob Khan v. Hassan Khan Durrani PLD 1990 SC 778; Bakhtiar Ahmed v. Mst. Shamim Aktar and others 2013 SCMR 5 and 2003 SCMR 436 rel.

YLR 2017 LAHORE HIGH COURT LAHORE 1467 #

2017 Y L R 1467

[Lahore]

Before Shujaat Ali Khan, J

MUHAMMAD JAVED SARWAR through Special Attorney---Petitioner

Versus

SAMRA YASMEEN and 4 others---Respondents

W.P. No.8687 of 2016, decided on 29th March, 2017.

Family Courts Act (XXXV of 1964)---

----S.7 & Sched.---Suit for recovery of dowry articles---List of dowry articles, proof of---Scope---Petitioner contended that he being settled abroad at the time of marriage had restrained parents of respondent to give her dowry articles, however, whatever dowry articles were given to respondent were lying packed at his house---Respondent contended that though petitioner was settled abroad at the time of marriage but marriage was solemnized according to local rituals and she was liable to recover dowry articles as claimed according to the list---Validity---Original list of dowry articles was not produced by plaintiff/respondent, exhibited list could not be considered as conclusive proof of dowry articles especially when respondent admitted that neither the prices of articles were mentioned in said list nor the same was signed by anybody from petitioner's side---Though provisions of Qanun-e-Shahadat, 1984 were not applicable to family matters but when a party failed to prove its case as set out in its pleadings, court had to be very careful and cautious while giving any verdict in favour of said party---Bona fide on the part of petitioner/defendant was manifested from the fact that not only while filing written statement, he took the stance that the articles given by the parents of respondent were lying in packed condition in his house but also specific suggestion was put to witness of respondent in that regard during course of evidence---Said fact also found support from plea of respondent that just after twenty days of the marriage, petitioner went abroad and never came back---Another witness of plaintiff/respondent, during the cross-examination, admitted that the petitioner had restrained the parents of respondent to give her dowry articles on the premise that he wanted to shift her abroad---When list of dowry articles produced by a plaintiff in a family suit remained un-established, matter could be decided while relying upon the list attached by defendant with his written statement or the articles stated by him in his evidence---Impugned judgments and decrees were modified to the extent that respondent would be entitled to recover the dowry articles lying with the petitioner in packed condition---Executing court would be at liberty to appoint local commission as it was not possible to determine alternate price of packed articles rather it was left up to executing court to ensure determination of the prices of packed articles through local commission and in case of non-return of dowry articles, respondent would be entitled to their price to be determined by executing court---Order accordingly.

Mst. Shazia Begum v. Additional District Judge Islamabad and others PLD 2014 SC 335 ref.

Mian Tariq Hussain for Petitioner.

YLR 2017 LAHORE HIGH COURT LAHORE 1485 #

2017 Y L R 1485

[Lahore]

Before Abdul Rehman Aurangzeb, J

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LAHORE through Secretary---Petitioner

Versus

AKBAR ALI---Respondent

Civil Revision No.1955 of 2015, heard on 4th April, 2017.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Limitation---Change of date of birth---Scope--- Rectification of school Certification--- Scope--- Contention of plaintiff was that his date of birth was 06-12-1983 instead of 06-12-1978---Suit was decreed concurrently---Validity---Ossification test was conducted on the instructions of defendant---Result of ossification test was in favour of plaintiff which had not been rebutted by the defendant through documentary evidence---Date of birth of plaintiff was 06-12-1983---Mistake might have occurred in the admission form and same was rectifiable---Suit for which no period of limitation was provided could be filed within a period of six years when right to sue accrued---Civil Court being court of ultimate jurisdiction could look into the illegality committed by any forum---Plaintiff had taken all possible steps for rectification of school certificate---Decisions of courts below were based on reasons---No illegality or irregularity had been pointed out in the impugned judgments and decrees passed by the courts below---Correction of date of birth did not affect right of any person or policy of Education Board---Revision was dismissed in circumstances.

Federal Board of Intermediate and Secondary Education Islamabad through Chairman/Secretary v. Junaid Rehmat 2009 YLR 1296 rel.

Mehboob Azhar Sheikh for Petitioner.

M. Younas Bhullar for Respondent.

YLR 2017 LAHORE HIGH COURT LAHORE 1497 #

2017 Y L R 1497

[Lahore (Rawalpindi Bench)]

Before Ibad-ur-Rehman Lodhi, J

FAROOQ MEHNDI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.206-B of 2017, decided on 15th February, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, grant of---Although the presence of accused at the crime scene along with a pistol had been alleged in First Information Report, but except his such presence no overt act had been attributed to him---Co-accused was attributed the role of raising a lalkara had been allowed bail by High Court---Such release of co-accused had never been challenged by the complainant side or the State---Alleged role of accused in the reported crime was less than that of co-accused and case of accused, thus, for his release on post arrest bail was on better footing than that of the earlier released co-accused---Accused was behind the bars since 28.06.2016 and present detention, in such circumstances, would be nothing but a pre-trial punishment which was not the intention of law---Bail was granted accordingly.

Zeeshan Riaz Cheema, for Petitioner.

2017 Y L R 1548

[Lahore]

Before Muhammad Qasim Khan and Sardar Muhammad Sarfraz Dogar, JJ

Malik SOHAIL ASLAM---Petitioner

Versus

SUPERINTENDENT OF POLICE (OPERATION), LAHORE and 3 others---Respondents

Intra Court Appeal No.1232 of 2015, decided on 5th December, 2016.

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

----S. 22-A(6)---Ex-officio Justice of Peace---Role and function of---Issuing appropriate directions to police authorities concerning complaint regarding non-registration of criminal case---Section 22-A, Cr.P.C. conferred discretionary powers upon Ex-officio Justice of Peace with regard to such direction---Ex-officio Justice of Peace was obliged to exercise powers vested under the law in a judicious manner with application of mind, taking into consideration the facts and material of the case.

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

----Ss. 22-A & 22-B---Penal Code (XLV of 1860), S.489-F---Application for registration of case against accused was allowed by Ex-Officio Justice of Peace after requisitioning the comments from SHO concerned---Accused had challenged the vires of said order through Constitutional petition, which was allowed---Applicant filed intra court appeal against the said order---Validity---Bare perusal of the application filed by the applicant constituted commission of cognizable offence, but concerned SHO had not registered case---Applicant was constrained to file a petition under Ss.22-A & 22-B, Cr.P.C. before the Ex-Officio Justice of Peace, who had issued direction for registration of case against the accused---Application made to SHO concerned with respect to the dishonouring of cheques was sufficient to constitute offence under S. 489-F, P.P.C. as liability/obligation had accrued against the cheques---Admittedly cheques were dishonoured and relevant slips were attached with the record, which constituted offence against the accused---Intra court appeal was allowed accordingly.

Muhammad Bashir v. Station House Officer, Okara Cantt and others PLD 2007 SC 539 and Younas Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581 rel.

----S. 154---First information report---Object---FIR was a pertinent document in criminal law---Main object of FIR was to set criminal law in motion, obtain information about the alleged criminal activity so as to take suitable steps to trace and to bring to book the guilty.

Muhammad Shoaib Khokhar for Appellant.

Muhammad Hammad Khan Rai, A.A.G. along with Arshad ASI for Respondents.

YLR 2017 LAHORE HIGH COURT LAHORE 1576 #

2017 Y L R 1576

[Lahore (Multan Bench)]

Before Qazi Muhammad Amin Ahmed and Ch. Mushtaq Ahmad, JJ

MUHAMMAD AZAM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.736-J of 2012 and Murder Reference No.52 of 2011, heard on 24th October, 2016.

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

----Ss. 302 & 365---Qatl-i-amd, kidnapping or abducting with intent secretly and wrongfully to confine person---Appreciation of evidence---Benefit of doubt---Unseen occurrence---Prosecution case was that accused kidnapped and murdered the deceased---Accused was not nominated in FIR and it was an unseen occurrence---Prosecution produced fourteen witnesses in order to prove the charge---None of them had claimed to have seen the accused while committing murder of the deceased within their sight---Record was silent as to who informed the police about presence of dead body of deceased lying in the field---Matter was reported to the police after 12 days of the missing of deceased---Where the fact as to how the deceased was murdered and his dead body was thrown in the field of standing wheat crop, was not explained by the prosecution, no evidence of "Wajj Takkar" came on record and none of the prosecution witnesses had expressed suspicion against the accused during search of deceased, accused, was acquitted by setting aside his conviction and sentence recorded by Trial Court in circumstances.

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

----Ss. 302 & 365---Qatl-i-amd, kidnapping or abducting with intent secretly and wrongfully to confine person---Appreciation of evidence---Extra-judicial confession---Evidentiary value---Extra-judicial confession allegedly made by the accused before two prosecution witnesses---Apparently, there was no reason for the accused to confess his guilt before the prosecution witnesses, who were relatives of the deceased, which had been admitted by prosecution witness---Even otherwise, evidence of extra judicial confession was considered as weak evidence, which, in the present case, was not confidence inspiring---Accused, in circumstances, was acquitted by setting aside his conviction and sentence recorded by Trial Court.

----Ss. 302 & 365---Qatl-i-amd, kidnapping or abducting with intent secretly and wrongfully to confine person---Appreciation of evidence---Recovery of incriminating material--- Reliance---Recovery of incriminating articles like "Safa" and computerized National Identity Card of deceased were effected---Such recoveries did not appeal to reason that after the commission of murder, accused would retain such articles with him---Accused, in circumstances, was acquitted by setting aside his conviction and sentence recorded by Trial Court.

Prince Rehan Iftikhar Sheikh for Appellants.

Nemo for the Complainant.

Malik Riaz Ahmed Saghla, Deputy Prosecutor General for the State.

YLR 2017 LAHORE HIGH COURT LAHORE 1605 #

2017 Y L R 1605

[Lahore]

Before Abdul Sami Khan, J

FARHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No.743 of 2013, heard on 27th November, 2015.

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

----Ss. 302, 109 & 34---Juvenile Justice System Ordinance (XXII of 2000), Ss. 5 & 6--- Qatl-i-amd, abetment, common intention---Accused had challenged the order handed down by the Court of Session through which application by the accused for separation of trial being juvenile was dismissed---Accused had relied upon his birth certificate wherefrom the age of accused was commuted as fourteen years, seven months and seven days but the same had been entered in the record of Union Council only last year (2014)---Educational certificate of accused was not an independent source of information about the age of accused because said document was followed the information volunteered by student himself or someone connected with him---Such document could not be found to be conclusive proof of date of birth---When controversy regarding the age of accused could not be settled through documentary evidence, preference would be given to the medical opinion---According to the opinion furnished by Medical Board accused was about sixteen to seventeen years of age at the time of his ossification test conducted eight months and twenty days after the occurrence---Taking into consideration possibility of variance on one year in both sides existed in medical opinion, accused was less than eighteen years of age and had fallen within the definition of a 'child' to get the benefit of Juvenile Justice System Ordinance, 2000---Revision was allowed accordingly.

2012 SCMR 1400 rel.

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

----S. 7---Determination of age---Scope---When controversy regarding the age of accused could not be settled through documentary evidence, preference would be given to the medical opinion.

2012 SCMR 1400 rel.

Abdul Rauf Farooq for Petitioner.

Irfan Zia, Deputy Prosecutor-General for the State.

Malik Zafar Iqbal for Respondent No. 2.

YLR 2017 LAHORE HIGH COURT LAHORE 1636 #

2017 Y L R 1636

[Lahore]

Before Shahid Hameed Dar, J

NASIR GULZAR---Petitioner

Versus

Mst. NABEELA GULZAR and 3 others---Respondents

Writ Petition No.2862 of 2012, heard on 26th January, 2016.

Criminal Procedure Code (V of 1898)---

----S. 540--- Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Application for re-summoning and re-examining the Investigating Officer---Accused had challenged the validity of order which allowed the application of complainant for re-summoning and re-examining the Investigating Officer---Complainant looked more interested in protracting the proceedings of trial of accused (her real brother)---Copy of testimony of Investigating Officer was available on record which showed that he had already rendered an exhaustive statement that could easily be taken into consideration by the Trial Court together with the other pieces of evidence to reach a just conclusion of case---Examination of a given-up prosecution witness (father of parties) as a defence witness would hardly justify invocation of judicial discretion under S.540, Cr.P.C.---Section 540, Cr.P.C. could not be brought forth to let a party to fill-in the lacunae of its case---Impugned order was not based on any rationale nor did it serve the ends of justice in any manner and was liable to be annulled---Constitutional petition was allowed accordingly.

Babar Waheed for Petitioner.

Aamir Saeed Rawn for Respondent No.1.

Malik Faiz Rasool Rajwana, Law Officer for the State with Bashir Ahmad, SI for Respondents.

YLR 2017 LAHORE HIGH COURT LAHORE 1662 #

2017 Y L R 1662

[Lahore (Multan Bench)]

Before Amin-ud-Din Khan, J

ALLAH DAD---Petitioner

Versus

MUHAMMAD (deceased) through L.Rs. and others---Respondents

Civil Revision No.247-D of 1998, heard on 15th December, 2016.

Punjab Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)---

----Ss. 3 & 17---Specific Relief Act (I of 1877), S. 42---Redemption of mortgaged property--- Jurisdiction--- Suit for declaration---Scope---Plaintiff contented that suit property was mortgaged by predecessor of plaintiff before independence to a hindu (non evacuee) which was transferred to Federal Government as evacuee property who illegally removed the name of plaintiff from the array of owners of suit property---Plaintiff further submitted that initial allotment by Federal Government and further successive sale of suit property, other than plaintiff, were wrong---Allottee and purchasers raised objection on maintainability of civil suit and also submitted that the plaintiff himself tried to purchase suit property from allottee of Federal Government---Validity---Plaintiff had opted not to appear in the witness box and no sufficient ground for non-appearance as witness was offered---Plaintiff produced his son as his attorney who at the time of appearance as witness was 33 years old and most of the previous things/events were not in his knowledge---Plaintiff tried to take the benefit of Fard-e-Intikhab prepared by Patwari and a reply of Band Sawalat but just producing those two documents did not prove the case pleaded by plaintiff---Plaintiff had not produced the copy of mutation, according to which, the endorsement of plaintiff and his predecessors as owner of suit property were removed by transferring all rights in favour of the Federal Government---Plaintiff was required to prove that the suit property was mortgaged by his predecessors and he was son of one of the alleged mortgagors but plaintiff failed to prove the same---Application under S. 3 of Punjab Redemption and Restitution of Mortgaged Lands Act, 1964 was competent before District Collector and the civil court had no jurisdiction under S. 17 of the said Act---Admittedly, the plaintiff or his predecessor never applied for redemption of the land in question before the Collector; when it was so, the suit was not competent---Pre-existing rights could be declared through a declaratory decree and no new right could be created through such decree---No pre-existing rights had been proved by the plaintiff, plaintiff was bound to show that the principal money had become due and he was ready to pay back the principal money and was entitled to redemption---Plaintiff had not approached the appropriate forum and as such his civil suit was not competent---Judgment and decree passed by first appellate court was not sustainable under the law---Civil revision was allowed accordingly.

Muhammad Suleman Khan for Petitioner.

Muhammad Ashraf Qureshi for Respondent No.1.

Mubashir Latif Gill, Assistant Advocate General for Respondents Nos. 2 and 3.

Ex parte for Respondents Nos.4 and 5.

YLR 2017 LAHORE HIGH COURT LAHORE 1684 #

2017 Y L R 1684

[Lahore (Rawalpindi Bench)]

Before Atir Mahmood, J

SARFRAZ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 5 others---Respondents

Writ Petition No.2591 of 2016, decided on 19th October, 2016.

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

----S. 5, Sched. & S. 14(2)(b)(c)---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Recovery of maintenance allowance and dowry articles---Appeal---Scope---Family Court had decreed the suit for maintenance to the extent of Rs. 3,000/- per month for the Iddat period for wife and Rs. 4,500/- per month each for the minors till their legal entitlement, with 10% annual increase and wife was also held entitled to recover dowry articles for Rs. 51,300---Appellate Court dismissed the appeal filed by the defendant---Validity---No appeal was entertainable against decree of dowry articles upto Rs. 1,00,000/---Appeal having not been provided by the statute, constitutional petition was also not competent---No mis-reading or non-reading of evidence had been pointed out---Section 14 (2)(c) of Family Courts Act, 1964 mentioned the amount of maintenance allowance for a single person and not the accumulative one for all the children and wife---Amount of maintenance allowance granted to each of the plaintiffs was less than Rs. 5,000/- therefore, appeal was not maintainable---Minors were children of defendant (father) and it was his responsibility to maintain them---Amount of Rs. 4,500/- for each of the minor had been awarded which was hardly sufficient to meet with the requirements of minors---Concurrent findings of law and fact against the defendant were based upon due appraisal of evidence---Constitutional petition was dismissed in limine.

Muhammad Nadeem v. Aneesa Bibi and others 2016 CLC 81 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Concurrent findings could not be interfered with while exercising constitutional jurisdiction unless there was some illegality, mis-reading or non-reading of evidence or some jurisdictional defect.

YLR 2017 LAHORE HIGH COURT LAHORE 1703 #

2017 Y L R 1703

[Lahore]

Before Abdul Sami Khan, J

ZAFAR ALI---Petitioner

Versus

REGIONAL POLICE OFFICER and 3 others---Respondents

Writ Petition No.23547 of 2015, decided on 10th September, 2015.

Penal Code (XLV of 1860)---

----Ss. 452, 354, 337-F(iii), 337-L(2), 337-A(i), 34 & 109---Criminal Procedure Code (V of 1898), Ss.173 & 190---Police Order (22 of 2002), Art.18(5)(b)---House-trespass after preparation for hurt, assault or wrongful restraint, assault or criminal force to woman with intent to outrage her modesty, causing Mutalahimah and hurt, causing Shajjah-i-Khafifah, common intention, abetment---Change of investigation---Regional Police Officer, in exercise of the powers under Art.18(5)(b) of Police Order, 2002, recommended for second change of the investigation---Validity--- Section 173, Cr.P.C., commanded expeditious conclusion of the investigation; and further ordained that on conclusion of every investigation, the concerned S.H.O., would submit a report of the result thereof in the prescribed manner to the Magistrate, competent to take cognizance under S.190, Cr.P.C.---No power vested with any court including a High Court to override the said legal command; and to direct the S.H.O., either not to submit the said report, or to submit the said report in a particular manner i.e. against only such person as the court desired or only with respect to such offences as the court wished---Impugned order, could also not be sustained, because, the challan in question stood already submitted in court, and was beyond the reach of the concerned S.H.O.---Statutory provisions contained in Cr.P.C., Police Order, 2002 and Police Rules, 1934, had authorized the Investigating Officer only to collect all the relevant evidence, and to submit his report under S.173, Cr.P.C., before the court, so as to enable the court to form an independent opinion regarding sufficiency or otherwise of the evidence; and the material in order to decide, whether to take cognizance of offence or not, or to summon any person to face a trial---Submission of even the subsequent challan, was not barred under the provisions of Cr.P.C., but it was entirely the discretion of the court to admit the additional evidence, collected during the re-investigation being admissible or not---Investigating Officer was bound to collect all the relevant evidence pertaining to allegations levelled regarding the crime in issue, so as to dig out the truth enabling and facilitating the court to administer justice between the litigants---Petitioner, had suffered the agony of trial from the year 2011, and after such a belated stage, the Regional Police Officer recommended for second change of investigation---Trial having already commenced, changing the investigation or ordering further investigation in the matter thereafter was an exercise unsustainable in law---Order of Regional Police Officer, would be a futile effort as the Trial Court had to proceed with the trial on the basis of the report already submitted under S.173, Cr.P.C.---Impugned order passed by Regional Police Officer for change of investigation was set aside, in circumstances.

2014 SCMR 1499 ref.

Sardar Muhammad Abbas Watto for Petitioner.

Malik Abdul Aziz Awan Addl: Advocate General for the State.

YLR 2017 LAHORE HIGH COURT LAHORE 1734 #

2017 Y L R 1734

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD INTIZAR HUSSAIN---Petitioner

Versus

MUHAMMAD IQBAL---Respondent

C.R. No. 310 of 2011, heard on 16th March, 2017.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Talbs, performance of---Requirements---Pre-emptor was bound to prove performance of talbs for grant of decree of pre-emption---Vendor was sister of pre-emptor but he did not disclose said relationship in the plaint---Plaintiff had nowhere asserted that either relations between them at relevant time were not cordial or he was not available in the village when sale was sanctioned---Story launched by the pre-emptor with regard to gaining knowledge of disputed sale and then fulfilment of first demand after a period of more than one month of transaction was fictitious and concocted---Pre-emptor being brother of vendor could be presumed to have knowledge of sale from its commencement---Plaintiff had not produced the informant before the Court who reported the transaction---Best evidence had been withheld without any justification---Courts were bound to draw adverse inference against the pre-emptor---Plaintiff had failed to perform Talb-i-Muwathibat in circumstances---Nothing was on record that notice of Talb-i-Ishhad was received by the vendee---Acknowledgement due card was neither put to the postman nor got exhibited in his statement---Postal acknowledgement due card was not available on the file---If a witness was not subjected to cross-examination with regard to a fact deposed in his examination-in-chief then it would be deemed to be admitted---Courts below had failed to record just and fair findings---Impugned judgments and decrees passed by the Courts below were set aside and suit was dismissed---Revision was allowed in circumstances.

Naseer Ahmad v. Arshad Ahmad PLD 1984 SC 403; Abdul Hameed and others v. Muzamil Haq and others 2005 SCMR 895; Hassan Din and others v. Manzoor Hussain and others 2010 SCMR 810; Mst. Zahida Perveen v. Mst. Perveen Akhtar 2012 CLC 1497; Noor Jan v. Abdul Deyan and others 2014 MLD 891; Abdul Rehman v. Haji Ghazan Khan 2007 SCMR 1491; Muhammad Hafeez through attorney v. Muhammad Riaz 2015 YLR 229; Falak Niaz v. Amal Din and another 2016 YLR 2047; Mst. Razia Begum v. Adam Khan and another 2016 YLR 172 and Aqal Zaman and others v. Balqiat Khan and others 2016 MLD 245 rel.

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

----S.115---Revisional jurisdiction of High Court--- Scope--- High Court while exercising revisional jurisdiction could interfere in concurrent findings of facts if there was mis-reading or non-reading of material on record.

Muhammad Yasin Hatif for Petitioner.

Mian Muhammad Hussain Chotya for Respondent.

YLR 2017 LAHORE HIGH COURT LAHORE 1748 #

2017 Y L R 1748

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

Mst. SABIHA KHANAM---Petitioner

Versus

MUHAMMAD AHED KHAN CHEEMA, DG, LDA and others---Respondents

Crl. Org. No.1385-W of 2015, decided on 27th April, 2016.

Constitution of Pakistan---

----Art. 204---Contempt of Court---Redressal of grievance---Petitioner was aggrieved of non-compliance of order passed by High Court as plot in question was not allotted to her---Authorities placed on record copy of letter showing that plot in question was allotted to petitioner and she was satisfied and did not want to press her petition---Effect---High Court observed that although contempt of High Court had taken place a number of times in the course of such sordid story of usurpation of rights and property of a private citizen and then demonstration of stark high handedness of executive functionaries to compensate citizen adequately and properly, as grievance of petitioner was redressed, therefore, High Court in its utter wisdom was not proceeding further with contempt petition against authorities, by showing grace and mercy to them with the expecta-tion that they would remedy their error of ways---High Court, however, directed the head of the department concerned (Development Authority) to complete the projects/tasks which had been undertaken by his predecessor---Petition was disposed of accordingly.

M. Asad Manzoor Butt and Ch. Imtiaz Ahmad Goraya for Petitioner.

Shaikl-ur-Rehman, Advocate General, Punjab along with Muhammad Ahed Khan Cheema, DG, LDA/Respondent No.1, Malik Abdul Aziz Awan, Addl. A.G.

YLR 2017 LAHORE HIGH COURT LAHORE 1762 #

2017 Y L R 1762

[Lahore]

Before Ch. Muhammad Iqbal, J

Messrs TANVEER SPINNING AND WEAVING MILLS (PVT.) LTD. through Authorized Executive Director Finance---Petitioner

Versus

TARIQ SAEED through Shahzad Akber and 2 others---Respondents

Writ Petition No.7386 of 2017, decided on 20th March, 2017.

Punjab Rented Premises Act (VII of 2009)---

----S. 15---Ejectment of tenant---Second eviction petition---Maintainability---Rent agreement---Notice for vacation of premises---Time for vacation of tenements, grant of---Discretion of Court---Estoppel, principle of---Applicability---Reasonable time to vacate premises---Scope---Ejectment petition was filed on the ground of expiry of tenancy period---Application for leave to contest was dismissed and eviction petition was accepted and tenant was directed to hand over the demised premises to the landlord within thirty days---Appellate Court dismissed the appeal while granting six months time for vacation of demised premises---Validity---Second ejectment petition was maintainable on new cause of action---Rent agreement had expired and nothing was on record with regard to renewal or extension of the same---Landlord issued notice to the tenant for vacation of demised premises which was received by him---Mere filing of eviction petition in itself was a sufficient notice to the tenant for termination of rent deed---Tenant was cognizant about the rigors of legal proceedings, he should have made arrangement bona fidely for vacation of demised premises but no such effort was made---Tenant could not take stance with regard to non-service of notice regarding termination of rent agreement as well as vacation of demised premises, he was occupying the tenements despite the termination of tenancy and his status was not better than an illegal occupant---Law did not favour the illegal occupant---Grant of time for vacation of rented premises was discretionary jurisdiction of Court---Such discretion was interlinked with the previous as well as present conduct of tenant during judicial proceedings---Tenant was debarred to challenge the impugned order as principle of estoppel was applicable against him to resile from the earlier statement made in the judicial proceedings---Contumacious conduct tainted with malice had disentitled tenant for any discretionary relief---Four months time was reasonable for vacation of demised premises---Period of six months' awarded by the Appellate Court was not reasonable having no backing of Punjab Rented Premises Act, 2009 as well as any other law and same was not sustainable---Said period was reduced to four months' time commencing from the judgment of Appellate Court subject to payment of monthly rent as well as other bills of amenities installed at the rented premises---No illegality or material irregularity had been pointed out in the impugned orders/ judgments passed by the Courts below---Constitutional petition was partially allowed in circumstances.

Muhammad Shafi v. Haji Shaista Khan 2002 SCMR 480; Major (Retd.) Muhammad Yousaf v. Mehraj-ud-Din and others 1986 SCMR 751; Rahat Iqbal v. Allauddin and another 2010 MLD 1988; Munir Ahmed v. Shahid Mahmood 1994 SCMR 360; Khawaja Muhammad Razzak v. Dr. Sultan Mehmood Ghouri and another 2007 SCMR 1866; Mrs. Keays Byrne v. M. Obaidullah Khan PLD 1959 Lah. 146; Sattar v. Zaki Ahmad 1995 MLD 1146; New Trading Company v. Trustees of Haji Sir Abdullah Haroon Waqf No.1 1997 CLC 640 and Malak Zahoor-ul-Haq through Special Attorney v. IInd Addl. Judge, Sanghar and 2 others 2015 CLC 468 rel.

Malik Fida Hussain for Petitioner.

YLR 2017 LAHORE HIGH COURT LAHORE 1788 #

2017 Y L R 1788

[Lahore]

Before Mirza Viqas Rauf, J

Mrs. ISHRAT MALIK through Special Attorney---Appellant

Versus

JAMIL AHMAD MANJ and another---Respondents

Execution First Appeal No.926 of 2015, heard on 7th February, 2017.

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

----O. XXIII, R. 3---Compromise decree---Scope---Parties entered into compromise and suit was dismissed as withdrawn---Execution petition seeking execution of said order was moved wherein objection petition was filed which was dismissed---Contention of applicant was that suit was dismissed on the basis of a compromise and no decree was passed to be executed---Validity---Parties to the suit had entered into an agreement settling their dispute in terms thereof---Suit was dismissed in the light of compromise deed---No decree was passed on the basis of said compromise deed; had there any such decree been passed, even then same could be termed as a contract between the parties---Breach of said compromise (contract) would give cause of action to the aggrieved party to approach the court to seek remedy in terms thereof---Trial Court while proceeding with execution petition had erred in law and committed an irregularity---Impugned order was set aside---Respondents would be at liberty to institute a separate suit for redressal of their grievance, if any, arising out of alleged non-compliance of compromise deed---Appeal was allowed in circumstances.

Peer Dil and others v. Dad Muhammad 2009 SCMR 1268 and Muhammad Fazil v. Ch. Muhammad Ashraf (deceased) represented by His Legal Representatives and others PLD 1999 Lah. 1260 rel.

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

----S. 2(2)---'Decree'---Meaning---Decree follows the judgment and judgment is the statement given by the judge of the grounds of a decree or order.

----Question of jurisdiction being important should be decided in the first instance.

Ashfaq Qayyum Cheema for Appellant.

Rana Zulfiqar Khan for Respondents.

YLR 2017 LAHORE HIGH COURT LAHORE 1804 #

2017 Y L R 1804

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Syed Shahbaz Ali Rizvi, JJ

KHUDA BAKHSH---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No. 49-J and Murder Reference No.87 of 2012, heard on 22nd September, 2016.

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

----Ss. 302 (b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of about 1½ hours in lodging FIR---Effect---Fact remained that after the occurrence, the complainant by covering a distance of 7/8 miles proceeded to police station to report the matter, in such a situation, it could be termed as promptly lodged FIR.

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

----Ss. 302 (b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Ocular account---Prosecution witnesses fully supported the prosecution version on material aspects viz, time of occurrence, mode and manner of occurrence and the injuries ascribed to the accused---Occurrence had taken place in daylight coupled with the fact that parties were previously known to each other---Circumstances suggested that question of misidentification did not arise---Ocular account was absolutely in line with the story of FIR and as such fully supported the case of prosecution---Appeal against conviction was dismissed, however death sentence awarded to accused was reduced to life imprisonment.

----Ss. 302 (b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Related witness---Testimony of---Reliance---Complainant was admittedly real son of deceased but relationship of witnesses inter se or with the deceased, alone, could not be made basis to discard their testimony if otherwise the same was trustworthy, confidence inspiring and appealing to reason while corroborated by independent circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Medical evidence--Scope---Medical evidence in the present case had affirmed the locale/seat of injuries on the person of deceased, which also coincided with the time of occurrence---Medical evidence had also affirmed that injuries on the person of the deceased were caused by firearm weapon---Post-mortem of the deceased was conducted within eight hours, which itself ruled out the factum of any fabrication/concoction---Medical evidence was absolutely in line with the evidence of ocular account, which was sufficient to record conviction---Appeal against conviction was dismissed accordingly, however death sentence awarded to accused was reduced to life imprisonment.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account if corroborated by medical evidence was sufficient to record conviction---Other constituents/factors like recovery, blood-stained earth, report of chemical examiner, report of serologist, etc were always deemed to be corroborative piece of evidence.

Amal Sherin and another v. The State through A.G. N.W.F.P. PLD 2004 SC 371 and Anwarul Haq v. The State 2004 SCMR 252 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention--- Appreciation of evidence---Sentence, reduction in---Motive---Prosecution had alleged that occurrence was taken place due to the fact that wife of the accused had obtained a decree after filing a suit for dissolution of marriage---Admittedly accused had two sons out of the wedlock of his wife---Record showed that motive behind the occurrence was that the deceased was pursuing the case of his niece, wife of accused, and was instrumental in getting divorce---Possibility, in circumstances, could not be ruled out that the accused had committed the crime under the impulse of some psychological condition, which might have erupted in his mind due to breakage of family bond---Prosecution succeeded in establishing motive behind the occurrence, therefore accused did not deserve acquittal---Appeal against conviction was dismissed accordingly, however death sentence awarded to accused was reduced to life imprisonment.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Record showed that deceased was pursuing the case of his niece, wife of accused, and was instrumental in getting divorce---Accused had committed the crime under the impulse of some psychological condition, which might have erupted in his mind due to breakage of family bond, resulting into such state of mind as his whole family was abandoned because of decree of dissolution of marriage---Such circumstances might have directly or indirectly caused a negative impact, which actually influenced the accused to commit the offence---Circumstances of the case, therefore, had diminished the liability of accused---Appeal was dismissed with modification in his sentence from death to life accordingly.

Ch. Zaheer Abbas for Appellant.

Muhammad Jaffar, Deputy Prosecutor General for the State.

Sardar Khurram Latif Khan Khosa for the Complainant.

YLR 2017 LAHORE HIGH COURT LAHORE 1814 #

2017 Y L R 1814

[Lahore]

Before Jawad Hassan, J

Mst. SADAF and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

W.P. No. 25770 of 2014, decided on 9th February, 2017.

Family Courts Act (XXXV of 1964)---

----Ss. 9, 14 & Sched.---Dowry articles, entitlement to---Financial status of father of wife---Scope---Wife assailed order of Appellate court by which decree of Family Court to the extent of recovery of dowry articles in favour of wife was set aside---Wife contended that findings recorded by Family Court were corroborated through witnesses regarding contents of items, time of delivery, receipts of purchase and financial status of father of wife---Validity---Record showed that factum of handing over and receiving of dowry articles was also admitted from the side of husband, in such circumstances, the findings of Family Court in presence of tangible and corroborative piece of evidence, could not be brushed aside---Record showed through evidence of witnesses, that father of wife was running a shop for the last thirty years, therefore, it could not be presumed that dowry articles were not given to her at the time of marriage and it was sufficient that father of wife was in a position to give dowry articles---Normally, dowry articles were handed over along with the list to the parents of the male spouse at the time of Rukhsati---No doubt the courts were supposed to decide cases in accordance with law but in family cases particularly, the normal traditions of the society could not be ignored---Wife had succeeded to prove her claim for recovery of dowry articles by adducing confidence inspiring evidence and Appellate Court without referring anything from the record, had set aside judgment of Family Court---Order of Appellate Court was set aside and Constitutional petition was allowed accordingly.

Mst. Kishwar Sultana and another v. Muhammad Saddique and another 2009 CLC 61 ref.

A.D. Bhatti for Petitioners.

YLR 2017 LAHORE HIGH COURT LAHORE 1846 #

2017 Y L R 1846

[Lahore (Multan Bench)]

Before Aslam Javed Minhas, J

QASIM ALI---Appellant

Versus

The STATE and another---Respondents

Crl. Appeals Nos. 418 and 303 of 2009, heard on 5th October, 2015.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of about three months in reporting the matter to the Police, had not been plausibly explained---Both witnesses of last seen, not only were related inter se, but were maternal and paternal cousins of the complainant and the deceased, respectively---Said last seen evidence, was of no consequence to the prosecution, in circumstances---During the investigation, it came on record that deceased, was not a man of good character, and was habitual in committing zina with bad reputed girls---Witness of extra judicial confession, was given up by the prosecution, which had created some doubt---Deceased and accused, were fast friends and neighbours, but the prosecution witness had not stated that there was any enmity or grudge existed between the two friends---No motive was assigned to accused---Doctor who conducted the post mortem examination admitted that possibility could not be ruled out, that if the report of Chemical Examiner was excluded, the deceased had died his natural death---No injury was noticed on the body of the deceased---Witnesses before whom accused persons had allegedly made extra judicial confession, had been given up by the prosecution---All said circumstances, had made the case of the prosecution doubtful---If a single 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 passed by the Trial Court, was set aside; accused was acquitted of the charge, he being on bail, his bail bonds were discharged.

Tahir Javed v. The State 2009 SCMR 166 ref.

Shamsul Qamar Khan Khatak for Appellant.

Sardar Mehboob for the Complainant (in Criminal Appeal No.418 of 2009) and for Appellant (in Crl. A. No.303 of 2009).

Ch. Muhammad Akbar, D.P.G. for the State.

YLR 2017 LAHORE HIGH COURT LAHORE 1858 #

2017 Y L R 1858

[Lahore]

Before Aalia Neelum, J

MUHAMMAD ZEESHAN alias

PAPLA---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.1390 of 2014, heard on 28th November, 2016.

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

----Ss. 302, 337-A(ii), 337-H(2), 452 & 34---Qatl-i-amd, shajjah-i-mudihah, rash and negligent act, house trespass after preparation for hurt, assault or wrongful restraint, common intention---Appreciation of evidence---Consultation and deliberation in lodging FIR---Occurrence took place at 1.00 pm, while FIR was got registered on the written statement of complainant at 5.30 pm on the same day---Police station was situated only 6 kilometers away from the place of occurrence---Injury statement was prepared by Investigating officer at 1.30 pm---Medico-Legal Report of deceased showed that he, in injured condition was brought to hospital by police official at 2.15 pm---Medico-Legal Certificate was issued by doctor at 2.15 pm---Record showed that post-mortem examination of the dead body was conducted at 9.15 pm---Delay in conducting the post-mortem examination was not explained by the prosecution---FIR was lodged after a delay of four hours thirty minutes from the time of incident---Deceased who succumbed lastly was not mentioned in the application moved for the registration of FIR---Description of FIR was not mentioned in the inquest report---Absence of the FIR description in the inquest report and mentioning of the time and date regarding receiving information of the incident at 3.30 pm led to the conclusion that FIR was recorded with a delay and FIR had not been recorded at the time at which it was claimed to have been recorded, which created adverse inference, that the same was utilized for false implication of the accused, concoction of story and introduction of false witnesses---Circumstances showed that matter was not reported to the police with promptitude---No explanation had been given by the complainant in that respect, thus, the element of consultation and deliberation could not be ruled upon---Accused, in circumstances, was acquitted by setting aside the conviction and sentence recorded by Trial Court.

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

----Ss. 302, 337-A(ii), 337-H(2), 452 & 34---Qatl-i-amd, shajjah-i-mudihah, rash and negligent act, house trespass after preparation for hurt, assault or wrongful restraint, common intention---Appreciation of evidence---Allegations against accused persons were that they assaulted upon the house of injured "phuphu" of complainant and she was found in injured condition when complainant party reached there---Complainant party including deceased took the injured "phuphu" for medical treatment---Accused party, standing on the way, made straight fire shots, which hit on the forehead of deceased and they fled away---Ocular account was furnished by prosecution witnesses including complainant--- Prosecution witnesses deposed that accused made a straight fire shot which hit on the forehead of deceased, who fell down in injured condition---Prosecution witnesses took deceased in injured condition to the hospital, where doctor referred him to other hospital but on the way deceased succumbed to the injuries---Testimony of said witnesses was belied by medical as well as documentary evidence---Medico-legal report of deceased showed that injured was brought to hospital by police official and none else---Four crime empties of 12-bore gun were recovered from the place of occurrence but medical evidence showed that the dimension of injury on the person of the deceased was not result of 12-bore pump action gun---Prosecution case was that accused party assaulted upon the house of "phuphu" of complainant party and she received injuries during occurrence---Said injured lady was medically examined through police official after the delay of more than two months of the occurrence at 4.00 pm but injured deposed that she was relieved from the hospital after getting first aid at 1.00 pm---Said circumstances cast doubt on the evidence of prosecution witnesses relating to taking injured to hospital for medical treatment---Said witnesses having twisted the facts with regard to the mode and manner of the occurrence in order to rope the accused in the case, genuineness of the version given by the witnesses was doubtful---Accused, in circumstances was acquitted by setting aside the conviction and sentence recorded by Trial Court.

(d) Penal Code (XLV of 1860)

----S.302---Qatl-i-amd---Medical evidence---Reliance---Medical evidence could only indicate that the deceased had lost his life due to certain injuries but it did not lead to the culprit.

Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 rel.

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

----Ss. 302, 337-A(ii), 337-H(2), 452 & 34---Qatl-i-amd, shajjah-i-mudihah, rash and negligent act, house trespass after preparation for hurt, assault or wrongful restraint, common intention---Appreciation of evidence---Recovery of weapon of offence---Reliance---Weapon of offence (12-bore gun) along with two live cartridges was recovered on the disclosure of accused---Investigating Officer recovered crime empties of 12-bore from the place of occurrence---Report of Forensic Science Laboratory reflected that recovered 12- bore pump action was not in working condition, thus no incriminating recovery was available on record to connect the accused with the commission of offence---Accused was acquitted by setting aside conviction and sentence recorded by Trial Court.

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

----Ss. 302, 337-A(ii), 337-H(2), 452 & 34---Qatl-i-amd, shajjah-i-mudihah, rash and negligent act, house trespass after preparation for hurt, assault or wrongful restraint, common intention---Appreciation of evidence---Motive not proved---Motive set up by the prosecution in the written complaint and FIR was a scuffle few days prior to the occurrence on the drainage water---Brawl had taken place on the day of occurrence---Investigating officer of the case deposed that motive of the occurrence was not related to the deceased and prosecution witnesses---Dispute regarding drainage water was between co-accused and "phuphu" of the complainant party---No independent witness was produced by prosecution about the motive part of the occurrence---Circumstances established that motive as alleged, was an afterthought and had not been proved by any credible evidence---Even Investigating Officer had declared the accused to be innocent, which cast doubt on the prosecution case, benefit of which would resolve in favour of accused---Accused was acquitted in circumstances by setting aside conviction and sentences recorded by Trial Court.

(g) Criminal trial---

----Appreciation of evidence---If evidence of the prosecution was disbelieved about majority of the accused persons, same could not be believed regarding another accused in the absence of very strong corroboration.

Akhtar Ali and others v. State 2008 SCMR 6; Iftikhar Hussain and others v. The State 2004 SCMR 1185 and Muhammad Akram v. The State 2009 SCMR 230 rel.

(h) Criminal trial---

----Benefit of doubt---prosecution had failed to lead incriminating, corroborative/ independent evidence to bring home guilt of the accused---Benefit of doubt would be extended in favour of accused.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Shafqat Ali Sulehria for Appellant.

Muhammad Akhlaq, Deputy Prosecutor General for the State.

Javed Iqbal Raja for the Complainant.

YLR 2017 LAHORE HIGH COURT LAHORE 1909 #

2017 Y L R 1909

[Lahore]

Before Mahmood Ahmad Bhatti, J

JAHANGIR SIDDIQUE KHAN---Petitioner

Versus

SECRETARY MINISTRY OF DEFENCE GOVERNMENT OF PAKISTAN and 2 others---Respondents

W.Ps. Nos. 10941 and 102-R of 2011, heard on 16th February, 2015.

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

----S. 6 & Preamble---Constitution of Pakistan, Art.24---Forcible possession---Scope---Taking forcible possession of land and that too without making any compensation was alien to land acquisition laws; as such the same was abhorrent to the express provisions of Art. 24 of the Constitution.

(b) Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), S. 11---Constitutional petition---Res judicata, principle of---Applicability---Original allotment order (dated 30-10-1964), was upheld by High Court and Supreme Court---Such order of allotment could not be set aside just at the whims of Provincial Government or any government-Department---Earlier orders passed by competent Courts of law between same parties and relating to same subject matter constituted and operated as res judicata---High Court declined to interfere in the matter---Petition was dismissed in circumstances.

Nawabzada Zafar Ali Khan and others v. Chief Settlement Commissioner/ Member, Board of Revenue, Punjab, Lahore and others 1999 SCMR 1719; Government of Punjab, Colonies Depart-ment, Lahore and others v. Muhammad Yaqoob PLD 2002 SC 5; Member (S&R)/Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore and another v. Syed Ashfaque Ali and others PLD 2003 SC 132; Dr. Muhammad Iqbal and 9 others v. Member, Board of Revenue/Chief Settlement Commissioner, Lahore and another PLD 2010 Lah. 249; Abdul Majid and others v. Abdul Ghafoor Khan and others PLD 1982 SC 146 and Mst. Zainab through Attorney v. Mst. Muni and others 2004 SCMR 1786 ref.

Rana Nasrullah Khan for Petitioner.

Akhtar Qureshi for Respondents Nos. 1 and 2.

Muhammad Iftikhar-ur-Rashid A.A.G. and Muhammad Ahmad Bani for Respondent No.3.

YLR 2017 LAHORE HIGH COURT LAHORE 1944 #

2017 Y L R 1944

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi and Syed Shahbaz Ali Rizvi, JJ

KHIZER MEHMOOD---Petitioner

Versus

The STATE---Respondent

Criminal Appeals Nos.755 of 2010 and 172 of 2014 and Murder Reference No.94 of 2010, heard on 2nd November, 2015.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---No direct evidence was available with the prosecution to prove its case against accused---Case against accused, mainly being hinged upon the circumstantial evidence, utmost care and caution was required to reach at a just decision---Evidence of witness of last seen besides being pregnant with dishonest improvements, suffered from infirmity and improbabilities---Evidence of Wajjtakkar furnished by witnesses, was not believable; as self negating and contradictory statements of the Wajjtakkar reflected that said witnesses were not truthful, and were supporting the afterthought, fabricated and concocted story, meant to create incriminating evidence to strengthen the case of an un-witnessed occurrence against accused---Place where accused and his co-accused went to make joint extrajudicial confession, was the house of given up prosecution witness; and such confession, was made in presence of other accused---Seat of injuries, and manner of fire shots had not been narrated in the alleged extra judicial confession---Evidence of extra judicial confession furnished by the prosecution witness, was not reliable, trustworthy, as same was an afterthought; and was fabricated to the prosecution case---Motive, was doubtful---Crime weapon .30 bore pistol, was recovered from the house jointly occupied by accused, which cast doubt about its veracity---Evidence produced to connect accused with the alleged offence of murder, was not free from doubt, being improbable and untrustworthy---Many links were missing from the chain of the circumstantial evidence---Prosecution failed to discharge its responsibility of proving the case against accused---Prosecution having failed to prove its case against accused and his acquitted co-accused, beyond the shadow of doubt; conviction and sentence recorded by the Trial Court, were set aside; accused was acquitted of the charge by extending him the benefit of doubt, and was ordered to be released.

Imran alias Dully and another v. The State and others 2015 SCMR 155; Israr Ali v. The State 2007 SCMR 525 and Nasir Mehmood and another v. The State 2015 SCMR 423 ref.

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

----S. 302(b)---Medical evidence---Scope---

Medical evidence, could confirm the other available evidence with regard to the seat and nature of injury, the kind of weapon used in the occurrence, but it would not itself identify accused.

Muhammad Tasaweer v. Hafiz Zulkarnain and others PLD 2009 SC 53; Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 ref.

----Circumstantial evidence---Scope---Every circumstance; should be linked with each other; and it should form such a continuous chain that its one end touched the dead-body, and other neck of accused---If any link of the chain was missing the benefit must go to accused.

Sarfraz Khan v. The State 1996 SCMR 188 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 ref.

(d) Criminal trial---

----Benefit of doubt---Prosecution had to prove its case against accused by standing on its own legs; and it could not take any benefit from the weakness of the case of the defence---If there was a single circumstance which would create reasonable doubt regarding the culpability of accused, same was sufficient to extend its benefit to him.

Tariq Pervez v. The State 1995 SCMR 1345 ref.

Malik Muhammad Rafiq Khan for Appellant.

Fakhar Hayat Awan for the Complainant.

Qaiser Mushtaq, Assistant District Public Prosecutor along with Babar, SI for the State.

YLR 2017 LAHORE HIGH COURT LAHORE 1972 #

2017 Y L R 1972

[Lahore]

Before Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

SHAHID and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.2744, 2838, 2835 and Murder Reference No.642 of 2010, heard on 2nd September, 2015.

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

----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment---Rioting, common object---Appreciation of evidence---Benefit of doubt---FIR was lodged with a considerable delay after due deliberation, consultation and making preliminary inquiry---Medical evidence contradicted ocular account---Deposition of both the eye-witnesses before the court, seemed to be unnatural---Prosecution version was discarded having no reliability---Presence of eye-witnesses at the time and place of occurrence had become highly doubtful, and their evidence being chance witnesses, contained no credence---Testimony of such chance witnesses, could not be accepted---Eye-witnesses being close relatives of the deceased, their testimonies could not be satisfactorily relied upon, especially when their evidence was full of contradictions---Evidence of eye-witnesses, was not in line with medical evidence---Prosecution having withheld the best available evidence, adverse inference under Art.129(g) of Qanun-e-Shahadat, 1984, to the effect that they would not have supported the prosecution case, could fairly be drawn against the prosecution---Strong contradiction existed in between scaled site plan prepared by the Draftsman, and rough site plan prepared by Investigating Officer---Deposition of the Investigating Officer with regard to recoveries of two crime empties from the place of occurrence, was not in line with the inquest report---Crime empties, sent to Forensic Science Laboratory, did not matched with the gun recovered from accused persons---Said recoveries did not carry any weight---Motive as alleged by the prosecution, had not been proved---Evidence produced by prosecution against co-accused with regard to abetment, had already been disbelieved by the Trial Court---Prosecution having failed to prove its case against accused persons beyond any reasonable doubt, their conviction and sentence were set aside, while granting them the benefit of doubt, and they were acquitted and released in circumstances.

Iftikhar Hussain and others v. The State 2004 SCMR 1185; Muhammad Rafique v. The State 2014 SCMR 1698, Muhammad Rafique and others v. The State and others 2010 SCMR 385; Hadayatullah v. Abdul Hameed and another 1984 SCMR 119; Abid Ali and 2 others v. The State 2011 SCMR 208; Amin Ali and another v. The State 2011 SCMR 323; Nasima Bibi v. The State through Advocate-General and another 2008 PCr.LJ 613; Muhammad Rafique and others v. The State and others 2010 SCMR 385; Lal Khan v. The State 2006 SCMR 1846; Nadeem alias Nanha alias Billa Sher v. The State 2010 SCMR 949; Abid Ali and 2 others v. The State 2011 SCMR 208; Muhammad Ahmad (Mahmood Ahmed) and another v. The State 2010 SCMR 660; Ayub Masih v. The State PLD 2002 SC 1038; Muhammad Akram v. The State 2009 SCMR 230; Muhammad Afzal v. The State 2015 PCr.LJ 111 and Muhammad Rafique v. The State 2014 SCMR 1698 rel.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 ref.

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

----S. 302(b)---Qatl-i-amd---Once the motive was established by the prosecution, it had to be proved by the same, otherwise, adverse inference would be drawn---Prosecution, though was not under obligation to establish a motive in every murder case, but, if prosecution would set up a motive and failed to prove it, then it was the prosecution who was to suffer and not the accused.

Noor Muhammad v. The State and another 2010 SCMR 97 rel.

----Benefit of doubt---Principle---Court should let off 100 guilty, but should not convict one innocent person.

Ayub Masih v. The State PLD 2002 SC 1048 ref.

Azam Nazeer Tarar for Appellants.

Hamayoun Aslam, Deputy Prosecutor General and Fahad-ur-Rehman Tipu Zafar for Respondents.

YLR 2017 LAHORE HIGH COURT LAHORE 1999 #

2017 Y L R 1999

[Lahore (Multan Bench)]

Before Syed Muhammad Kazim Raza Shamsi and Farrukh Gulzar Awan, JJ

MUHAMMAD TARIQ and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 782 of 2011 and 1105 of 2010 and Murder Reference No.220 of 2010, decided on 23rd February, 2016.

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

----Ss. 302, 324 & 337-A---Criminal Procedure Code (V of 1898), Ss. 265-C, 161 & 164---Qanun-e-Shahadat (10 of 1984), Art. 129---Qatl-i-amd; attempt to commit qatl-i-amd; Shajjah, etc.---Appreciation of evidence---Benefit of doubt---Supply of statement and documents to accused---Requirement---Court may presume certain facts---None of the eye-witnesses could identify the number of fire shots attributed to any of the accused---Complainant had claimed that all the injuries on the person of the deceased were bullet injuries caused from front side---Medical expert had admitted during cross-examination that the injuries were result of pellet----Pictorial diagram showed that said injuries were caused from back side---Prosecution witness, police official, had also admitted that he had observed that the deceased had sustained the injuries on back side of his leg---Eye-witnesses' account, therefore, stood contradicted from the medical evidence---Scaled site plan showed the distance between the accused and the injured prosecution witnesses to be 22 feet; whereas, blackening of the injuries observed during medical examination suggested that the injuries had been sustained within distance of 2 to 3 feet---Medical evidence, therefore, did not corroborate the oral prosecution version, which cast serious doubt about the mode and manner of the occurrence---None of the eye-witnesses could identify the number of bullets fired by the accused---Prosecution witnesses, police official could not show that the parcels of recovered weapons of offence had been transmitted to the office of Forensic Science Laboratory---Prosecution witness, police Head Constable, deposed that his statement under S. 161, Cr.P.C. had been recorded during the investigation regarding handing of the parcels of the weapons, but said statement had neither been provided to the accused under S.265-C, Cr.P.C., nor was the same found on the police file--¬-Transmission of weapons of offence to the Ballistic Expert, having been shrouded in mystery, the positive report of the Ballistic Expert could not be used against the accused---Report of Ballistic Expert to the extent of rifle 7-MM for its matching with the crime empties was although positive, but the same was inconsequential for failure to prove its deposit to the office of Ballistic Expert beyond any shadow of doubt---Motive was not directly attributed to the accused---Motive, even otherwise, if taken as correct, would not improve the prosecution case in view of non-availability of convincing ocular account---Eye-witnesses had suppressed the certain fact as to recovery of 222-bore rifle, which raised the presumption under Art. 129 of Qanun-e-Shahadat, 1984---Prosecution had failed to prove the case beyond reasonable doubt---High Court, extending benefit of the doubts, acquitted the accused persons---Appeal was allowed accordingly.

Nadeem Ahmad Khan and others v. The State 2007 PCr.LJ 233 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

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

----Ss. 265-C, 161 & 164----Supply of statement and documents to accused---Requirement---Accused has the statutory right under S. 265-C, Cr.P.C. to be provided with the statements of all witnesses recorded under Ss. 161 & 164, Cr.P.C., and omission to comply with said provision would vitiate the whole trial, as the accused, without having recourse to the record, would not be in a position to set up his defence.

Nadeem Ahmad Khan and others v. The State 2007 PCr.LJ 233 rel.

Rana Muhammad Nadeem Kanju for Appellants.

Appellant in person on bail.

Ch. Muhammad Akram for the Complainant.

Malik Riaz Ahmad Saghla, Deputy Prosecutor General for the State.

YLR 2017 LAHORE HIGH COURT LAHORE 2024 #

2017 Y L R 2024

[Lahore]

Before Ali Akbar Qureshi, J

IRSHAD AHMAD and another---Petitioners

Versus

USAMA HASSAN and others---Respondents

C.R. No.946 of 2007, heard on 8th December, 2015.

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

----S. 8---Qanun-e-Shahadat (10 of 1984), Arts. 17(2) & 79---Suit for possession of immovable property---Plaintiffs had not produced marginal witnesses of sale deed to fulfil the mandatory requirement of Arts. 17(2) & 79 of Qanun-e-Shahadat, 1984---Even buyer and identifier were not produced in the court---Plaintiffs had failed to prove their title and they were not entitled for recovery of possession under S. 8 of Specific Relief Act, 1877---Sale deed on the basis of which suit was filed was not admissible in law---Impugned judgments and decrees passed by the courts below were set aside and suit was dismissed---Revision was allowed in circumstances.

Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others PLD 2011 SC 241; Manzoor Ahmad and 9 others v. Ghulam Nabi and 5 others 2010 CLC 350; Mst. Resham Bibi and others v. Lal Din and others 1999 SCMR 2325; Khan Mir Daud Khan and others v. Mahrullah and others PLD 2001 SC 67; Mst. Ramzan Bibi v. Additional District Judge and others 1995 CLC 1506; Mst. Zubaida v. City District Government, Karachi PLD 2004 Kar. 304; Abdul Rashid v. Muhammad Yaseen and another 2010 SCMR 1871 and Mst. Shah Sultan and 45 others v. Chief Commissioner of Islamabad and 5 others 2004 CLC 145 ref.

Ali Muhammad and another v. Muhammad Bashir and another 2012 SCMR 930; Hazrat Ullah and others v. Rahim Gul and otheres PLD 2014 SC 380 and Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187 rel.

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

----S. 115---Revisional jurisdiction of High Court--- Scope--- Concurrent findings recorded by the courts below could be interfered by the High Court if same were based on insufficient evidence, mis-reading of evidence, non-consideration of material evidence, erroneous presumption of facts and consideration of inadmissible evidence.

Muhammad Aslam v. Mst. Ferozi and others PLD 2001 SC 213 rel.

Naveed Sheharyar Shaikh for Petitioners.

Syed Muhammad Shah for Respondents.

YLR 2017 LAHORE HIGH COURT LAHORE 2085 #

2017 Y L R 2085

[Lahore (Rawalpindi Bench)]

Before Qazi Muhammad Amin Ahmad and Raja Shahid Mehmood Abbasi, JJ

RAHEEM ULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.173-J and Murder Reference No.143 of 2010, heard on 2nd February, 2016.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Dead body of child was recovered from the Baithak of accused after midnight, who was sodomized, and thereafter done to death---Accused was in exclusive possession of said Baithak---Last seen evidence produced by the prosecution, which was consistent, was fully corroborated by other limbs of evidence and medical evidence---Out of two witnesses of last seen, one was not produced by the prosecution---Other witness of last seen, who was 'Mamoon' (maternal uncle) of the deceased, in absence of any animosity or motive for false implication of accused, could not be termed as an 'interested witness'---Evidence furnished by said witness was natural---Defence could not bring on record any motive for false implication of accused---Prosecution further proved the positive potency test of accused by producing a Doctor, who proved the same---Prosecution produced overwhelming circumstantial evidence that minor was last seen in the company of accused---Prosecution having fully proved case against accused, sentences awarded to accused by the Trial Court, including sentence of death, were upheld, Murder Reference was answered in affirmative---Appeal filed by accused was dismissed, in circumstances.

Sheraz Tufail v. The State 2007 SCMR 518; Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 and Jafar Ali v. The State 1998 SCMR 2669 ref.

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

----S. 302(b)---Qatl-i-amd---Last seen evidence---Last seen evidence was weakest type of evidence, and not sufficient for establishing the crime, but, if the chain of facts; was such that no reasonable inference could be drawn, except that accused had committed the offence after the victim had been last seen in his company; then in absence of reasonable explanations from accused, such evidence/last seen evidence; could be relied upon for convicting accused for the offence.

Khursheed v. The State PLD 1996 SC 305 rel.

Raja Ghaneem Aabir Khan and Raja Amanat Ali Khan for Appellant.

Mirza Muhammad Usman, D.P.G. with Pervaiz Iqbal S.I. for the State.

Nemo for the State.

YLR 2017 LAHORE HIGH COURT LAHORE 2101 #

2017 Y L R 2101

[Lahore (Multan Bench)]

Before Qazi Muhammad Amin Ahmed and Ch. Mushtaq Ahmad, JJ

MUHAMMAD KHALID---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.826 of 2011 and Murder Reference No. 60 of 2010, decided on 6th September, 2016.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt--- Extra-judicial confession---Scope---Complainant had alleged that his real brother along with co-accused had committed murder of his daughter---Accused had made joint extrajudicial confession before the prosecution witnesses including father of deceased---Father of the deceased would not make a false statement against his real brother, nonetheless, in dispensation of criminal justice, mere credentials or status of a witness could not form the basis for acceptance of his testimony---Evidence of extra-judicial confession furnished by the prosecution witnesses warranted scrutiny and examination on the touchstone of probability, notwithstanding, the inter-se relationship between the accused and the prosecution witnesses---No evidence was available even to obliquely frame the accused with the charge---Statements of prosecution witnesses were not in line with each other---Story of extrajudicial confession was seemingly a usual exercise undertaken by the police invariably in every case lacking direct evidence---Both the accused were shown to have made confession in a joint session and as such, a joint disclosure could not be read in evidence being inadmissible to their detriment--- Attending circumstances suggested doubt about the veracity of the prosecution story, benefit of which resolved in favour of accused---Conviction on the basis of extrajudicial confession without corroboration could not be awarded---Accused were acquitted and conviction and sentence recorded by Trial Court were set-aside in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Last seen evidence---Scope---Prosecution witnesses had alleged that they had seen the deceased child in the company of accused and co-accused while heading towards place of occurrence---Natural and obvious response of the said prosecution witnesses would have been to share such information with the family of the deceased---Pointing out of place of occurrence did not constitute valid disclosure---Doubt was created, in circumstances, benefit of which would be given to the accused---Accused were acquitted and conviction and sentence recorded by Trial Court were set-aside accordingly.

----Circumstantial evidence--- Scope---Prosecution was required to constitute a chain of circumstances, inexorably linked with one another to establish a nexus between the crime and the culprit, synchronized in such a way whereby every hypothesis of innocence stood excluded.

Tanveer Haider Buzdar and Mehar Afzal Hussain for Appellants.

Ahmad Raza for the Complainant.

Malik Riaz Ahmad Saghla, Deputy Prosecutor General, Punjab for the State.

YLR 2017 LAHORE HIGH COURT LAHORE 2111 #

2017 Y L R 2111

[Lahore (Rawalpindi Bench)]

Before Ibad-ur-Rehman Lodhi, J

IFTIKHAR ALI MALIK and 3 others---Petitioners

Versus

GOVERNMENT OF PAKISTAN, MINISTRY OF DEFENCE through Secretary Defence, Rawalpindi and 3 others---Respondents

Writ Petition No.1479 of 2012, heard on 9th January, 2017.

Cantonments Land Administration Rules, 1937---

----Sched. IX-C---Lease deed, conversion of---Grievance of petitioners was that they applied to the authorities for grant of commercial leases in year, 2007, therefore, they had to be charged for such premium and other charges in view of the policy---Validity---Cantonment Board had sanctioned site-plan for commercial building in favour of petitioner vide resolution dated 23-6-2006 and subsequent thereto, the building had been erected and the same was being charged for the purposes of property tax by Cantonment authorities---High Court set aside orders in question as demand of excessive amount by authorities was declared illegal and without lawful authority---Authorities were directed to proceed accordingly and final order be passed within next 30 days positively for conversion of old grant lease into regular lease in Sched. IX-C of Cantonment Land Administration Rules, 1937 for commercial purposes, as requisite amount was already deposited by petitioners with Cantonment Board---Constitutional petition was allowed accordingly.

Sh. Zamir Hussain for Petitioners (in W.P. No.1480 of 2012).

Mujeeb-ur-Rehman Kiani for Petitioner (in W.P. No.3320 of 2012).

Ch. Muhammad Masroof, Standing Counsel for Federation of Pakistan.

Ch. Muhammad Yaqoob, Cantonment Board for Respondents.

YLR 2017 LAHORE HIGH COURT LAHORE 2135 #

2017 Y L R 2135

[Lahore (Bahawalpur Bench)]

Before Zafarullah Khan Khakwani, J

Mst. SUMERA BANO---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE/APPELLATE AUTHORITY and others---Respondents

W.Ps. Nos.8771 and 8571 of 2015, decided on 24th November, 2015.

(a) Punjab Local Government (Conduct of Elections) Rules, 2013---

----Rr. 12 & 16---Punjab Local Government Act (XVIII of 2013), S.27(2)---Election for local government---Joint candidature of Chairman and Vice-Chairman of Union Council---Withdrawal of one member from the panel---Procedure---Audi alteram partem, principle of---Applicability---One of the member of panel of Chairman and Vice-Chairman withdrew his nomination papers and Returning Officer rejected the nomination papers of other member of the panel also---Validity---Where candidates for the election of Chairman and Vice-Chairman were bound to file nomination papers after signing by both of them then any member of the said panel could not withdraw his nomination papers individually---Notice of withdrawal ought to have been sent by both the candidates after signing and not by any one of them---Nomination papers filed by the panel of joint candidature of Chairman and Vice Chairman could not be withdrawn by a single member of the panel---Order for withdrawal of nomination papers by one candidate of panel was set aside---Returning Officer was directed to issue revised list of contesting candidates inserting name of candidate who withdrew his nomination papers---Constitutional petition was allowed in circumstances.

(b) Punjab Local Government (Conduct of Elections) Rules, 2013--

----R. 14(7)---Election for local government---Non-signing of part of nomination papers---Effect---Defect not of a substantial nature---Nomination papers were rejected by the Returning Officer on the ground that some part of the same was not signed by the candidate but appellate authority accepted same---Validity---Returning Officer could not reject nomination papers on any defect which was not of substantial nature---Candidate should be allowed to remove a defect of procedural nature such as an error---Omission of signatures on some part of the nomination papers---Such omission was clerical mistake and was condonable---Appellate authority had rightly accepted the nomination papers---Constitutional petition was dismissed in circumstances.

----Provision of a statute should be read as a whole and while interpreting the same court should keep in mind the intention of legislature to promulgate the law.

(d) Interpretation of statutes---

----Various provisions of law had to be read together and not in isolation---No part of a section of a statute be read in isolation without making reference to other parts of same section.

(e) Interpretation of statutes---

----Interpretation of a provision of law should be harmonious---Court should adopt such interpretation of provision of law which might give meaning of each word of an enactment taking into consideration the spirit of such piece of legislation.

(f) Interpretation of statutes---

----Interpretation whereby any portion of an enactment had rendered ineffective should not be adopted when clear meanings could be given to various provisions of an enactment in a harmonious manner---Such interpretation should not lead to contradictory or derisive consequences and a provision of law had to be interpreted in a manner more conducive to the interest of justice.

A. R. Aurang Zeb for Petitioner as also for Respondent No.5 (in Writ Petition No. 8571 of 2015).

Zafar Iqbal Awan, for Respondents Nos. 13 and 14 in instant Petition as also for the Petitioners (in W.P. No. 8571 of 2015).

YLR 2017 LAHORE HIGH COURT LAHORE 2173 #

2017 Y L R 2173

[Lahore]

Before Ali Akbar Qureshi, J

ASIF IQBAL---Petitioner

Versus

AMAN ULLAH and 2 others---Respondents

R.S.A. No.331 of 2016, decided on 23rd December, 2016.

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

----S. 12---Transfer of Property Act (IV of 1882), S. 52---Suit for specific performance of agreement to sell---Lis pendens, doctrine of---Applicability---Suit land was further transferred during the pendency of suit---Suit was decreed concurrently--- Validity--- Transferee purchased the suit land during pendency of civil suit---Rule of lis pendens was applicable in the case---Transferee could not bring on record that precautionary measures were taken by him before purchasing the land in question---Mere inquiring from the revenue officials was not sufficient to prove the stance of bona fide purchaser for consideration without notice---Transferee who purchased the suit land during pendency of suit was not entitled to defend the suit independently---Transferee had failed to prove his stance of bona fide purchaser---Transaction during pendency of suit was subject to final outcome of the suit---Transferee had to swim and sink with his original vendor---Agreement to sell had been proved by the plaintiff---No illegality had been pointed out in the findings recorded by the Courts below while decreeing the suit---Second appeal was dismissed in limine.

Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905; Usman v. (1) Haji Omer Haji Ayub, and (2) Haji Razzak PLD 1966 SC 328; Mst. Allah Ditti v. Settlement and Rehabilitation Commissioner, Lahore and 3 others PLD 1966 (W.P.) Lah. 659; Australasia Bank Ltd. Lahore v. Bashir Barton Stores, Sargodha and 2 others PLD 1971 Lah. 133; Ali Shan and another v. Sher Zaman and 8 others PLD 1975 Lah. 388; Shukri and 3 others v. Ch. Muhammad Shafi Zaffar and 2 others PLD 1975 Lah. 619; Muhammad Jan Ghaznavi v. Captain Haji Muhammad Kabir and 3 others PLD 1977 Quetta 60; Malik Muhammad Iqbal v. Ghulam Muhammad and others 1990 CLC 670; Industrial Development Bank of Pakistan through Deputy Chief Manager v. Saadi Asmatullah and others 1999 SCMR 2874; Mukhtar Baig and others v. Sardar Baig and others 2000 SCMR 45; Muhammad Sabir Khan and 13 others v. Rahim Bakhsh and 16 others PLD 2002 SC 303; Muhammad Nawaz Khan v. Muhammad Khan and 2 others 2002 SCMR 2003; Muhammad Anwar Khan v. Habib Bank Ltd. and 4 others 2005 CLD 165; Muhammad Afzal v. Matloob Hussain and others PLD 2006 SC 84; Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others 2012 SCMR 983; Muhammad Afzal v. Matloob Hussain and others PLD 2006 SC 84 and Hafiz Iftikhar Ahmed and 3 others v. Khushi Muhammad and another 2014 CLC 1689 rel.

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

----S. 52---Lis pendens, doctrine of---Applicability---Rule of lis pendens would apply till the final adjudication which was given in an appeal or revision at the final level of judicial hierarchy.

Maulana Riazul Hassan v. Muhammad Ayub Khan and another 1991 SCMR 2513 rel.

YLR 2017 LAHORE HIGH COURT LAHORE 2194 #

2017 Y L R 2194

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

CHIEF ADMINISTRATOR OF AUQAF PUNJAB, LAHORE---Appellant

Versus

MUHAMMAD AMIN---Respondent

F.A.O. No.68 of 2000, heard on 1st December, 2016.

(a) Punjab Waqf Properties Ordinance (XXVIII of 1961)---

----Ss. 6 & 7---Punjab General Clauses Act (VI of 1956), S. 2 (41)---Acquisition of property as waqf property---Notification not published in the Official Gazette---Effect---Petition against declaring the property as waqf property was filed which was accepted---Validity---Notification in question was not published in the Official Gazette at the relevant time rather published on 06-01-1993---Proposed notification issued by the department on 23-08-1992 was having no legal value and same could not be enforced through any judicial proceedings as before the publication, same had no substance---Claim of petitioner before the District Judge by challenging notification dated 23-08-1992 could not be adjudicated upon by a Court of law---No relief was available to the petitioner with reference to the notification published in the year 1993 in the Official Gazette---Trial Court had not only set aside the notification dated 23-08-1992 but also subsequent notification published in the Official Gazette on 06-01-1993---Relief qua notification dated 06-01-1993 was an excessive relief than that of one claimed by the petitioner in his petition---Impugned order to such extent was result of illegality and in excess of jurisdiction---Petition moved before the District Judge was declared to be defective one and no proceedings were required to be initiated on such petition---Findings recorded by the Trial Court were based on erroneous consideration which were not sustainable in the eye of law and same were set aside---Petition filed by the petitioner before the District Judge was dismissed---Appeal was allowed in circumstances.

(b) Notification---

----Notification not published in the Official Gazette had no legal sanctity.

Muhammad Suleman and others v. Abdul Ghani PLD 1978 SC 190 and Government of the Punjab, Food Department through Secretary Food and another v. Messrs United Sugar Mills Ltd., and another 2008 SCMR 1148 rel.

Ihsan Sabri Chaudhary for Appellant.

Ch. Abdul Salam for Respondent.

YLR 2017 LAHORE HIGH COURT LAHORE 2229 #

2017 Y L R 2229

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD YOUNAS and another---Petitioners

Versus

GHAZANFAR ABBAS and 12 others---Respondents

C.R. No.3745 of 2014, heard on 2nd March, 2016.

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

---S. 42---Qanun-e-Shahadat (10 of 1984), Arts. 87, 100 & 129 (g)---Evidence Act (I of 1872), Ss. 76 & 68---Registration Act (XVI of 1908), S. 60---Suit for declaration--- Limitation--- Inheritance---Gift deed---Proof---Procedure---Document more than 30-years old---Scope---Fraud---Effect---Contention of plaintiffs was that gift deed in favour of defendants was based on fraud---Suit was dismissed by the Trial Court but same was decreed by the Appellate Court---Validity---Mere factum that signatures of Secretary Union Council as well as Nazim appeared on the death certificate of donor was not sufficient to hold that said document was admissible in evidence until original record was presented before the Trial Court to compare with the same---Neither Secretary Union Council nor Nazim who put their signatures on the death certificate were brought to the witness-box to prove the contents of said document---Copy of death certificate was to be taken out of consideration---Production of document on record and its proof were two independent aspects---Death certificate could not be treated to be attested copy only for the reason that same was signed by the Secretary/Nazim---No appending certificate on the said document was available which could satisfy that it was a correct copy of the original---Mere fact that no objection was taken to said certificate at the time of its exhibition would not make the same admissible in evidence which otherwise could not be admitted under the law---Defendants had withheld the best evidence which was available to them in the shape of Custodian of Register of death entries and an adverse inference would be drawn against them---Copy of death entry was not copy of judicial record which could not be received in evidence without the proof of signatures and writing of the person alleged to have signed or written the same even if such documents brought on record were exhibited without objection---Whenever execution or validity of a registered document was denied then such document would lose sanctity of being presumed to be correct---Veracity of such document would depend upon quantum and quality of evidence to be produced to prove its execution---Only restricted presumption would attach that registration proceedings were regularly and honestly carried out by the attesting officer---Said presumption attached to its certificate was always rebutable---Whenever execution of an instrument was denied then such presumption was deduced to have been sufficiently rebutted---Onus to prove that document was executed and transaction did take place would lie upon the person who had alleged said execution---Presumption in favour of a registered instrument did not dispense with the necessity of showing that person who admitted the execution before the attesting officer was not an imposter but the same person---Alleged gift deed was executed prior to the promulgation of Qanun-e-Shahadat, 1984---Only one attesting witness was sufficient to prove the execution/attestation of impugned gift deed---Defendants produced one attesting witness of said deed in the witness-box and got recorded his statement-in-chief but he was not produced for cross-examination---Statement without cross-examination would not carry any weight---Neither Stamp Vendor, Deed Writer and Identifier of donor were produced nor Sub-Registrar was got examined who could be star witnesses to prove that executant had appeared for purchase of stamp paper who got executed the gift deed and after due identification and verification instrument was validly attested---Beneficiaries/ defendants had failed to prove the transaction of gift independently through sufficient material---Admissibility of document and evidentiary value of the same having a life of more than 30-years were two different aspects---Document more than 30-years old was admissible without production of the marginal witnesses or the executant of the same but court was not required to presume contents of such documents to be true---Impugned gift deed was procured while practicing fraud, misrepresentation and impersonation---Every legal heir would become co-owner in the legacy of his predecessor as soon as he died irrespective of the fact whether entries in the revenue record with regard to an agricultural land were made in their names or not---Cogent, tangible and un-rebutted evidence was required to oust a co-owner from the joint corpus of an undivided immovable property which was lacking in the present case---Neither limitation nor conduct of plaintiffs could estop them from claiming their legal share---Mere passage of time did not extinguish inheritance rights of plaintiffs---Every new entry in the revenue record on the basis of fraudulent instrument would give rise to a fresh cause of action---Present suit could not be declared to be time barred---Appellate Court had correctly appreciated the evidence of the parties while decreeing the suit---No illegality, perversity or jurisdictional defect had been pointed out in the impugned judgments and decrees passed by the Appellate Court---Revision was dismissed with cost throughout.

Muhammad Rustam and another v. Mst. Makhan Jan and others 2013 SCMR 299; Noor Din and another v. Additional District Judge, Lahore and others 2011 SCMR 513; Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212; Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others PLD 2014 SC 167 and Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs PLD 2011 SC 657 distinguished.

The Commissioner of Sales Tax and Income Tax, Rawalpindi Zone, Rawalpindi v. Messrs Pakistan Television Corporation Ltd., Rawalpindi PLD 1978 Lah. 1027; Mehboob Ali and another v. Mst. Sharifan Bibi and 21 others 1991 CLC 1201; Muhammad Aslam and another v. Senior Civil Judge, Gujrat (Mian Nisar Hussain) and 2 others 2000 MLD 1581; Mina Bibi v. Manak Khan and others 2013 CLC 115; Muhammad Yousaf Khan v. S.M. Ayub and 2 others PLD 1973 SC 160; Muhammad Akram and another v. Mst. Farida Bibi and others 2007 SCMR 1719; Abdul Ghafoor and others v. Mukhtar Ahmad Khan and others 2006 SCMR 1144; Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245; Gopal Das v. Siri Thakir Gee and others AIR 1943 P.C. 83; Siraj Din v. Jamila and another PLD 1997 Lah. 633; Allah Dad and 3 others v. Dhuman Khan and 10 others 2005 SCMR 564; Jang Bahadar and others v. Toti Khan and another 2007 SCMR 497; Abdul Rahim and another v. Mrs. Jannatay Bibi and 13 others 2000 SCMR 346; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Khair Din v. Mst. Salaman and others PLD 2002 SC 677 and Lal and another v. Muhammad Ibrahim 1993 SCMR 710 rel.

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

----Art. 87---Certified copy of public document---Every Public Officer having custody of public document which any person had a right to inspect should give copy of it on payment of legal fee---Certificate written at the foot of said document that it was a true copy of the original record or part thereof would be called certified copies---Object of said certificate was to ensure that it was a true copy.

----S. 52---Lis pendence, doctrine of---Scope---Document prepared during the pendency of lis would be hit by the rule of lis pendence and on such score same could neither be relied upon nor considered---Doctrine of lis pendence was based on equity, good conscience and justice.

(d) Maxim---

----"Pendente lite nihil innovetur"---Meaning---Pending a litigation, nothing new should be introduced.

(e) Registration Act (XVI of 1908)--

----S.60---Qanun-e-Shahadat (10 of 1984), Arts. 87, 100 & 129(g)---Certificate of registration---Public document---Proof---Certified copy of public document---Presumption---Scope---Whenever execution or validity of a registered document was denied then such document would lose sanctity of being presumed to be correct---Veracity of such document would depend upon quantum and quality of evidence to be produced to prove its execution---Only restricted presumption would attach that registration proceedings were regularly and honestly carried out by the attesting officer---Said presumption attached to its certificate was always rebutable---Whenever execution of an instrument was denied then such presumption was deduced to have been sufficiently rebutted---Onus to prove that document was executed and transaction did take place would lie upon the person who had alleged said execution---Presumption in favour of a registered instrument did not dispense with the necessity of showing that person who admitted the execution before the attesting officer was not an imposter but the same person.

Mushtaq Ahmad Mohal and Anwaar Hussain Janjua for Petitioners.

Muhammad Iqbal Akhtar and Ahmad Ikram for Respondents Nos. 1 and 8.

YLR 2017 LAHORE HIGH COURT LAHORE 2251 #

2017 Y L R 2251

[Lahore]

Before Abdul Sami Khan and Miss Aaliya Neelum, JJ

MUHAMMAD SALEEM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.362-J of 2011 and Murder Reference No.31 of 2012, heard on 22nd June, 2016.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Complainant had alleged that he, along with his son and two other persons were going to other side of village, when they reached in agricultural land of another person two accused persons appeared from bushes and murdered complainant's son---Motive was that deceased had abused the accused---FIR was lodged with a delay of eight hours and fifteen minutes while distance between police station and place of occurrence was 5-kilometers---Ocular account alleged that deceased died at the spot after sustaining firearm injuries but Medico Legal Report showed a duration of 30-40 minutes between receipt of injuries and time of death of deceased---Complainant failed to mention any source of light in which he and other eye-witness identified assailants from a distance of 38/39 feet---Ocular account had alleged that deceased was shot from a distance of 33-feet but Medico Legal Report stated that injury to deceased was caused from a distance of about 3-feet---Injury attributed to co-accused was an exit wound---No justification was advanced by prosecution for transposing third eye-witness to accused---Mere mentioning in FIR that the deceased had abused the accused which led to the occurrence was not enough to connect him with the offence---Neither crime empty was collected from place of occurrence by investigating officer nor recovered pistol was sent to Forensic Science Laboratory---Co-accused had already been acquitted by Trial Court---Neither ocular account was reliable not same could find corroboration from any independent source---Appeal was allowed and accused was acquitted of the charge.

Ashiq Hussain v. The State PLD 1994 SC 879; Azhar Iqbal v. State 2013 SCMR 383; Sher Bahadur and another v. The State 1972 SCMR 651; Arif Hussain and another v. The State 1983 SCMR 428 and Muhammad Akram v. The State 2009 SCMR 230 rel.

(b) Criminal trial---

----Benefit of doubt---Scope---Rule of benefit of doubt was essentially a rule of prudence which could not be ignored while dispensing justice in accordance with law.

----Medical evidence---Scope---Medical evidence could only corroborate weapon used during the occurrence but it could not describe faces of assailants and was not sufficient to convict an accused.

Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53; Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 rel.

Dr. Muhammad Akmal Saleemi and Mrs. Nighat Saeed Mughal for Appellant.

Muhammad Ikhlaq, Deputy Prosecutor General for the State.

Zafar Iqbal Tarhana and Amjad Mahmood Butt for the Complainant.

YLR 2017 LAHORE HIGH COURT LAHORE 2276 #

2017 Y L R 2276

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

ABDUL REHMAN and others---Petitioners

Versus

GHULAM FATIMA and others---Respondents

C.R. No.2743 of 2010, heard on 19th December, 2016.

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

----Ss. 12 & 27---Limitation Act (IX of 1908), Art. 113---Qanun-e-Shahadat (10 of 1984), Art. 100---Evidence Act (I of 1872), S. 68 [since repealed]---Suit for specific performance of contract---Limitation---Agreement to sell---Proof of---Procedure---Attesting witness---Statement on special oath---Principles---Document more than 30 years old---Beneficiary of document---Evidentiary value---Scope---Sale of property through contract would take effect in terms and conditions incorporated therein but it did not by itself create any interest or change in the same---Onus would lie on the beneficiary to prove that transaction had been duly settled between the parties on such terms and conditions---Alleged agreement to sell had been signed/thumb marked by one of the vendees---Beneficiary could neither be a judge of his own cause nor could be treated as an attesting witness of his own transaction even if he had signed the agreement in such capacity---Vendee was an interested person who got recorded his evidence as attesting witness---Statement of vendee could not be treated at par with that of attesting witness---Plaintiff had not examined other attesting witnesses of agreement to sell as they had passed away prior to the recording of evidence---Person whose statement was recorded to prove the signature of deceased attesting witness could not prove the execution of agreement to sell---Stamp vendor was neither examined nor stamp vending register was got summoned which might have been retained in the safe custody---Alleged contract was scribed by an un-licensed deed writer---No documentary evidence of corroborative nature in shape of register of stamp vendor/deed writer was available on record---Party had to succeed on its own footing and no premium could be extended to him merely on account of making a statement on special oath which remained unproved through evidence led by him on record---If a party without consent of his adversary at his own made a statement on special oath and in rebuttal the latter did not opt to make such type of statement then no adverse inference could be drawn against him---Unilateral statement of a party if any made on special oath had to be collaborated by the other independent evidence---Court could only decide a lis on the basis of statement made on special oath provided both the parties agreed thereto---Court in absence of any agreeable situation among the parties neither could enforce an unwilling party to make statement on such oath nor could decide the lis on its basis which was administered without the consent of other party---Alleged agreement to sell was not a registered document but only notarized one but notary was not examined by the beneficiaries---Court was not bound to attach presumption of execution to a document more than 30 years old without considering the other facts of the case to draw such inference---Terms of documents and intention of the parties as to character of document must be gathered after considering its terms as a whole but not in isolation---Expression of the entire document was to be taken into consideration while interpreting the same---Nothing was on record that possession of suit property was delivered to the plaintiffs in consequence of transaction reflected in agreement to sell---Party approaching the Court for seeking some relief had to stand on its own legs---Any weakness in the defence of adversary would neither improve the case of a party nor would he be entitled for any relief on such score alone---Plaintiff had failed to establish execution of agreement to sell as well as transaction reflected therein---Findings recorded by the Courts below were result of twisting the material available on record---No target date for performance of contract had been provided therein---Period for filing of suit would start from the time when executant refused to honour his/her part---Present suit was filed after the period of 21 years after the death of original promisor---No specific date for refusal to execute the agreement to sell had been provided in the plaint---Present suit was barred by time---Judgments and decrees passed by both the Courts below were result of mis-reading and non-reading of evidence---Impugned judgments and decrees were set aside and suit was dismissed with special cost of Rs.100,000/--Revision was allowed in circumstances.

Sudhangshu Bimal Biswas v. MD Mustafa Chowdhary 1968 SCMR 213 and MD Anwarullah Mazumdar v. Tamina Bibi and 5 others 1971 SCMR 94 rel.

(b) Oaths Act (X of 1873)---

----S. 8---Special oath--- Principles.

----S. 115---Revisional jurisdiction of High Court---Scope---High Court could not interfere in concurrent findings of fact recorded by the Courts below but when there was mis-reading and non-reading of evidence and violation of law on the surface of such findings then High Court could rectify such error.

Muhammad Faheem Bashir and Ehsan Ahmed Bhindar for Petitioners.

Muhammad Abbas Shah for Respondents.

YLR 2017 LAHORE HIGH COURT LAHORE 2291 #

2017 Y L R 2291

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Ch. Abdul Aziz, JJ

MUHAMMAD NADEEM alias NADEEM HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Appeal No.332, Criminal P.S.L.A. No.85 and Murder Reference No.100 of 2012, heard on 31st January, 2017.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay in lodging of FIR---Effect---Admittedly, matter was reported to the police with a delay of about 17 hours---No plausible explanation was brought on record by the prosecution---Said delay in reporting the matter to the police cast a doubt about the veracity of the story incorporated in the crime report, benefit of which would resolve in favour of accused.

Muhammad Sadiq v. The State 2017 SCMR 144 and Wajahat Ahmed and others v. The State and others 2016 SCMR 2073 rel.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account not corroborated by medical evidence---Prosecution case was that accused along with co-accused committed murder of the son of complainant---Ocular account was furnished by three prosecution witnesses including complainant---FIR showed that the occurrence was not witnessed by any of the three eye-witnesses produced during the trial---Later on, complainant had claimed that he along with eye-witnesses witnessed the occurrence---During the course of examination-in-chief, complainant disowned the complaint by saying that police obtained his thumb impressions on blank paper and thereafter recorded his incorrect version---During the course of cross-examination, complainant had negated and contradicted his said version---Complainant did not raise any objection regarding the contents of FIR---Complainant made improvements during the course of his examination-in-chief---Record transpired that neither the complainant nor the witnesses were residents of the place of occurrence---Accused was portrayed as rich landlord of the vicinity but his house/dera was so unguarded and unprotected that the prosecution witnesses allegedly made ingress and that too at the odd hours of the night, when the fatal shot was fired---Said witnesses, from the facts, could be termed as chance witnesses and their testimony as unnatural---Statements of said three eye-witnesses showed that accused fired at the deceased with a carbine---Site plan showed the distance between victim and culprit was three feet only---Medical report of the deceased showed that there was no mark of blackening, burning or tattooing---If a shot was fired from 12-bore gun from a distance of one yard, it was likely to cause blackening and tattooing, thus medical evidence about distance of firing at deceased was not in line with the ocular account---Circumstances established that prosecution witnesses failed to prove their claim of having witnessed the occurrence and their testimony was not found to be in consonance with the case set up by prosecution---Accused was therefore, acquitted by setting aside conviction and sentence recorded by Trial Court.

Text Book of Forensic Medicine and Toxicology by Dr. S. Siddiq Hussain rel.

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive not proved---Effect---No motive was attributed to the accused or to the co-accused, at the time of registration of FIR---Complainant in his supplementary statement set up a specific motive, which was described as a financial dispute between the deceased and accused without mentioning its nature and detail---Prosecution tried to establish motive through the statements of witnesses including complainant but said witnesses furnished no detail regarding the motive as alleged by them---Prosecution case was silent as to when and in what manner and for what purpose, the amount in question was paid---No reference was made to any incident, which showed that accused was annoyed with the deceased so as to resort to such an extreme step of taking his life and that too for a meagre amount---Conversely, it had come in evidence that the deceased and the accused were in best of terms with each other---Circumstances established that prosecution failed to prove the motive part of the case---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

(d) Criminal trial----

----Appreciation of evidence---Motive---Principle---Prosecution, though was not obliged to prove the motive in each and every case, however, once the motive was set up, it must be established.

Noor Muhammad v. The State and another 2010 SCMR 97 and Muhammad Bux v. Abdul Aziz and others 2010 SCMR 1959 rel.

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

----Art. 121---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Burden of proof---Scope---Prosecution had to discharge its obligation of proving its case beyond any shadow of doubt---If the prosecution was successful in discharging such obligation, only then the burden would be shifted to the accused---Accused was, thus called upon to offer explanation regarding the existence and non-existence of any fact.

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

----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, common intention---Two versions---Scope---Specific plea taken by accused---Prosecution failed to prove its case---Effect---Accused had taken specific stance under S. 342, Cr.P.C. about the death of the deceased and canvassed it as death by accident---Version of accused was that the incident occurred when a gun accidentally went off and hit the deceased, resulting into his death---Deceased, then injured, was immediately, shifted to the hospital in an ambulance to save the life of the deceased, where he succumbed to the injuries---Accused produced six witnesses, who supported the defence version---Case, in circumstances, would become that of two versions.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Two versions---Scope---Two versions about the occurrence arising out of altogether two different circumstances---Both the versions were in conflict with each other---Such versions were to be taken in juxtaposition and it was to be seen as to which version was more probable and nearer to the truth---If after the examination of the whole evidence, it appeared to the court that there was some reasonable doubt that the murder was either unintentional or provoked, benefit would go to the accused---If it appeared that there was possibility of the defence of the accused having some shred of truth, in such circumstances, accused would be entitled to the benefit of doubt not as a matter of grace but as a right---Circumstances established that, in the present case, prosecution failed to prove its case whereas the plea of defence was nearer to the truth.

Muhammad Younas v. The State 1992 SCMR 1592; Woolmington v. Director of Public Prosecutions 1935 Appeal Cases 462; Safdar Ali v. The Crown PLD 1953 FC 93; Muhammad Aslam alias Aslam v. The Crown PLD 1953 FC 115; Muhammad Siddik v. The Crown PLD 1954 FC 112; Nadeem-ul-Haq Khan and others v. The State 1985 SCMR 510 and Javaid v. The State PLD 1994 SC 679 rel.

(h) Criminal trial---

----Witness--- Improvements made by witness in his statement---Effect---Dishonest improvements made by the witness in his statement was destined to be discarded from consideration.

Ibrar Hussain and others's case 2007 SCMR 605 and Muhammad Naeem Inayat v. The State 2010 SCMR 1054 rel.

Azam Nazeer Tarar and Qulandar Hussain Bhatti for Appellant.

Ch. Muhammad Riaz Ahmad for the Complainant.

Mian Muhammad Awais Mazhar, Deputy Prosecutor General for the State.

YLR 2017 LAHORE HIGH COURT LAHORE 2319 #

2017 Y L R 2319

[Lahore]

Before Ch. Abdul Aziz, J

MUHAMMAD KHALID---Petitioner

Versus

The STATE and 2 others---Respondents

Crl. Misc. No.16753-B of 2016, decided on 16th December, 2016.

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

----S. 497---Bail---Fresh ground---Scope---Delay in filing of private complaint and nature of evidence, in no way provided a fresh ground for bail.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 109, 120-B, 118, 148 & 149---Qatl-i-amd, abetment, criminal conspiracy, concealing design to commit offence, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Statutory ground of delay---Prosecution case was that accused-petitioner in furtherance of common object with co-accused while armed with deadly weapons, launched a murderous assault on the son of complainant and murdered him by causing injuries---Accused moved (second) petition for bail on fresh ground of non-conclusion of trial after the elapse of more than two years and the delayed filing of private complaint by the widow of deceased---Accused had alleged that he was behind the bars for the last more than two years and his trial was not concluded as yet---Prosecution contended that filing of private complaint by the widow of deceased was no fresh ground and the delay in conclusion of trial was caused due to the arrest of co-accused in some other case---Validity---Record showed that accused-petitioner was behind the bars for the last more than two years---On most of the dates of hearing, prosecution witnesses were found absent---Reason for delay in conclusion of case could not be attributed to the accused-petitioner or to his counsel---Case was adjourned for some dates on account of absence of co-accused, who was statedly arrested in a narcotics case---Circumstances established that delay in the conclusion of trial was not caused or occasioned by any act or omission of the accused-petitioner---Accused was entitled to the concession of bail on account of statutory delay.

Ghulam Jillani v. SHO Gulberg PLD 1975 Lah. 210; Ahrar Muhammad v. The State PLD 1974 SC 224; Sher Zaman v. Muhammad Azad 1978 SCMR 248 and Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504 rel.

----S. 497---Penal Code (XLV of 1860), S.302--- Qatl-i-amd--- Bail--- Statutory ground--- Principles--- Male accused become entitled to the concession of bail in a murder case, if he remained in continuous detention for a period exceeding two years and whose trial for such offence was not concluded ;while in the case of female accused, such detention was for a period of one year---Such delay should not be occasioned by an act or omission of the accused or any other person acting on his/her behalf---Provision of third proviso to S.497, Cr.P.C. was not to be read in isolation, rather was to be considered in conjunction with the provision of fourth proviso of said section---Benefit of third proviso of S. 497 Cr.P.C. would not be extended to a person who was convicted in an offence punishable with death or imprisonment for life or was a hardened, desperate or dangerous criminal or a person, who was involved in an act of terrorism punishable with death or imprisonment for life.

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

Shoukat Ali v. Ghulam Abbas and others 1998 SCMR 228 rel.

Ch. Anwaar ul Haq Pannu and Ms. Nosheen Amber Bokhari, for Petitioner.

Haroon Rasheed, Deputy District Public Prosecutor along with Sarfraz Ahmad A.S.I. with record for the State.

Rana Wahid Maqsood for the Complainant.

DETAILED ORDER

CH. ABDUL AZIZ, J.---This is an application for post arrest bail on behalf of Muhammad Khalid in case FIR No.90/2014, dated 27.02.2014, under Sections 302, 109, 120-B, 118, 148, 149, P.P.C., registered with Police Station, Noshehran Virkan, District Gujranwala.

Precisely, the allegation against the accused/petitioner is that he in furtherance of common object with his co-accused while armed with deadly weapons, launched a murderous assault on Ghulam Murtaza (deceased) and murdered him by causing injuries on his legs.
The petitioner previously applied for bail after arrest on merits, which came up for hearing before this Court on 23.07.2015 and was dismissed through an order passed in Crl. Misc. No. 6533-B/ 2015. This is the second application for bail after arrest, moved on fresh ground of non-conclusion of trial even after the elapse of a period of two years and the filing of a private complaint by the widow of the deceased, against the complainant and the two eye-witnesses nominated in FIR.
Learned counsel for the petitioner submits that the case has taken a turn as the widow of the deceased has filed a private complaint against the complainant namely Ghulam Mustafa and the two other witnesses namely Muhammad Khalil and Allah Ditta; that despite the fact the petitioner is behind bars for the last about 30-months but the trial has not yet concluded; that a valuable right for the grant of bail has accrued to the petitioner due to the non-conclusion of trial; that the trial is not delayed due to any act or omission of the petitioner and that the petitioner is neither dangerous nor desperate or previously convicted offender, hence is entitled to concession of bail.
Learned Deputy District Public Prosecutor assisted by the learned counsel for the complainant has vehemently opposed the grant of bail and argued that the filing of the private complaint by the widow is no fresh ground, hence the instant bail petition is not maintainable; that the delay in conclusion of trial is caused due to the arrest of co-accused in some other case and that a direction for the expeditious disposal of the case will be an appropriate order in this case.
I have heard the arguments of the learned counsel for the parties and have perused the record.
The instant case was registered on 27.02.2014, whereas the private complaint, which according to the learned counsel for the petitioner is a fresh ground, was filed on 06.05.2016. This private complaint is filed by Sobia, who is widow of Ghulam Murtaza (deceased) against Ghulam Mustafa (complainant) Muhammad Khalil and Allah Ditta (the two witnesses nominated in FIR). Even in the said private complaint, she has not claimed to have witnessed the occurrence and instead her blame against the accused of the private complaint is based on the evidence of extra judicial confession only. Without commenting upon the nature of acquisition contained in private complaint, this Court is of the view that due to the delay in filing the complaint and the nature of evidence, this complaint, in no way provides a fresh ground to the petitioner.
The entitlement of the petitioner to the concession of bail, based on the 3rd proviso of section 497, Cr.P.C is properly thrashed out by this Court from the record. The petitioner was arrested in this case on 18.05.2014, and the report under section 173, Cr.P.C. was submitted on 12.09.2014. In pursuance of submission of report under section 173, Cr.P.C. the copies under section 265-C, Cr.P.C. were distributed on 20.05.2015 and resultantly charge was framed on 06.07.2015. The perusal of the record reveals that on most of the dates, the prosecution witnesses were found absent. There are only two adjournments, which can purely be attributed to the defence, one being of 04.11.2015 and the other one of 11.04.2016. Both the interim orders are being reproduced below:-

(i). "04.11.2015. Accused Khalid in custody.

Accused Zafar Iqbal, Nazim Hussain, Imtiaz and Khan Muhammad on bail.

Learned Deputy District Public Prosecutor for the State.

PWs are present but accused stated that they have not engaged their counsel and requested for an adjournment. Present PWs are bound down for the next date. To come up on 17.11.2015."

(ii). "11.04.2016. Accused Khalid in police custody.

Accused Zafar Iqbal, Nazim Hussain, Imtiaz and Khan Muhammad on bail.

Complainant in person with PW Allah Ditta.

Learned ADPP on behalf of State.

Present PW is bound down. None of the remaining PWs are present. Let non-bailable warrant of arrest be issued in the name of SHO concerned for the production of remaining PWs on 25.04.2016."

On the earlier date, the petitioner sought an adjournment to engage a counsel. Such a right is provided to him under section 340, Cr.P.C as well as under Article 10 of the Constitution of Islamic Republic of Pakistan, 1973. As regards, the second date, it is observed that the set of the three eye-witnesses namely Ghulam Mustafa, Muhammad Khalil and Allah Ditta was not complete, hence, these two dates cannot be attributed to have contributed towards the delay, so as to render the petitioner disentitled from the concession of bail on the statutory ground. The perusal of the order sheet further reveals that on many dates, due to the absence of PWs, the learned trial court was forced to have recourse towards adopting coercive measures to procure their attendance. In this respect reference can be made to the order sheet of 10.12.2015, 05.01.2016, 18.01.2016, 17.09.2016, 08.10.2016, 30.07.2016, 03.09.2016, 14.03.2016, 28.03.2016. Admittedly, till date not a single prosecution witness has been examined whereas according to the calendar of witnesses, the proposed prosecution evidence comprises upon 19 witnesses.

In order to decide the question of entitlement of the petitioner, to be released on bail on account of statutory delay, it would be in fitness of things to peep through the legal archive, so far as it relates to grant of bail on account of delay. The provision of 3rd proviso was added in section 497, Cr.P.C. through Ordinance No. LXXI of 1979. An amendment was brought about in section 497, Cr.P.C. and a proviso was added therein to the following effect:--

"Provided further that the Court shall, except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bail.

(a) Who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded; or

(b) Who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded."

Later on, in the year 1983, Section 497 Cr.P.C. underwent a further change through Ordinance No. XXXII of 1983, whereby the 4th proviso of section 497 Cr.P.C was added therein. The relevant portion of the said Ordinance is reproduced hereunder:-

"Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal."

It is found that prior to 1979, no enabling provision was in existence in Criminal Procedure Code, whereby a person could be released on bail on account of delay in conclusion of trial. Even then, prior to the insertion of 3rd proviso, the delay was always considered as a ground for the grant of bail. However, at that time the courts were of the view that the delay must be inordinate or scandalous in nature. In this respect, reference can be made to the judgment reported as Ghulam Jillani v. SHO Gulberg (PLD 1975 Lahore 210). The observation of this Court is being reproduced hereunder:--

"Similarly, on the question of bail after arrest, after some amount of uncertainty, the law is now well settled that inordinate delay is a good ground for bail even in those cases which otherwise fall within the prohibition contained in subsection (1) of section 497, Cr.P.C. Thus, the ground of delay can be taken as another relevant analogy for the present discussion. It has been held that inordinate delay amounting to abuse of process of law furnishes good ground for bail."

In another case reported as Ahrar Muhammad v. The State" (PLD 1974 Supreme Court 224), the Hon'ble Supreme Court of Pakistan observed as under:--

"It is true that the view of the Supreme Court has consistently been that mere delay by itself is not a sufficient ground for the granting of bail; but, at the same time it cannot be said that inordinate or unjustified delay in the prosecution of a case amounting to an abuse of process of law can never be taken into account as relevant ground for the granting of bail. If the delay is so inordinate or so scandalous or so shocking as to amount clearly to an abuse of the process of law there can be no reason either in principle of law as to why it cannot be treated as a sufficient ground for the granting of bail. If such delay can be sufficient for quashing a criminal proceeding then it can also be an equally good ground for the granting of bail."

In the case of Sher Zaman v. Muhammad Azad (1978 SCMR 248), while dealing with an application for the cancellation of bail granted to him by the Hon'ble Lahore High Court on account of delay in conclusion of trial, following observation was made by Hon'ble Supreme Court of Pakistan:-

"The discretion exercised by the learned Single Judge in the High Court or releasing the accused on bail cannot be said to be illegal or perverse in view of the authority reported in PLD 1977 SC 480. Under the circumstances, this petition is, therefore, dismissed."

This Court is also not oblivious of the fact that in the past, the provision of 3rd proviso of section 497, Cr.P.C. was misused resultantly the Honourable Supreme Court of Pakistan observed in the judgment reported as Sh. Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504 and page 635) as under:--
"Before concluding the above discussion it will not be out of context to point out that the third proviso to section 497 the Criminal Procedure Code is also substantially contributing towards the delay in the disposal of criminal cases as it entitles and accused person accused of an offence not punishable with death to obtain bail on the expiry of one year from the date of his arrest, and in case of an offence punishable with death on the expiry of two years period from the date of his arrest. Some of the accused persons by their design ensure that the trials of their cases are delayed, so that they may come out of jails on the expiry of the above statutory period. In my humble view, the above provision has been misused and the same needs to be deleted. I may also observe that even before the incorporation of the above proviso, it was open to a Court to grant bail in a fit case on the ground of inordinate delay in the trial of a case, but no accused person was entitled to claim bail as a matter of right on the expiry of certain period."

Resultantly, the 3rd and 4th proviso were omitted from section 497, Cr.P.C. However, in the recent past, the legislatures again inserted 3rd and 4th proviso in section 497, Cr.P.C. through the Code of Criminal Procedure (Amendment Act) VIII of 2011, w.e.f. 18.04.2011. The relevant portion of the said amendment is reproduced hereunder:--

"Provided further that the Court shall, except where it is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bail---

(a) Who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding on year or in case of a woman exceeding six months and whose trial for such offence has not concluded; or

(b) Who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and in case of a woman exceeding one year and whose trial for such offence has not concluded;

Provided further that the provisions of the foregoing proviso shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or involved in terrorism."

The gist of the above mentioned amendment can be summarized to the effect that a male accused becomes entitled to the concession of bail in a murder case, if he remains in continuous detention for a period exceeding two years and whose trial for such offence is not concluded. In the case of a female accused, such detention is for a period of one year. The entitlement of the accused under 3rd proviso of section 497, Cr.P.C., qualifies for acceptance with the condition that such delay is not occasioned by an act or omission of the accused or any other person acting on his behalf. Moreover, the provision of 3rd proviso, is not to be read in isolation, rather are to be considered in conjunction with the provision of 4th proviso of section 497, Cr.P.C. This is envisaged in the 4th proviso that the benefit of 3rd proviso of section 497, Cr.P.C. will not be extended to a person, who is convicted in an offence punishable with death or imprisonment for life or is a hardened, desperate or dangerous criminal or a person, who is involved in an act of terrorism punishable with death or imprisonment for life.

The expeditious disposal of the case is the right of every accused person. The prosecution is required to proceed with its case, in all fairness, without delay. No leverage can be given to the prosecution to unnecessarily prolong the trial of the case, even in the cases of capital punishment.
In the instant case in order to see the reasons of the nonconclusion of trial, a report was also requisitioned from the learned trial court. The perusal of the report also shows that none of the reason assigned therein, can be attributed to the petitioner or to his counsel. According to this report, the case was adjourned for some dates on account of absence of co-accused Imtiaz, who was statedly arrested in case FIR No. 904/16 under section 9(c) of Control of Narcotic Substances Act, 1997 registered at Police Station Housing Colony, Sheikhupura. The perusal of the record shows that presently Imtiaz is appearing before the Court. The delay, if any, caused by co-accused does not make the petitioner disentitled from the concession of bail arising out of 3rd proviso of section 497, Cr.P.C. An accused cannot be held hostage for the act of his co-accused. In this respect reliance can be placed on the judgment reported as Shoukat Ali v. Ghulam Abbas and others (1998 SCMR 228). Following is the relevant extract of this judgment:--

"It appears that by the time, the accused/respondents were released on bail, period of their incarceration had almost exceeded two years and admittedly their trial had not concluded till then. It has not concluded even till today. Confronted with this position, learned counsel for the petitioner sought to argue that some delay was also caused owning to the non-appearance of the accused, who were placed in column No.2 of the challan and were summoned by the Court. Learned counsel was unable to give us the exact period of delay so caused and even otherwise, the delay, if any, caused on account of non-appearance of the co-accused of the respondents could by no stretch of reasoning be attributed to the latter. Needless to observe that such delay could not be said to have been occasioned by any act or omission of the accused/respondents or any person acting on their behalf."

The ground of delay, for the purposes of grant of bail prior to above referred amendments was undoubtedly within the discretion of the Courts and such question whenever arose, was decided by the courts in accordance with the facts and circumstances and in accordance with the judicial wisdom. There was no legal provision, in any statute, to provide any guideline. The law for the grant of bail, on account of delay developed on the basis of judge made law. However, later on the legislatures intervened and the law was made more specific and certain. The amendments in the shape of 3rd and 4th provisos of section 497, Cr.P.C. were brought and guidelines were provided for the grant of bail on the account of delay in conclusion of trial. In the 3rd proviso of section 497, Cr.P.C. the word 'shall' was used by the legislatures. The word shall itself reflects the intent and desire of the legislature that if in the given circumstances the delay is not attributable to the accused and he does not hail from the specific class of persons defined in 4th proviso of section 497, Cr.P.C. then he is to be released on bail as a matter of right. This aspect was discussed by the Hon'ble Supreme Court of Pakistan in the judgment reported as Nazir Hussain v. Zia ul Haq and others (1983 SCMR 72). The para 9 of this judgment is relevant, which is reproduced as under:--

YLR 2017 LAHORE HIGH COURT LAHORE 2330 #

2017 Y L R 2330

[Lahore]

Before Tariq Iftikhar Ahmad, J

FATIMA RANA---Petitioner

Versus

BILAL AHMAD BHATTI and others---Respondents

W.P. No.38067 of 2016, decided on 8th December, 2016.

Family Courts Act (XXXV of 1964)---

----S. 9, Sched. & Preamble---Suit for dissolution of marriage, recovery of maintenance allowance, dowery articles and cash---Personal property and belongings of wife---Wife contended that she had sent huge amount to husband, time to time, while serving abroad which she was liable to recover being her personal belonging and property---Husband raised question in respect of jurisdiction of Family Court to adjudicate the matter---Family Court accepted application of husband and advised wife to resort appropriate forum for relief---Validity---Wife had urged that the amount generated by her while serving abroad, after marriage and sent to husband, was nothing but her personal property and the Family Court had jurisdiction to entertain the matter---Preamble of a statute was incorporated to briefly mention the purposes of the statute and plain reading of the Preamble of Family Courts Act, 1964 showed that Family Court was established under the Act for expeditious settlement and disposal of disputes relating to marriage and family affairs and for matter connected therewith---Contention of the wife, that she herself earned amount which was sent to her husband, was not a dispute relating to marriage or matters connected therewith---Claim of wife was of civil nature, for recovery of amount received by husband from her---Family Laws being special laws had its own procedure as well as fixation of time for disposal of the same---Family Court while acting under the principle of equity, natural justice and good conscious correctly observed and "advised" the wife to avail her remedy at proper forum against her claim for recovery of the amount---Constitutional petition was dismissed accordingly.

Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others PLD 2011 SC 260 distinguished.

YLR 2017 LAHORE HIGH COURT LAHORE 2347 #

2017 Y L R 2347

[Lahore]

Before Ali Baqar Najafi, J

MUHAMMAD KHALID alias KHALID MEHMOOD and others---Petitioners

Versus

MUHAMMAD YOUSAF and others---Respondents

Writ Petition No.22422 of 2010, heard on 17th October, 2014.

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

----S. 12(2)---Specific Relief Act (I of 1877), S. 12---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for specific performance of agreement to sell---Consent decree, setting aside of---Pecuniary jurisdiction---Effect---Pecuniary jurisdiction had been fixed at Rs. 55,00,000/ in the plaint---Trial Court dismissed application under S.12(2), C.P.C. for setting aside consent decree but the same was accepted by the revisional court---Validity---Jurisdiction could be determined on the basis of plaint of the original suit---Revisional Court had exercised pecuniary jurisdiction not vested in it as the value of suit set out in the plaint on the basis of which the consent decree was passed for Rs. 55,00,000/---Impugned judgment passed by the Revisional Court was set aside---Constitutional petition was accepted, in circumstances.

Abdul Haque and 3 others v. Sukhial and 2 others 2006 CLC 286 rel.

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

----S. 12---Suit for specific performance of agreement to sell---Consent decree---Pecuniary jurisdiction, determination of---Jurisdiction could be determined on the basis of plaint of the original suit.

Imran Ahmad Malik for Petitioners.

Sh. Ijaz-ur-Rehman and Aftab Hussain Bhatti for Respondents Nos. 1 to 8.

YLR 2017 LAHORE HIGH COURT LAHORE 2358 #

2017 Y L R 2358

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

ARSHAD IQBAL---Petitioner

Versus

MUHAMMAD HAYAT---Respondent

C.R. No.2050 of 2010, decided on 5th April, 2016.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Talbs, performance of---Requirements---Vendor being brother of pre-emptor--- Effect--- Right of substitution---Waiver of---Scope---Pre-emptor without disclosing that vendor was his real brother had pre-empted the sale---Pre-emptor in case of any adverse statement made by vendor could have made a request for declaring him hostile and by subjecting him to cross-examination the veracity of his statement could be elucidated on record---Prudent man could not believe that factum of sale of pre-empted property by the brother of pre-emptor had remained secret from the knowledge of pre-emptor for a long period---Pre-emptor was residing in the same village where pre-empted property was situated---Pre-emptor being brother of vendor could be presumed to have knowledge of sale transaction from its inception---Nothing was on record that pre-emptor asked his brother to sell the land in question to him---Both pre-emptor and vendor had understanding between them---Change of possession of immovable property could be considered a notice to all the inhabitants of the locality with regard to effecting of the transaction---Sale was in the knowledge of pre-emptor from the day one, when it was effected---Alleged fulfillment of Talb-i-Muwathibat was not genuine rather fictitious and concocted---Pre-emptor was bound to prove the service of notice of Talb-i-Ishhad through registered post on the vendee by production of concerned postman who was alleged to have actually delivered the same---Postman who was produced in the court was not posted as a postman when the alleged delivery of notice was effected upon the vendee---Postman had got recorded his statement without producing the delivery register wherein endorsement was made by the postman qua the effect that registered post was delivered or it was refused---Statement of postman in absence of such register as well as report over acknowledgement due had no evidentiary value with regard to registered post containing notice of Talb-i-Ishhad---Findings of Trial Court with regard to service of notice of Talb-i-Ishhad were not based on appreciation of material available on record---If any portion in statement-in-chief was not specifically cross-examined by the pre-emptor then same should be deemed to have been admitted---Pre-emptor had neither asked the vendor to sell the land in question to him nor did he notify the vendee with regard to his intention to claim his right of pre-emption---Right of substitution could be waived either by express refusal to purchase the property or by conduct on the part of pre-emptor showing lackadaisical attitude in purchase of property---Impugned judgments and decrees were illegal, unlawful and perverse being result of mis-reading and non-reading of evidence on record which were set aside---Suit was dismissed with costs throughout---Revision was allowed in circumstances.

Abdul Qayum through Legal Heirs v. Mushk-e-Alam and another 2001 SCMR 798 and Muhammad Tariq and 4 others v. Asif Javed and another 2009 SCMR 240 ref.

Muhammad Bakhsh v. Nisar Ahmad 1985 CLC 1974; Mst. Hameedan Begum and 11 others v. Muhammad Jafar 2006 MLD 1034; Basharat Ali Khan v. Muhammad Akbar 2011 CLC 969; Naseer Ahmad v. Arshad Ahmad PLD 1984 SC 366; Waqar Ambalvi v. Faqir Ali and others 1969 SCMR 189; Chief Engineer, Irrigation Department, N.W.F.P., Peshawar and 2 others v. Mazhar Hussain and 2 others PLD 2004 SC 682; Hafiz Tassaduq Hussain v. Lal Khatdon and others PLD 2011 SC 296; Abdul Hameed and others v. Muzamil Haq and others 2005 SCMR 895 and Hassan Din and others v. Manzoor Hussain and others 2010 SCMR 810 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Scope of interference with the concurrent findings of facts was limited but such findings could be interfered with by the High Court if courts below had either mis-read or non-read the evidence having 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.

Naveed Shehryar Sh., Humaira Bashir, Muhammad Ali Naveed, Bashir Ahmad Mirza and Anwaar Hussain Janjua for Petitioner.

Ghulam Fareed Sanotra for Respondent.

YLR 2017 LAHORE HIGH COURT LAHORE 2368 #

2017 Y L R 2368

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

Mst. IQBAL FATIMA through Special Attorney---Petitioner

Versus

KHALID NAEEM and 2 others---Respondents

W.P. No.21676 of 2012, heard on 19th February, 2015.

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

----O. VI, R.17 & S. 12(2)---Constitution of Pakistan, Art. 199---Amendment of plaint---Principles---Plaintiff's suit was revived upon application of defendant under S. 12(2) after almost twenty six years---Plaintiff moved application to amend the plaint, which was dismissed by both Trial Court and revisional court on ground of delayed filing---Validity---While considering request of a party for amendment of pleadings technicalities should have been avoided, as rules of procedure were meant to advance justice and mere delay could not be made basis for dismissal of such application---High Court allowed constitutional petition; order passed by both the courts below was set aside and application for amendment of plaint was accepted subject to payment of cost in circumstances.

Khair Muhammad and others v. Nawab Bibi and others 2008 SCMR 515; Mst. Imam Hussain v. Shr Ali Shah and others 1994 SCMR 2293; Sher Afzal v. Abdul Malik and 2 others 2002 MLD 199; m.v. Kaptan Yousuf Kalkavan v. Semco Salvage (Pvt.) Ltd. 1992 CLC 143 and Muhammad Shafi and others v. Abdul Hameed and others 2008 SCMR 654 ref.

Mst. Ghulam Nabi v. Sarsa Khan PLD 1985 SC 345 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---No court has jurisdiction to decide about rights of parties in violation of law---High Court has powers to decide on issues where interference is warranted, in its constitutional jurisdiction.

Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 rel.

Sh. Naveed Shehryar for Appellant.

Mian Mohammad Aslam for Respondent No.1.

YLR 2017 LAHORE HIGH COURT LAHORE 2382 #

2017 Y L R 2382

[Lahore]

Before Amin-ud-Din Khan, J

Mian HUSSAIN IFTIKHAR and others---Petitioners

Versus

DEPUTY SETTLEMENT COMMISSIONER and others---Respondents

C.R. No.1826 of 2007, decided on 16th June, 2016.

(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)---

----Ss. 27 & 25---Civil Procedure Code (V of 1908), S.11, O.II, R.2 & O.XXIII, R.1---Transfer of evacuee property---Issuance of Permanent Transfer Deed by Settlement Department---Cancellation of such Deed---Scope---Application filed by defendants for rejection of plaint was accepted by Trial Court and plaint was rejected---Plaintiff preferred appeal against order rejecting plaint which was accepted and matter was remanded to Trial Court for decision afresh---Validity---Held, that when the Settlement Department had stated that Permanent Transfer Deed (PTD) had not been cancelled, no further adjudication was required, and no question of bar contained under O.XXIII, R.3, C.P.C. came into existence---Plaintiff filed another suit prior to the present suit on the assumption of cause of action that suit property was transferred to defendant illegally but Settlement Department made it clear that PTD was not cancelled, resultantly a new cause of action arose to them whereby only the possession of suit property was to be claimed and suit was also not hit by O.II, R.2, C.P.C. as on the basis of new cause of action present suit was filed---Argument of defendants that for final adjudication of civil revision record of Settlement Department be summoned was sufficient to dismiss civil revision---Civil revision was dismissed accordingly.

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

----Ss. 12 & 42---Agreement to sell---Suit for declaration based on an agreement to sell could be converted into a suit for specific performance.

Kh. Ahmad Tariq Raheem for Petitioners.

Shahid Shabbir for Respondent No.2.

Ch. Abdul Hafeez for Respondent No.3.

Mian Javed Iqbal Arain for Respondents Nos.5 to 13.

M. Hammad Khan Rai, A.A.G. for Respondents Nos. 1 and 4.

YLR 2017 LAHORE HIGH COURT LAHORE 2394 #

2017 Y L R 2394

[Lahore]

Before Shahid Hameed Dar and Syed Shahbaz Ali Rizvi, JJ

MUHAMMAD IMRAN and 11 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.600 of 2015, heard on 20th January, 2016.

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

----Ss. 7(g) & 9---Speech creating sectarian hatred--- Appreciation of evidence---Slogans against Armed Forces and a particular sect---Funeral procession---Identification and nomination of accused persons---Complainant in his statement contended that he nominated the accused persons by knowing their names through security officials and C.T.D. officials who were present at the spot---Complainant captured the event by camera but did not disclose such recording for helping in identifying the accused---Number of participants in the procession were not mentioned in the complaint by the complainant but he mentioned them between 500-1000 during his testimony---Source persons were also not cited as the witnesses---No person from a particular sect appeared to join the investigation---Testimony of complainant was nothing but an unresolved riddle which did not establish the identification of accused---To select a few from hundreds of slogan raisers, if at all it was so, for naming them as accused in such a case required a high degree of sensibility, which was not shown---Extra pace of the trial to overcome much needed sensibility as to the said fact, could result in a fallacious verdict of guilt against the accused---Prosecution could not establish identity of the accused beyond mere estimations---Conviction and sentence of accused was set aside.

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

----Ss. 7(g) & 9---Speech creating sectarian hatred---Appreciation of evidence---Backdrop of hanging of a person was not known which would reflect on the veracity of allegations, levelled by the prosecution against the accused---Some oral or documentary evidence had been produced by the prosecution in this regard---Such hidden aspect made the case hazier---Accused were acquitted.

A.G. Tariq Chaudhry and Javed Imran Ranjha for Appellants with Appellants on bail.

Munir Ahmad Sial, Deputy Prosecutor General for the State.

YLR 2017 LAHORE HIGH COURT LAHORE 2406 #

2017 Y L R 2406

[Lahore (Rawalpindi Bench)]

Before Muhammad Ameer Bhatti, J

Mst. INAYAT-UR-REHMAN through L.Rs. and others---Petitioners

Versus

Mst. ANWAAR SAEED BEGUM and 7 others---Respondents

C.R. No.555-D of 2010, heard on 5th October, 2016.

Islamic law---

----Gift---Oral gift---Ingredients---Proof---Contention of plaintiffs was that suit land had been alienated to them by way of oral gift---Suit was decreed by the Trial Court but Appellate Court dismissed the same---Validity---Donees were not present at the time of offer made by the donor; no one made acceptance and possession was not handed over to donees---Donor had power to alienate his property by way of gift provided he was of sound mind, in proper health and gift was made in exercise of his independent and voluntary discretion---Burden was on the beneficiary of gift to prove the authenticity and validity of the gift by producing direct confidence inspiring evidence with regard to offer, acceptance and delivery of possession---Prerequisites of a valid gift were missing in the present case---Plaintiffs had failed to prove the oral gift---No illegality or irregularity having been committed by the Appellate Court, revision was dismissed in circumstances.

Mst. Saadia v. Mst. Gul Bibi 2016 SCMR 662; Noor Din and another v. Additional District Judge, Lahore and others 2014 SCMR 513; Mst. Nagina Begum v. Mst. Tahzim Akhtar and others 2009 SCMR 623; Raja Hamayun Sarfraz Khan and others v. Noor Muhammad 2007 SCMR 307; Mst. Nusrat Zohra v. Mst. Azhra Bibi and others PLD 2006 SC 15; Riaz Ullah Khan v. Asghar Ali and 2 others 2004 SCMR 1701 and Muhammad Sadiq v. Sardar and others 1995 SCMR 710 distinguished.

Muhammad Bashir v. Allah Ditta and others 1994 SCMR 1870; Muhammad Shafi and others v. Sultan Mahmood and others 2010 SCMR 827 and Muhammad Hassan v. Khawaja Khalil-ur-Rehman 2007 SCMR 576 rel.

Ch. Mushtaq Ahmad Khan for Petitioners.

Shiekh Zameer Hussain for Respondents Nos.1 to 4.

Ahmad Nawaz Khan for Respondents Nos. 6 to 8.

YLR 2017 LAHORE HIGH COURT LAHORE 2427 #

2017 Y L R 2427

[Lahore]

Before Abdul Sami Khan and Raja Shahid Mehmood, JJ

MUHAMMAD IJAZ and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos.284-J of 2015 and 1303 of 2013, heard on 14th December, 2016.

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

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

----Ss. 324, 337-H(2), 109, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7(c)---Attempt to commit qatl-i-amd, hurt by rash and negligent act, abetment, rioting armed with deadly weapon, common intention, act of terrorism---Appreciation of evidence---Sentence, reduction in---Allegations against accused persons were that they made firing on complainant and his cousin with the intention to kill them---Accused party had made indiscriminate firing at the spot due to which 8/10 persons fell down after receiving firearm injuries---Prosecution produced complainant and injured victims as eye-witnesses to prove the ocular account---Both the witnesses had explained time, place of occurrence, inasmuch as each and every segment of the occurrence in a straightforward and clear-cut manner---Said witnesses had explained the mode and manner of taking place of the occurrence---Credibility of the eye-witnesses were not shattered despite lengthy cross-examination--- Witnesses remained consistent on all material points and remained stuck to their stance that the accused and co-accused persons fired at the spot and caused injuries to both the injured eye-witnesses inasmuch as 8/10 other persons who were present in the bazaar---Witnesses had sufficiently proved their presence at the place of occurrence at relevant time and witnessed the occurrence and identified the accused at the spot---All the eye-witnesses had shown their natural conduct at the place of occurrence and they had brought the true story in the same manner as they had witnessed at the spot---Admittedly, parties were previously interlocked into criminal litigation and known to each other, therefore, there was no chance of mistaken identity---Medico-legal Certificates of injured witnesses were available with the prosecution to provide support to the ocular account---High Court, in circumstances, reduced the imprisonment from ten years to imprisonment for six years---Appeal against conviction and sentence with said modification was dismissed.

Muhammad Ahmad and another v. The State and others 1997 SCMR 89 rel.

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

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

Ahmad Jan v. Nasrullah and others 2012 SCMR 59; Basharat Ali v. Special Judge, Anti-Terrorism Court-II, Gujranwala PLD 2004 Lah. 199; Mohabbat Ali and another v. The State and another 2007 SCMR 142; Tariq Mahmood v. The State and others 2008 SCMR 1631 and Bashir Ahmad v. Muhammad Siddique and others PLD 2009 SC 11 rel.

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

Muhammad Aqeel Atif Chathha for Appellants (in Cr. A. No.284-J of 2015).

Hafiz Muhammad Zaheer Nasir (Defence counsel) for Appellant (in Cr. A. No.1303 of 2013).

Tariq Javed, District Public Prosecutor for the State.

Nemo for the Complainant.

YLR 2017 LAHORE HIGH COURT LAHORE 2447 #

2017 Y L R 2447

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

M. ASLAM through L.Rs. and others---Petitioners

Versus

MEMBER, BOARD OF REVENUE and 5 others---Respondents

Writ Petition No.08 of 2007, decided on 21st May, 2015.

(a) Punjab Board of Revenue Act (XI of 1957)---

----S. 8---Constitution of Pakistan, Art. 199---Constitutional petition---Second review petition before Board of Revenue---Maintainability---Res judicata---Principle of---Applicability---Scope---No express prohibition existed in the Punjab Board of Revenue Act, 1957 for second review petition---Punjab Board of Revenue Act, 1957 did not expressly or impliedly exclude general principle of res judicata and rule of finality of judgment---Second review petition after decision of first one on its merits could not be competently instituted---Once such power had been exhausted second review was not competent---No provision existed to file second review petition before Board of Revenue whereby first review petition was rejected and order had become final between the parties---Order passed on first review petition had attained finality as same was not challenged before any other forum---Order passed in second review petition was without any authority, in excess of jurisdiction having no legal effect which was set aside---Second review petition on the same subject was not maintainable which would lead to an un-ending cycle of litigation---Such power was not available to any successor in the Board to adjudge validity of order passed in first review petition---Only single review was available under S. 8 of Punjab Board of Revenue Act, 1957---Impugned order had no legal sanction as Board of Revenue was not competent to decide against the statutory provision of law---Member in Board of Revenue was not competent to enjoy the powers to exercise a suo motu review jurisdiction---Petitions seeking second or subsequent review on already decided matters in first review should be deemed to have become redundant---High Court directed that Board of Revenue would declare all such pending petitions for "second or subsequent review" as redundant and unauthorized forthwith---Decision arrived at by the Full Board, providing a remedy of second review in exceptional circumstances, having no legal sanction, was set aside by the High Court---Constitutional petition was accepted accordingly.

Muhammad Shafi v. The Member (Cons.) Board of Revenue and 2 others 1995 CLC 966; Raja Mohammad Iqbal and 39 others v. Capital Development Authority, Islamabad through its Chairman and 2 others 2002 YLR 1059; Ghulam Muhammad v. Member (Judicial-Ill), Board of Revenue Punjab, Lahore 2005 CLC 1512; Khan Muhammad and others v. Member, Board of Revenue and others PLD 2006 Lah. 615; Allah Wasaya v. Member (Colonies) Board of Revenue, Punjab, Lahore and others 2006 YLR 2084; Ahmed Sher Khan v. Senior Member, Board of Revenue, Punjab Lahore and others 2009 YLR 1820; Abid Ali Baig and others v. Zafar Ali and others 2012 CLC 985; Dr. M. Fazil Zahir and others v. Mst. Begum Jan and others PLD 1966 (W.P.) Lah. 53; Hamayun Ijaz and another v. Mst. Hafiza Bano and another PLD 1985 Rev. 151 and Mesars Starco Limited v. Sindh Agricultural Research Farm, Tando Jam through Director Finance, and others 2005 CLC 235 ref.

(b) Words and phrases---

----Word "a"---Meaning.

Concise Oxford English Dictionary and Chambers 21st Century Dictionary rel.

Mian Hameed ud Din Kasuri and Mian Mohammad Hanif for Petitioners.

Khawar Ikram Bhatti, Additional Advocate-General, Punjab for Respondent No.1.

Sameer Ejaz for Respondents Nos. 2 and 6.

Ch. Mohamamd Jahangir Wahla for Respondent No.3.

Baleegh uz Zaman Chaudhree for Respondent No.4.

YLR 2017 LAHORE HIGH COURT LAHORE 2465 #

2017 Y L R 2465

[Lahore (Multan Bench)]

Before Ch. Mushtaq Ahmad, J

MUHAMMAD RIAZ---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.6182-B of 2016, decided on 7th December, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Penal Code (XLV of 1860), Ss. 337-F(v), 148 & 149---Hurt, rioting armed with deadly weapon, unlawful assembly---Bail, confirmation of---Allegation against the accused were that he gave a blow with sota (stick) resulting in fracture of complainant's right arm---Accused along with six co-accused were named in FIR---Co-accused were also given specific roles but medical evidence did not support charge to their extent---Dispute between the parties was over possession of agricultural land---Offence with which accused was charged did not fall within prohibitory clause of S. 497, Cr.P.C.---Accused had already joined investigation and sending him behind the bars would serve no useful purpose---Ad-interim pre-arrest bail already granted to accused was confirmed accordingly.

Prince Rehan Iftikhar for Petitioner.

Ch. Ahmad Raza, Additional Prosecutor General and Ghulam Mustafa, ASI for the State.

YLR 2017 LAHORE HIGH COURT LAHORE 2474 #

2017 Y L R 2474

[Lahore (Rawalpindi Bench)]

Before Abdul Sami Khan, J

MUHAMMAD LATIF---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos.67, 161 and Criminal Revision No.70 of 2010, heard on 9th February, 2016.

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

----Ss. 302(b)(c), 337-A(i)(iii) & 34---Qatl-i-amd, causing Shajjah-i-Khafifah, Shajjah-i-Hashimah, common intention---Appreciation of evidence---Sentence, reduction in---Case was of prompt FIR---Complainant had attributed a specific role to accused for causing injury to him---Prosecution witnesses, who were two real brothers of the deceased, had supported the story narrated in the FIR---Both said prosecution witnesses had ascribed specific role to accused of causing injuries to the deceased---Said witnesses were subjected to lengthy cross-examination, but without extracting any beneficial statement to help accused---Nothing was extracted from the mouths of said witnesses to create doubt regarding their presence at the spot---Said witnesses stood firm to the test of cross-examination and their presence at the place of occurrence at the relevant time remained un-shattered---Occurrence took place in front of the said witnesses, who were residents of same village and were known to accused---No mistaken identity of accused, in circumstances---Said witnesses had no motive or ill-will to falsely implicate accused in the murder of their own brother---Defence could not point out even a single material contradiction or improvement in the statements of eye-witnesses---Medical evidence had provided full support to the ocular account and there was no infirmity, inconsistency or contradiction between the ocular account and medical evidence---Record had established that accused committed the murder of the deceased---Prosecution had successfully proved its case beyond any shadow of doubt against the accused---Some intrinsic facts were available in the case regarding quantum of sentence awarded to accused which were that occurrence took place without premeditation and consultation; that weapon of offence used in the incident was piece of brick, which ordinarily was not a weapon of offence; that possibility could not be ruled out that accused had grabbed a piece of brick from the spot and in the heat of passion petted on the deceased, which hit him on his head and he died after four days of the occurrence; that occurrence took place without background of any ill-will or bitterness between the parties and the incident had erupted all of a sudden without any premeditation; that accused, at the time of occurrence was 77 years of age and that co-accused, who was ascribed the same role had been acquitted by the Trial Court---Case in circumstances, squarely fell under S.302(c), P.P.C.---Conviction and sentence awarded to accused under S.302(b), P.P.C., were set aside and he was convicted and sentenced under S.302(c), P.P.C. and was sentenced to imprisonment already undergone i.e. four years and eleven months---Amount of compensation was also reduced.

PLD 1996 SC 274 and Azmat Ullah v. The State 2014 SCMR 1178 ref.

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

----Ss. 302(b), 337-A(i)(iii) & 34---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-i-amd, causing Shajjah-i-Khafifah, Shajjah-i-Hashimah, common intention---Appeal against acquittal---Reappraisal of evidence---Acquitted accused, though was named in FIR, but no specific injury was attributed to her by the complainant---Acquitted accused being real daughter of accused, possibility of her false implication by the complainant by spreading the net wide, could not be ruled out---Standards of assessing evidence in appeal against acquittal, were quite different from those laid down for appeal against conviction---Marked difference existed between reappraisal of evidence in the appeal against conviction and in the appeal against acquittal---Appraisal of evidence in appeal against conviction, was done strictly and in appeal against acquittal, the same rigid method of appraisement, was not to be applied as there was already finding of acquittal recorded by the Trial Court after proper analysis of record---Interference in appeal against acquittal, was made only when it appeared that there had been gross misreading of the evidence, which would amount to miscarriage of justice---Scope of appeal against acquittal of accused, was considerably narrow and limited---Acquittal of co-accused, in the present case, did not suffer from any illegality so as to call for interference with the impugned judgment---Trial Court had advanced valid and cogent reasons for passing the findings of acquittal of accused---No legal justification existed to disturb the same---When a court of competent jurisdiction would acquit an accused of the charge, double presumption of innocence would attach with the order of acquittal and very strong and exceptional grounds were required to set aside the order of acquittal---Appeal against acquittal was dismissed, in circumstances.

Muhammad Usman and 2 others The State 1992 SCMR 498; The State v. Muhammad Sharif and others 1995 SCMR 635 and Iftikhar Hussain and others v. The State 2004 SCMR 1185 ref.

Ch. Naseer Ahmed Tahir for Appellant (in Criminal Appeal No.67 of 2010) with Appellant on bail.

Sheikh Istajabat, Ali, Deputy Prosecutor General for the State.

Mian Muhammad Arif for the Complainant.

YLR 2017 LAHORE HIGH COURT LAHORE 2486 #

2017 Y L R 2486

[Lahore]

Before Abdul Sami Khan, J

SHAHID---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.14505-B of 2016, decided on 2nd November, 2016.

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

---S. 497---Penal Code (XLV of 1860), Ss. 324, 337-F(vi), 337-F(iv), 109 & 34---Attempt to commit qatl-i-amd, hurt, abetment, common intention---Bail, grant of---Further inquiry---Although accused was named in FIR, yet there was one day's delay in registration of FIR---Role assigned to accused was that he had caused firearm injury on the back of right leg and admittedly had not repeated fire, therefore, question as to whether provisions of offence under S. 324 Penal Code, 1860 were attracted or not shall be determined by Trial Court after recording evidence---Rest of offences i.e. 337-F(iv) & 337-F(vi), P.P.C. did not fall within prohibitory clause of S. 497, Cr.P.C.---Maximum punishment was not to be considered while deciding bail application and sentence likely to be imposed was to be taken into consideration---Accused was previous non-convict and never involved in any other case of such like nature---Investigation of case was complete and accused was no more required for further investigation---No fruitful progress had been made in trial of accused---Case of accused was one of further inquiry covered by subsection (2) of S.497, Cr.P.C.---Bail was granted accordingly.

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

----S. 497--- Bail--- Scope--- Maximum punishment was not to be considered while deciding bail application and sentence likely to be imposed was to be taken into consideration.

Rai Muhammad Hussain Kharal for Petitioner.

YLR 2017 LAHORE HIGH COURT LAHORE 2493 #

2017 Y L R 2493

[Lahore (Multan Bench)]

Before Abdul Sami Khan and Ch. Abdul Aziz, JJ

SHAHID HUSSAIN SHAHID---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No.470 of 2016, heard on 13th April, 2017.

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

----S.9(a)(ix) & (x)---Offences of cheating and criminal breach of trust--Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused lured the general public by offering them exorbitant profit and thereby received certain amount from them for the purposes of investment and subsequently misappropriated the same---Case against the accused arose out of complaint of the complainant, who while appearing as witness disowned the contents of the complaint and was declared hostile--Complainant had claimed that he was present in Madina, when the complaint was moved and he tendered the copy of his passport, which showed that complainant was away from the country when the complaint was statedly moved before the National Accountability Bureau

Authorities---Such aspect of the case suggested that case was not free from the menace of fabrication of false evidence--One witness appeared in support of investment of Rs. 1,50,000/- by his brother---Record showed that brother of said witness never joined the proceedings, either at investigation stage or during the trial-Statements of witnesses showed that all of them had handed over their respective amounts to the accused without any receipt or agreement-No material was brought on record to determine the nature and the status of the investment--No evidence was brought on record regarding the timeframe of the investment and the return of the principal amount--Nothing was on record regarding the consequences of the loss in the business, as no terms and conditions, oral or written, were brought on record---Record showed that accused gave the cheques to the witnesses as guarantee and that too without mentioning any date, which were not produced, either at investigation stage or during trial---Accused had filed a civil suit against a person who had defrauded him---Prosecution witness deposed that defendant of the civil suit defrauded the accused for an amount of Rs. 1,48,50,000/----Said version of the witness provided due support to the defence of the accused, which he took while he was examined under S. 342, Cr. P. C. ---Complainant and some witnesses stated that they had made the investment on the asking of a third person and cheques were given to them by the said person, who had proceeded abroad--Complainant and witnesses, in support of their claim, placed reliance solely on the respective cheques, statedly issued by the accused---Except said cheques, neither any documentary evidence was brought on record nor any witness was produced in support of each claim---Accused specifically denied the execution of cheques and challenged his signatures as well---Prosecution was legally obliged to subject these cheques to the opinion of the handwriting expert, which was not done---Accused had alleged that he was employee of the actual owner of the business but National Accountability Bureau Authorities made no effort to interrogate the said actual owner of the business---Investigating Officer made no endeavour to find out the ownership of the shop where the business was carried out---Circumstances

established that due to failure of prosecution to bring on record any documentary evidence in support of respective claims of the victims, non-production of report from the handwriting expert, improper investigation and the misapplication of S. 9(a)(ix) & (x) of National Accountability Ordinance, 1999 created reasonable doubt about the culpability of the accused---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by Trial Court.

(b) Criminal trial--

--Investigation- Scope--- Investigation must not be aimed at collecting the material which would go against the accused---True spirit of the investigation was to collect the evidence, even if it favored the accused.

----Prosecution, duty of---Scope---Prosecution was duty bound to prove its case---Accused was only required to create a doubt about his involvement in the commission of offence.

(d) Interpretation of statutes---

---If an expression was not defined in any law, then its dictionary meaning could be followed and adopted.

Chairman Pakistan Railway Government of Pakistan v. Shah Jehan Shah PLD 2016 SC 534 rel.

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

----S. 9(a) (ix) & (x)---Offences of cheating and criminal breach of trust--Appreciation of evidence---Benefit of doubt---Term "public-at-large"---Determination-For determination as to whether alleged cheating or criminal breach of trust affected public-at-large, prosecution was obliged to bring on record that the accused was found guilty of defrauding the public-at-large----In the present case, prosecution produced ten witnesses to make out the offences, with which the accused was charged---Such small faction of the society could not fulfil the definition of the expression "public-at-large"--Attending circumstances suggested that case was wrongly brought within the ambit of S. 9 of National Accountability Ordinance, 1999---Matter of recovery of a liability, either arising out of broken promise or from the dishonoured cheques should have been placed before the civil court through a recovery suit--Victims could approach the local police through a criminal case under S. 489-F Penal Code, 1960---Accused was acquitted of the charge, in circumstances.

Naseem Abdul Sattar and 6 others v. Federation of Pakistan and 4 others PLD 2013 Sindh 357 and Rafiq Haji Usman v. Chairman, NAB and another 2015 SCMR 1575 rel.

Nishat Ahmed Siddiqui for Appellant.

Muhammad Akram Rao, Special Prosecutor NAB and Muhammad Rasheed Qamar, DPGA for the State.

YLR 2017 LAHORE HIGH COURT LAHORE 2514 #

2017 Y L R 2514

[Lahore]

Before Abdul Sami Khan, J

MUHAMMAD AFZAL---Petitioner

Versus

MUHAMMAD SULTAN and others---Respondents

Criminal Miscellaneous No.1005-CB of 2016. decided on 16th November, 2016.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Application for cancellation of post-arrest bail---Grounds---Although accused was named in FIR, yet the fact remained that role assigned to him therein could not be established during course of investigation and accused was merely found present at the spot at the time of occurrence but did not cause any injury to the deceased---Complainant had never challenged the outcome of investigation in respect of accused either by moving application for change of investigation or by private complaint, which prima facie showed his satisfaction about the outcome of investigation---Allegations contained in FIR and facts emerged during course of investigation had made the case of two versions i.e. one put forward by complainant in FIR and the other came on record during investigation---As to which version was correct was to be determined by Trial Court after recording evidence---Challan had already been submitted before Trial Court and trial against accused had commenced, so at such stage it would not be in the fitness of things to recall the concession of post-arrest bail granted to accused by Trial Court after considering merits of case---Grounds for grant of bail and cancellation of bail were entirely different---For cancellation of bail very strong, exceptional and cogent reasons regarding misusing, abusing, hampering with prosecution evidence and repeating the same offence were required---No allegation was on record with regard to misusing or abusing of concession of bail against accused---Counsel for complainant had not addressed any argument before High Court in that regard so as to make basis for cancellation of bail---Application for cancellation of bail was dismissed in circumstances.

Ehsan Ullah v. The State 2012 SCMR 1137; Zaigham Ashraf v. State and others 2016 SCMR 18; Faisal Waheed v. The State 1999 PCr.LJ 882; Ehsan Akbar v. The State and 2 others 2007 SCMR 482; Mst. Noor Habib v. Saleem Raza and others 2009 SCMR 786 and Muhammad Azhar v. Dilawar and another 2009 SCMR 1202 rel.

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

----S. 497(5)---Cancellation of bail---Scope---For cancellation of bail very strong, exceptional and cogent reasons regarding misusing, abusing, hampering with prosecution evidence and repeating the same offence were required.

Faisal Waheed v. The State 1999 PCr.LJ 882; Ehsan Akbar v. The State and 2 others 2007 SCMR 482; Mst. Noor Habib v. Saleem Raza and others 2009 SCMR 786 and Muhammad Azhar v. Dilawar and another 2009 SCMR 1202 rel.

Mian Shahid Rasool for Petitioner.

Irfan Zia, Deputy Prosecutor General for the State and Umar, ASI with record.

YLR 2017 LAHORE HIGH COURT LAHORE 2524 #

2017 Y L R 2524

[Lahore]

Before Abdul Sami Khan, J

EHSAN ULLAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.7817-B of 2016, decided on 17th August, 2016.

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

----S. 497--- Bail--- Principle--- Only tentative assessment was required at bail stage.

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

----Ss. 497 & 161---Bail---Belated supplementary statement- Scope--- Belated supplementary statement had no value in the eyes of law and the same could not be considered as a substitute of FIR.

Falak Sher alias Sheru v. The State 1995 SCMR 1350 and Abid Ali alias Ali v. The State 2011 SCMR 161 rel.

----Ss. 497 & 161---Penal Code (XLV of 1860), Ss. 302, 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapon, common intention---Bail, grant of---Further inquiry---Accused was charged for the murder of deceased--Accused was not named in the FIR and had been introduced in the present case as an abettor of the offence through supplementary statement, which got recorded by the complainant after three months and eight days of the occurrence--Such belated supplementary statement had no legal value-Prosecution relied upon the evidence of two witnesses of joint extra judicial confession allegedly made by the accused along with co-accused, which was inadmissible in evidence---Admittedly neither any motive for committing or managing murder of the deceased had been mentioned by the complainant in FIR nor mentioned in his supplementary statement---Accused was previous non-convict and was never involved in any criminal case---Investigation against accused had been completed and his person was no more required for further investigation---Accused was behind the bars since his arrest and his continuous incarceration in jail would not serve any beneficial purpose---Facts and circumstances had made out a case for grant of bail---Circumstances established that case of accused called for further inquiry into his guilt within the purview of S. 497(2), Cr.P.C.---Accused was, admitted to bail in circumstances.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapon, common intention---Bail, grant of---Joint extra judicial confession---Prosecution had relied upon evidence of joint extra judicial confession---Effect---Extra judicial confession had the trapping of a joint confession, which was inadmissible in evidence---Accused was admitted to bail in circumstances.

Muhammad Waseem v. The State and another 2012 SCMR 387 rel.

Muhammad Akram Qureshi for Petitioner.

Irfan Zia, Deputy Prosecutor General for the State with Inayat, SI with record.

YLR 2017 LAHORE HIGH COURT LAHORE 2530 #

2017 Y L R 2530

[Lahore]

Before Abdul Sami Khan, J

KHALID KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.9796-B of 2016, decided on 1st September, 2016.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, grant of---Case of further inquiry---Complainant lodged FIR regarding murder of his son on information given to him by his nephew and other son---FIR was lodged against two unknown persons---Accused was not named in FIR---Supplementary statement was recorded by complainant after three days of occurrence and improved the story narrated in the FIR and introduced another accused to whom role of abetment was assigned---Complainant also changed motive through supplementary statement--Complainant and his son were previously known to accused because he was also nephew of complainant but they had not named accused in FIR---Recovery of 12-bore pistol could not provide help to prosecution as crime empties were not collected from place of occurrence by investigation officer on his first visit--Accused had no previous criminal record--Accused was admitted to post-arrest bail accordingly.

(b) Criminal trial---

----Supplementary statement of complainant---Evidentiary value---Supplementary statement had no evidentiary value in the eye of law.

Abid Ali alias Ali v. The State 2011 SCMR 161 rel.

Ch. Rashid Iqbal Wahgah for Petitioner.

Irrfan Zia, Deputy Prosecutor General for the State with Zia Ullah, ASI with record.

Peshawar High Court

YLR 2017 PESHAWAR HIGH COURT 16 #

2017 Y L R 16

[Peshawar (D.I. Khan Bench)]

Before Muhammad Ghazanfar Khan, J

MUHAMMAD RAMZAN and others---Petitioners

Versus

NASRULLAH and others---Respondents

W.P. No.307-D of 2015, decided on 21st April, 2016.

Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S.117(1)---High Court (Lahore) Rules and Orders, Vol. I, Part-M (i)---Suit for declaration--- Hadd Shikni--- Local commission, appointment of---Scope---Trial Court dismissed the suit but Appellate Court remanded the same with the direction to appoint fresh local commission for spot inspection---Local commission submitted his report which was confirmed by the Trial Court---Validity---Report of local commission and his statement recorded after objections by one of the parties was in derogation of instructions contained in High Court (Lahore) Rules and Orders, Vol. I, Part M (i)---Local commission had to follow the law and not to act upon the directions of the Court---Impugned order confirming report of local commission was not sustainable---Orders passed by the courts below were set aside---Trial Court was directed to appoint fresh local commission for inspection of spot according to High Court (Lahore) Rules and Orders---Constitutional petition was accepted in circumstances.

Muhammad Iqbal Khan for Petitioners.

Muhammad Sajid Awan for Respondents.

YLR 2017 PESHAWAR HIGH COURT 26 #

2017 Y L R 26

[Peshawar (Abbottabad Bench)]

Before Ikramullah Khan, J

HABIB AKBAR---Petitioner

Versus

Pir AZAM SYED---Respondent

Civil Revision No.198-A of 2008, decided on 31st August, 2016.

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

----O. XLI, Rr. 1, 2, 3, 9, 12, O. VII, R. 11(c), Ss. 96, 148 & 149---Court Fees Act (VII of 1870), Ss. 4, 5, 6, 12 & 28---Appeal--- Limitation--- Non-affixation of court fee---Effect---Appeal was filed within prescribed period of limitation and admitted for hearing giving notice to the opposite party but after that same was dismissed due to non-affixation of court fee on the point of limitation---Validity---No one could be punished for any act of the court---If appellant had not acted with mala fide intention while filing the appeal and same was admitted then appeal could not be dismissed on account of non-fixation of court-fee on the point of limitation---Sections 4 & 5 of Court-Fee Act, 1870 had placed bar on institution or receiving any document chargeable with court-fee unless proper court fee had been affixed thereon but S. 149, C.P.C. was an exception to the said rule---Court and its functionaries were bound to scrutinize the memorandum of appeal to ascertain whether same was properly stamped---Once appeal was admitted without objection or direction then it could not be rejected later on due to deficiency in court fee---Appellate court had to determine either on application of appellant or itself whether a case was made out for extension of time either under S. 149, C.P.C. or under Ss. 12 & 28 of Court-Fees Act, 1870---Appeal was dismissed without application of provision contained in O. VII, R. 11(c), C.P.C.---Impugned order was set aside and case was remanded to the Appellate Court with the direction to decide the same afresh after supplying requisite court-fee within thirty days by the appellant---Revision was allowed in circumstances.

Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 rel.

(b) Administration of justice---

----No one could be punished for any act of the court.

Tahir Hussain Lughmani for Petitioner.

Mohammad Ayaz for Respondent.

YLR 2017 PESHAWAR HIGH COURT 69 #

2017 Y L R 69

[Peshawar]

Before Qaiser Rashid Khan and Assadullah Khan Chamkani, JJ

HABIB KHAN---Appellant

Versus

SAJID MEHMOOD and another---Respondents

Criminal. Appeal No.364-P of 2012, decided on 30th September, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Role of accused was not distinguishable from acquitted accused---Same set of prosecution evidence, had been disbelieved by the Trial Court while recording acquittal of co-accused---No evidence had been led by the prosecution to distinguish the role of accused from acquitted co-accused to prove that it was only the firing of accused which hit the deceased---Accused had not confessed his guilt before the competent court of law; nor any crime weapon had been recovered, either from direct or indirect possession of accused or on his pointation---Doctrine of "Falsus in uno falsus in omnibus" had been done away within criminal justice system; and now the golden principle of "separating the grain from the chaff" was followed while appraising the evidence---No strong independent corroboration was found from unimpeachable source to distinguish the role of accused from that of acquitted accused, whose acquittal had attained finality---Trial Court proceeded on wrong premises while recording conviction of accused on the same set of evidence, already disbelieved qua acquitted co-accused---Conviction and sentence of accused, recorded by the Trial Court, were set aside; he was acquitted of the charge levelled against him, and was set at liberty, in circumstances.

Ghulam Sikandar v. Mamraz Khan PLD 1985 SC 11; Muhammad Banaras v. The State 2002 SCMR 1855 and Irfan Ali v. the State 2015 SCMR 840 ref.

Ishtiaq Ibrahim for Appellant.

Mian Arshad Jan, A.A.G. for the State.

Mohammad Saeed Khan and Malik Amjad Inayat for the Complainant.

YLR 2017 PESHAWAR HIGH COURT 95 #

2017 Y L R 95

[Peshawar (Abbottabad Bench)]

Before Qalandar Ali Khan, J

TAJ MUHAMMAD---Petitioner

Versus

MUBASHIR AHMED---Respondent

C.R. No.349-A of 2009, decided on 25th May, 2016.

Specific Relief Act (I of 1877) ---

----S. 12---Suit for specific performance of agreement to sell---Fraud---Requirements---Mortgaged property---Effect---Alleged agreement to sell was signed by the defendant/vendor in presence of two witnesses who had supported its execution---Execution of agreement to sell with free consent of defendant/vendor had been proved through overwhelming and cogent evidence by the plaintiff---Plaintiff had been delivered possession of suit property after redemption of the same from House Building Finance Corporation by the vendor---Mere mortgage of suit property would not make the agreement to sell as non-existent---Fraud had not only to be specifically alleged but also proved on record---No element of fraud or misrepresentation in the execution of agreement to sell had been proved---Judgments and decrees passed by the courts below were based on proper appreciation of available record---Revision was dismissed in circumstances.

2006 SCMR 340; 2010 SCMR 334; 2002 SCMR 134; 2000 SCMR 780; 1999 SCMR 2874; 1992 SCMR 1629; 1994 SCMR 111; 1985 SCMR 1966; 2006 CLC 1110; 2005 MLD 283; 1991 CLC 104; 2005 YLR 2456; PLD 1996 Lah. 99; 2004 CLC 1229; 1996 CLC 1708; 2010 CLC 1879; 1988 MLD 2159; 1987 CLC 798; PLD 1993 Quetta 121; 2015 SCMR 21; 2014 SCMR 161; 2010 SCMR 1116; 2006 SCMR 901; 1997 SCMR 837; 1989 SCMR 455; 1987 SCMR 1005; PLD 1993 SC 292; 1991 CLC 2056; PLD 1992 Lah. 366; 1989 MLD 4633; 1990 CLC 718; PLD 1983 Pesh. 225; PLD 1990 Pesh. 100 and 2005 CLC 1251 ref.

Muhamamd Rafiq Yousaf for Appellant.

S. Sajjad Hussain Shah for Respondent.

YLR 2017 PESHAWAR HIGH COURT 107 #

2017 Y L R 107

[Peshawar (Mingora Bench) Dar-ul-Qaza]

Before Abdul Latif Khan, J

Mian SAID HAKIM and 4 others---Petitioners

Versus

ABDAR KHAN and 4 others---Respondents

C.R. No.501 of 2012, decided on 15th April, 2014.

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

----O. I, R. 8---Qanun-e-Shahadat (10 of 1984), Arts. 77 & 118---Representative suit---"Serai" kind of land---Wajib-ul-Arz, entries of---Custom and convention, proof of---Scope---No application was moved under O. I, R. 8, C.P.C. with the representative suit for passing an order by the court with regard to permission to sue on behalf of the persons so interested---No public advertisement or personal service had been effected of all the persons through notice shown in the list annexed with the plaint in respect of plaintiffs as well as defendants which was mandatory and without the same such persons could not be considered as party to the suit---Persons mentioned in the list interested in the suit would be presumed that they were not served which was fatal to the case---Permission of the court had to be obtained in representative suit and in case of failure the same could not be termed as representative suit---Format of the suit was not in line with law which was fatal to the case---Present suit could not be termed as representative suit---Initial burden was on the plaintiffs to prove the existence of custom and convention who desired the court as to any legal right or liability dependent upon existence of such facts---Person who had asserted facts must prove the existence of the same---Record was silent with regard to existence of custom and convention and plaintiffs had failed to prove the same---Burden of proof would lie on the person who would fail if no evidence had been produced---Facts had to be proved in order to get relief with regard to such facts---Basic law of evidence could not be bypassed due to existence of any custom or convention---Custom and convention could not be placed at higher pedestal to the law---No documentary evidence was on record with regard to the fact that property situated in village on the bank of river was "Serai" kind of land---No one from the village had been produced to fortify the claim of plaintiffs---No date, time or year had been mentioned in the plaint with regard to the fact as to when river changed its course and plaintiffs reoccupied the suit property nor same had been fortified through evidence---Plaintiffs did not approach the settlement authority during settlement proceedings which continued for more than six years---Plaintiffs had not produced any tangible evidence to substantiate their claim or make out a case for grant of decree in their favour---Neither boundaries of suit property nor quantum of the same erosioned by the river or leftover had been mentioned in the plaint nor same had been fortified through evidence---Plaintiffs could not take benefit of the provisions of "Wajib-ul-Arz" as they had failed to prove their possession over the suit property prior to erosion of the same---Both the courts below had arrived at the conclusion in accordance with law---No infirmity had been pointed out in the impugned judgments and decree passed by the courts below---Revision was dismissed in circumstances.

Raja Ali Shan v. Messrs Essem Hotels Limited and others 2007 SCMR 741 rel.

Shad Muhammad Khan and others v. Government of N.W.F.P. and others PLD 2011 Pesh. 172 distinguished.

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

----O. I, R. 8---Representative suit---Conditions---Conditions for representative suit were that persons in the same must be numerous; they must be interested in the suit; permission of court should be obtained and notice must be given to the persons whom the same was sought to represent.

---Meaning---"Wajib-ul-Arz" speaks about the fact that property lost due to river flow and thereafter when changed its course, on its emergence, the land became the ownership of those persons from whose possession, same was eroded.

Raja Ali Shan v. Messrs Essem Hotels Limited and others 2007 SCMR 741 rel.

Zia-ur-Rehman for Petitioners.

Muhammad Iqbal Khan for Respondents.

YLR 2017 PESHAWAR HIGH COURT 126 #

2017 Y L R 126

[Peshawar (Abbottabad Bench)]

Before Qalandar Ali Khan, J

SHARAFAT KHAN---Appellant

Versus

The STATE---Respondent

Cr. A. No.111-A of 2013, decided on 10th February, 2016.

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

----S. 9(c)---Possession, import and export, trafficking or financing the trafficking of narcotic drugs---Appreciation of evidence---Charas weighing 25000 grams was alleged to have been recovered from possession of the accused---Trial Court sentenced the accused to undergo life imprisonment along with payment of fine---Positive report of Forensic Science Laboratory, confirming the recovery of Charas, had substantiated the prosecution version---Prosecution had not only placed on the record the report of the Chemical Examiner but also produced witnesses, besides the complainant and marginal witnesses, to the recovery memo in order to prove taking samples from each packet, sealing of the same in separate parcels on the spot immediately after the recovery and their safe custody till the samples had been received in the Forensic Science Laboratory on day of the recovery without having been tampered with during that period---Court, in order to arrive at just decision, had taken extraordinary step to open the sack and also the packets; said exercise had further reaffirmed the fact the complainant had taken samples from a corner of each slab in the packet---Complainant/SHO had recorded a note on the recovery memo to the effect that the place of occurrence was although busy road but despite of his efforts no one from the public had volunteered to become witness to the recovery---Accused had failed to discharge the burden to prove existence of malice on part of the police for his false implication---High Court observed that it was beyond imagination that the police would have stooped so low to substitute an innocent person for the real culprit and implicate him in a case of recovery of such a huge quantity of contraband, when nothing existed on the record to impute the devilish role of police, that too at the behest of a person whose very nexus with the case was not established---Prosecution witnesses remained consistent and coherent regarding material facts of the case---Accused had declined to avail the opportunity of both recording his statement on oath as his own witness and producing defence---Appeal was dismissed accordingly.

(b) Criminal trial---

----Police witnesses, credibility of----Principles---Police witnesses are as good witnesses as any other witnesses, unless malice can be established against them.

Abdus Saboor Khan for Appellant.

Muhammad Naeem Abbasi, A.A.G. for Respondent.

YLR 2017 PESHAWAR HIGH COURT 150 #

2017 Y L R 150

[Peshawar (Abbottabad Bench)]

Before Qalandar Ali Khan, J

LIAQAT ZAMAN KHAN and others---Appellants

Versus

Mst. TAZEEM AKHTAR and others---Respondents

R.F.A. No.252-A of 2011, decided on 23rd February, 2015.

(a) Succession Act (XXXIX of 1925)---

----Ss. 373(3), 384, 387 & 388--- Application for succession certificate---Procedure--- Issuance of succession certificate during pendency of declaratory suit--- Validity--- Holder of succession certificate--- Liability towards rightful claimant--- Succession certificate---Revocability---Proof of divorce of wife of deceased---Requirement---Status of widow--- Determination--- Presumption---Application for issuance of succession certificate by widow of deceased---Respondents took plea that the deceased had divorced the applicant during his lifetime, and only they being brothers and sisters were entitled to his legacy---Respondents (brothers and sisters) also filed a suit for declaration claiming themselves as sole legal heirs of the deceased and applicant as his divorcee having no right in legacy---Trial Court issued succession certificate in favour of applicant (widow) and respondents on the ground that court, under S. 373(3) of Succession Act, 1925, could proceed with succession application even while leaving aside issues relating to intricate questions of fact and law to be resolved by competent court and taking into account the obvious factual position---Contention raised by respondents was that succession certificate could not be issued during pendency of civil suit and without resolution of question as to divorce of applicant---Validity---Safeguard was provided to rightful claimant and liability of holder of succession certificate to rightful claimant under S. 387 of Succession Act, 1925---Trial Court clearly found that applicant would be considered as widow of deceased unless and until her alleged divorce was established by decree of civil court and that in case in the suit the applicant was declared as divorcee of the deceased, she would be bound to return share she would collect from the legacy---Law allowed Court to grant certificate to applicant who appeared to be a person having prima facie the best title thereto, notwithstanding a rival claim appearing intricate and difficult to determine in summary proceedings---Nothing was wrong with impugned order of Trial Court after Nikkah was proved and the divorce could not be proved from record by respondents in summary proceedings for issuance of succession certificate---Appeal was dismissed in circumstances.

(b) Succession Act (XXXIX of 1925)----

----S. 387---Holder of succession certificate---Liability---Safeguard is provided to rightful claimant and liability of holder of succession certificate to rightful claimant under S. 387 of Succession Act, 1925.

----S. 42---Suit for declaration---Status of widow--- Determination--- Presumption---Petitioner/widow would be considered as widow of deceased unless and until her alleged divorce was established by decree of civil court.

Ms. Mehraj Tareen for Petitioners.

Abdur Rehman Qadir and Mirza Muhammad Shoukat for Respondents.

YLR 2017 PESHAWAR HIGH COURT 174 #

2017 Y L R 174

[Peshawar]

Before Waqar Ahmad Seth and Muhammad Younis Thaheem, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA and others---Petitioners

Versus

MUHAMMAD INAM KHAN and others---Respondents

W.P. No.1887-P of 2015, decided on 17th November, 2015.

Khyber Pakhtunkhwa Public Property (Removal of Encroach-ment) Act (V of 1977)---

----S. 3---Unauthorized occupant---Determination---Authorities issued notice to respondent directing him to vacate shops within three days---Suit filed by respondent was decreed in his favour by Tribunal and the notice was declared as null and void---Validity---Respondent had been depositing rent through Court which had attained finality---Relationship of tenant and landlord was established and authorities failed to prove respondent as unauthorized occupant---Judgment of Tribunal was well reasoned, based on settled principles of law and provisions of Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977, were not applicable---Constitutional petition was dismissed in circumstances.

Mian Arshad Jan, A.A.G. for Petitioners.

Aurangzeb for Respondents.

YLR 2017 PESHAWAR HIGH COURT 199 #

2017 Y L R 199

[Peshawar]

Before Mazhar Alam Khan Miankhel, C.J.

RAZA QULI KHAN and others---Petitioners

Versus

MAHMUD JAN and others---Respondents

Civil Revision No.287-P of 1998, decided on 2nd May, 2016.

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

----S.42---Suit for declaration---Mutation---Scope---Contention of plaintiffs was that they were owners in possession of suit land and impugned mutations were result of fraud and collusion---Suit was decreed concurrently---Validity---Defendants being beneficiaries of transactions were bound to prove the same through cogent and reliable evidence but they had failed to discharge their burden---Long standing entries in the revenue record were in the names of defendants but same were not helpful for them as foundation of the said entries was doubtful---Mutations were prepared for fiscal purposes and to maintain the record of rights up-to-date---Mutation could not create any title---Entering a mutation or reporting a factum of acquisition of any right in the property with patwari was a ministerial act which could not confer or extinguish any right in the property unless acquisition of any right was established through evidence---Suit was rightly decreed by the courts below---Impugned judgments passed by the courts below were based on proper appreciation of evidence---Revision was dismissed in circumstances.

Khalil Ahmad v. Abdul Jabbar Khan and others 2005 SCMR 911 rel.

(b) Mutation---

---Mutation does not create any title.

Ghulam Mohayuddin Malik for Petitioners.

Abdul Sattar Khan for Respondents.

YLR 2017 PESHAWAR HIGH COURT 222 #

2017 Y L R 222

[Peshawar (Mingora Bench) Darul Qaza]

Before Lal Jan Khattak, J

UMARA KHAN---Petitioner

Versus

Mst. REKHAM ZARINA through L.Rs. and 6 others---Respondents

C.R. No.83-M of 2014, decided on 12th May, 2016.

Civil Procedure Code (V of 1908)---

----O. VII, Rr. 11, 13 & O. II, R. 2---Second suit on same cause of action---Plaint, rejection of---Res judicata, principle of---Applicability---Plaintiff filed suit wherein defendants moved an application for rejection of plaint which was accepted concurrently---Contention of plaintiff was that issue in the earlier suit had no nexus with the issue which was subject matter in the present plaint---Validity---Plaintiff had brought second suit on same facts and cause of action---Fresh plaint could be filed after rejection of earlier plaint but it could not be contemplated that in all cases plaintiff could be allowed to bring second plaint on same cause of action---When plaint was rejected for non-fixation of court fee or for any other technical reason, plaintiff could bring second suit on same cause of action subject to law of limitation---If plaint was rejected on merit after proper adjudication of issue, second suit would operate as res judicata---Plaintiff could not be allowed to file second suit if facts were subject matter of the earlier suit---Both the courts below had properly attended to the facts of the case---No illegality had been pointed out in the impugned orders passed by the courts below---Revision was dismissed in circumstances.

2009 SCMR 1079 rel.

Amjad Hussain for Petitioner.

Ahmad Shah Khan for Respondents.

YLR 2017 PESHAWAR HIGH COURT 229 #

2017 Y L R 229

[Peshawar]

Before Nisar Hussain Khan and Muhammad Daud Khan, JJ

RAZ MUHAMMAD---Petitioner

Versus

CHIEF SECRETARY GOVERNMENT OF KHYBER PAKHTUNKHWA and 5 others---Respondents

Review Petition No.209-P of 2015 in W.P. No.1368 of 2013, decided on 16th June, 2016.

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

----S. 114---Limitation Act (IX of 1908), Art. 162--- Review--- Requirements---Limitation---Order for which review was sought must suffer from any error apparent on the face of record and permitting the same to stand would lead to failure of justice---Judgment/order in absence of such error could not be disturbed---Review Court did not sit in appeal over its own order---Re-hearing of the matter in review was not permissible in law---Once judgment was signed or pronounced it should not be altered---Review could only be sought for correction of a mistake and not to substitute a view---Court had passed the judgment/order under review with conscious application of mind and keeping in view the material available on file---High Court observed that if applicant was aggrieved, he could have approached the Supreme Court for relief against the judgment under review instead of filing present petition---Present review petition had been filed after twenty six days which was time barred---Review was dismissed in circumstances.

Mian Rafiq Saigol v. Bank of Credit and Commerce International (Overseas) Ltd. PLD 1997 SC 865; Sajid Mehmood v. Muhammad Shafi 2008 SCMR 554 and Ali Ahmad v. Muhammad Iqbal 2009 SCMR 394 rel.

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

----Art. 162---Judgment of High Court---Review---Limitation---Review of judgment of High Court could be sought within twenty days.

----S. 3---Suit, appeal or application filed after period of limitation---Scope---Suit, appeal or application filed after the period of limitation to be dismissed.

Muhammad Usman Khan Turlandi for Petitioner.

Sabahuddin Khattak and Rab Nawaz Khan A.A.G. for Respondents.

YLR 2017 PESHAWAR HIGH COURT 243 #

2017 Y L R 243

[Peshawar]

Before Qaiser Rashid Khan and Assadullah Khan Chamkani, JJ

USMAN GHANI---Appellant

Versus

OWAIS REHMAN and another---Respondents

Criminal Appeal No.568-P of 2013, decided on 3rd December, 2015.

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

----Ss. 302(b)/34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Unexplained delay of three hours in lodging report, prima facie indicated towards absence of prosecution witnesses on the spot at the time of incident, procurement of their attendance during that time, and lodging of report after deliberation and consultation---Complainant, while appearing as prosecution witness, deviated from his version set forth by him in his initial report---Unnatural conduct of prosecution witnesses, who were brothers of the deceased, like silent spectators at the scene of occurrence, was a strong circumstance which spoke about their absence at the time of incident---Axe, a crime weapon, neither had been recovered from direct or indirect possession of accused, nor it had been examined through any Fingerprint Expert---Prosecution had failed to prove the guilt of accused through cogent and confidence inspiring evidence beyond shadow of reasonable doubt---Trial Court, had not appreciated the available evidence in its true perspective, and reached an erroneous conclusion by holding accused guilty of the offence---Prosecution evidence being pregnant with doubt, benefit of which was to be extended to accused, not as a matter of grace or concession, but as matter of right---Conviction and sentence of accused recorded by the Trial Court, vide impugned judgment, were set aside; accused was acquitted of the charge levelled against him, and was ordered to be released from jail forthwith.

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 FC 123; Farman Ali and others' case PLD 1980 SC 201 and Muhammad v. Pesham Khan 1986 SCMR 823 ref.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Testimony of close relative of the deceased---Scope---Conviction could be recorded on the basis of testimony of close relative of the deceased, provided same was trustworthy, confidence inspiring and corroborated by other strong circumstances of the incident---Besides, a witness who claimed to be the eye-witness of the incident, must satisfy the mind of the court about his/her presence on the spot at the relevant time of incident, through some strong circumstances of the case.

----S. 302(b)--- Qatl-i-amd--- Evidence, appreciation of---Chance witness, meaning and scope---Chance witness, in legal parlance, was a witness who claimed his presence on the spot at the eventful time, albeit his presence on the spot was a sheer chance, as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot, but at a place where he resided, carried on business or ran day to day affairs---Testimony of a chance witness, in such context, was ordinarily not accepted, unless justifiable reasons were shown to establish his presence at the crime scene at the relevant time as a normal course---Presumption under the law that would operate, would be that such witness was absent from the crime spot---In rare cases, the testimony of a chance witness, could be relied upon, provided some convincing explanation appealing to prudent mind of his presence on the crime venue were put forth, when the occurrence took place, otherwise, his testimony would fall within the category of suspect evidence and could not be accepted without a pinch of salt.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 11 ref.

(d) Criminal trial---

----Benefit of doubt---Rule---Benefit of doubt, was to be extended to accused, not as a matter of grace or concession, but as a matter of right, one substantial doubt would be enough for acquittal of accused---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 that ten guilty persons be acquitted rather than one innocent person be convicted", which occupied a pivotal place in the Islamic Law.

Muhammad Khan and another v. The State 1999 SCMR 1220 and Muhammad Ikram v. The State 2009 SCMR 230 ref.

Jalalud Din Akbar Azam and Farmanullah Silab for Appellant.

Mian Arshad Jan A.A.G. for the State.

Muhammad Saeed Khan for the Complainant.

YLR 2017 PESHAWAR HIGH COURT 278 #

2017 Y L R 278

[Peshawar]

Before Mohammad Ibrahim Khan, J

ZAKRIYA---Petitioner

Versus

The STATE and another---Respondents

Cr. M.B.A. No.1741-P of 2016, decided on 26th August, 2016.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324 & 34---Qatl-i-amd, common intention--- Bail--- Further inquiry---Complainant (deceased) in an injured condition gave statement that he was accompanied by his brother when three accused persons came and started firing at them---One assailant was named in FIR---Motive was telephonic threat of dire consequences by named accused---Trial Court dismissed bail application---Dying declaration of complainant was supported by medical evidence, statement of his brother and other corroborative evidence---Nothing was brought in rebuttal to disbelieve dying declaration---Petitioner (accused) was named in FIR who failed to make out case of further inquiry into his guilt---Bail was declined to him---Case of co-accused, however, was based on different footings, he was named in statement under S. 164, Cr.P.C. but not in FIR---Non-holding of identification parade in his case, casted shadow of doubt---Bail was granted to co-accused in circumstances.

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

----Art. 46--- Dying declaration---Evidentiary value---Scope.

Syed Abdul Fayyaz for Petitioner.

Muhammad Nisar and Malik Nasruminallah for the Complainant.

Waqar Ahmad, A.A.G. for the State.

YLR 2017 PESHAWAR HIGH COURT 290 #

2017 Y L R 290

[Peshawar (Mingora Bench) Dar-ul-Qaza]

Before Muhammad Younis Thaheem, J

TEHSIL MUNICIPAL OFFICER GAGRA---Petitioner

Versus

Syed SALAR JEHAN and 3 others---Respondents

C.M. No.726-M in C.R. No.242-M of 2016, decided on 29th August, 2016.

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

----O. XXXIX, Rr.1 & 2---Temporary injunction, grant of---Ingredients---Ingredients for grant of temporary injunction were prima facie case, irreparable loss and balance of inconvenience.

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

----S. 56(d)---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Temporary injunction interfering with public duties of any government department---Scope---No injunction could be issued to hamper the public work being performed by the public department amounting to restrain smooth running of government business.

Shahzada Muhammad Umar Baig v. Sultan Mehmood Khan and others PLD 1970 SC 139 rel.

Abdul Qayum for Petitioner.

Sabir Shah, A.A.G. for the Respondents Nos. 3 and 4.

YLR 2017 PESHAWAR HIGH COURT 301 #

2017 Y L R 301

[Peshawar]

Before Haider Ali Khan, J

ASGHAR ALI KHAN and 4 others---Petitioners

Versus

JANAN and 15 others---Respondents

C.R. No.165-B of 2014, decided on 1st June, 2016.

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

----S. 14(2)---Civil Procedure Code (V of 1908), O. VII, R. 11---Arbitration agreement---Making award rule of court---Procedure---Arbitrators gave award---Respondents refused to implement the said decision---Application for making award as rule of court was moved wherein petition for rejection of the same was filed which was accepted---Validity---Arbitrator had to file the award in the Court either at the request of a party or on the direction of the Court---Court would then give notice to the parties of the filing of award and thereafter it had to see whether same could be made rule of court or not---Party could not file award in the court to make the same rule of the court when award prior to getting the authentication and sanction of the court had been acted upon between the parties---When law required a thing to be done in a certain and particular manner then it should be done in that manner---Findings recorded by the courts below were convincing and elaborate---Revision was dismissed in circumstances.

(b) Administration of justice---

----Law favours adjudication upon merit.

----When law required a thing to be done in a certain and particular manner then it should be done in that manner.

Asghar Ali Khan for Petitioners.

Asghar Nawaz for Respondents.

YLR 2017 PESHAWAR HIGH COURT 318 #

2017 Y L R 318

[Peshawar (Mingora Bench) Dar-ul-Qaza]

Before Muhammad Daud Khan and Haider Ali Khan, JJ

The STATE---Appellant

Versus

MUHAMMAD RAHMAN---Respondent

Cr.A. No.281-M of 2014, decided on 4th November, 2015.

Penal Code (XLV of 1860)---

----S. 302---Arms Ordinance (XX of 1965), S. 13---Criminal Procedure Code (V of 1898), S.417---Qatl-i-amd---Appreciation of evidence---Appeal against acquittal---Complainant had alleged that accused (father of complainant) had fired with pistol at his mother who died on the spot---Motive was alleged to be tense family relations---Prosecution produced witnesses to prove their stance---Motive was not proved and there was no detail of tense relations in the FIR---Statements of witnesses did not support each other---Medical report showed a lacerated wound on left cheek caused by sharp weapon, which was not mentioned in the FIR or statement of witnesses---Pistol was recovered 42/43 days after the occurrence from dwelling room of accused and prosecution failed to explain that accused came back to his dwelling place for placing pistol in the box---FIR was lodged with delay of 5-hours which extended to 22/24 hours when the fact of developed rigor mortis on the dead body was considered as mentioned by the doctor in her report---Site plan did not agree with ocular account---Prosecution failed to prove guilt of accused---Appeal against acquittal was dismissed accordingly.

Sabir Shah A.A.G. for Appellant.

Mujahid Farroq for Respondent.

YLR 2017 PESHAWAR HIGH COURT 335 #

2017 Y L R 335

[Peshawar (Mingora Bench) Dar-ul-Qaza]

Before Muhammad Younis Thaheem, J

SAEED AHMAD---Petitioner

Versus

AMJAD ALI and another---Respondents

Cr.M.BA. No.311-M of 2016, decided on 23rd August, 2016.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---Complainant had alleged that accused persons had murdered deceased---Accused along with co-accused was named in FIR but no specific role was assigned to any of the accused persons---Case of accused fell within the ambit of further inquiry---FIR was lodged with delay of more than one year---Accused remained fugitive from law for a long period for the reason that he was taken into custody by Army for interrogation for his terrorist activities---Bail was allowed.

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

----S.497---Bail---Case of further inquiry---Abscondance of accused---Effect---Abscondance of accused by itself was no ground for refusal of bail, if otherwise, case of accused was of further inquiry.

Ehsan Ullah v. The State 2012 SCMR 1137; Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182; Ibrahim v. Hayat Gul and others 1985 SCMR 382 and Qamar alias Mitho v. The State and others PLD 2012 SC 222 rel.

Fazli Ghafoor for Petitioner.

Sabir Shah, A.A.G. for the State.

Complainant No.1 in person.

YLR 2017 PESHAWAR HIGH COURT 355 #

2017 Y L R 355

[Peshawar (Abbottabad Bench)]

Before Abdul Latif Khan, J

ZAMURAD KHAN---Petitioner

Versus

SABIR KHAN---Respondent

C.M. No.197-A of 2009, decided on 20th June, 2014.

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

----Art. 181 & Ss. 5 & 14---Civil Procedure Code (V of 1908), S. 12(2)---Transfer of Property Act (IV of 1882), S.52--- Lis pendens, principle of--- Applicability--- Decree, setting aside of---Limitation---Condonation of delay---Exclusion of time consumed in wrong forum---Sufficient cause---Due diligence---Good cause---Scope---Three years period for filing an application under S. 12(2), C.P.C. had been provided---Present application under S.12(2), C.P.C. had been filed after lapse of three years, eight months and seven days which was barred by time---Applicants remained busy before wrong forum without any justification---No sufficient cause or due diligence had been shown in prosecuting the said application in good faith before wrong forum---Rights of plaintiffs would not be affected from the transaction as property in question had been purchased during the pendency of suit---Applicants were bound to get them impleaded in the suit proceedings after acquiring of property through purchase---Applicants were having knowledge of pendency of suit but they intentionally not applied for their impleadment---Applicants were required to purchase the property after ascertaining the actual position/ ownership and reasonable care and caution--- Time spent in pursuing the proceedings before wrong forum could not be excluded and to invoke the provision of S.5 of Limitation Act, 1908 sufficient cause had to be shown---Conditions precedent in Ss. 14 & 5 of Limitation Act, 1908 were different and could not be equated---Powers of court under S. 5 of Limitation Act,1908 were discretionary in nature whereas those under S. 14 of said Act were mandatory---No reasonable and sufficient cause for not preferring the application under S. 12(2), C.P.C. before the proper forum had been shown---Application was dismissed in circumstances.

Dr. Syed Sibtain Raza Naqvi v. Hydrocarbon Development and others 2012 SCMR 377 and Sarfraz v. Muhammad Aslam Khan and another 2001 SCMR 1063 rel.

(b) Words and phrases---

----"Sufficient cause"---Meaning---"Sufficient cause" was meant "circumstances beyond control of a party".

Malik Amjad Ali for Appellant.

Tanveer Ahmed Mughal for Respondent.

YLR 2017 PESHAWAR HIGH COURT 388 #

2017 Y L R 388

[Peshawar]

Before Qaiser Rashid Khan, J

Haji BAKHTIAR and 11 others---Appellants

Versus

Syed MUNAWAR SHAH BACHA---Respondent

R.F.A. No.196 of 2011, decided on 24th March, 2016.

Specific Relief Act (I of 1877)---

----S. 12---Contract Act (IX of 1872), S. 55---Suit for specific performance---Time as essence of contract---Scope---Contention of plaintiffs was that they had deposited the remaining sale price in the Bank by fulfilling the terms and conditions of sale deed---Suit was dismissed by the Trial Court---Validity---Plaintiffs were bound to produce the concerned Bank manager or officer in support of their version---No Bank manager/officer was produced in the Trial Court and only Bank statement was exhibited which was not helpful for the plaintiffs---Where stipulations with regard to payment of balance sale consideration and consequences of its default were incorporated in the agreement and accepted by the parties with their free will then parties had made their intention that time was essence of agreement---Plaintiffs had failed to abide by the stipulation with regard to payment of balance sale consideration within specified time and to prove execution of sale deed as well as payment of balance sale price---Court below had duly attended the evidence of the parties in its true perspective and had reached to a correct conclusion---No mis-reading or non-reading of evidence had been pointed out in the impugned judgment and decree passed by the Trial Court---Appeal was dismissed in circum-stances.

Abdul Hamid v. Abbas Bhai-Abdul Hussain Sodawaterwala PLD 1962 SC 1; Seth Essabhoy v. Saboor Ahmad PLD 1972 SC 39; Mohabbat v. Asadullah Khan and others PLD 1989 SC 112; Mst. Malkani v. Mst. Bakhat Begum and 13 others 2004 SCMR 1591; Rehmat Ali Ismailia v. Khalid Mehmood 2004 SCMR 361; Sher Khan and others v. Ghulam Qadir and others 2006 SCMR 659; Muhammad Hussain and others v. Dr. Zahoor Alam 2010 SCMR 286; Syed Sharif ul Hassan through L.Rs. v. Hafiz Muhammad Amin and others 2012 SCMR 1258 and Syed Hussain Naqvi and others v. Mst. Begum Zakara Chatha through L.Rs. and others 2015 SCMR 1081 ref.

Hafeez Ahmad v. Sain and others 2003 SCMR 1185; Muhammad Yousaf v. Mst. Maqsooda Anjum and others 2004 SCMR 1049; Mst. Saadat Sultan and others v. Muhammad Zahur Khan and others 2006 SCMR 193; Mustafa Kamal and others v. Daud Khan and others 2009 SCMR 221; Muhammad Tariq and others v. Mst. Shamsa Tanveer and others PLD 2011 SC 151 and Liaqat Ali Khan and others v. Falak Sher and others PLD 2014 SC 506 rel.

Zia-ur-Rehman Khan for Appellants.

Muhammad Taif Khan for Respondent.

YLR 2017 PESHAWAR HIGH COURT 416 #

2017 Y L R 416

[Peshawar (Abbottabad Bench)]

Before Qalandar Ali Khan, J

IMRAN ORAKZAI---Appellant

Versus

SAMI UL HAQ---Respondent

R.F.A. No.95-A of 2011, decided on 8th June, 2016.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3---Negotiable Instruments Act (XXVI of 1881), S. 118---Qanun-e-Shahadat (10 of 1984), Art. 17(2)(a)---Stamp Act (II of 1899), Ss. 36, 49 & 53---Suit on the basis of promissory note---Negotiable instrument---Presumption--- Scope--- Trial Court dismissed the suit on the ground that promissory note was inadmissible in evidence for want of proper stamp duty---Validity---Promissory note had already been admitted in evidence of plaintiff without objection on behalf of defendant---Admission of promissory note could not be called in question at any stage of suit or proceeding in circumstances---Attestation of promissory note was not mandatory---Plaintiff had also produced one marginal witness of promissory note and scribe of the same---Statement of witness would not dislodge the presumption attached to the negotiable instrument with regard to its execution---Payment of consideration for the promissory note on the date it was executed was not necessary---Even consideration paid earlier in time would be a good consideration---If defendant did not owe any amount to the plaintiff, what prompted him to issue cheque for the amount which was dishonoured---Impugned judgment and decree passed by the Trial Court were not sustainable which were set aside---Decree for recovery of amount was granted after deduction of already paid amount---Appeal was allowed in circumstances.

1996 SCMR 575; 2000 CLC 296; 2003 CLD 224; PLD 2004 Lah. 95; NLR 1994 AC 661; 2000 YLR 2789; 2000 CLC 296 and 1990 CLC 1018 rel.

Muhammad Tariq Khan Tanoli for Appellant.

Hafiz Iftikhar Ahmed for Respondent.

YLR 2017 PESHAWAR HIGH COURT 461 #

2017 Y L R 461

[Peshawar]

Before Syed Afsar Shah and Ishtiaq Ibrahim, JJ

KHAN JAVED KHAN---Petitioner

Versus

The STATE and 5 others---Respondents

A.W.P. No.2701-P of 2015, decided on 20th September, 2016.

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

----Preamble---Object of Anti-Terrorism Act, 1997---Anti-Terrorism Act, 1997 was enacted for the prevention of terrorism, sectarian violence and speedy trials of heinous offences.

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

----S. 12---Anti-Terrorism Court, jurisdiction of---Scope---Two categories of offences clearly come within the domain of the Act firstly those relating to sectarianism, militancy, violence against public servant and abduction for ransom etc. and secondly where the nature of offence was so shocking, brutal and sensational, which created sense of insecurity and destabilized public at large.

PLD 1997 Central Statutes 535 and PLD 2002 Central Statutes 107 rel.

----S. 23---Power of Judge, Anti-Terrorism Court---Transfer of case to regular Court---Scope---Petitioner had alleged that Anti-Terrorism Court had transferred the case to the ordinary court without framing charge and recording evidence, which was against S.23 of the Act---Power to transfer the case to the ordinary/regular court could be exercised by the Anti-Terrorism Court at any stage of the case.

2000 SCMR 785 rel.

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

----Ss. 302, 324, 109, 148 & 149---Explosive Substances Act (VI of 1908), Ss. 3 & 4---Anti Terrorism Act (XXVII of 1997), Ss. 6 & 7---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting, causing explosion, act of terrorism---Jurisdiction of Anti-Terrorism Court---Scope---Case was transferred by the Special Court constituted under Anti-Terrorism Act, 1997 to an ordinary court on the ground that occurrence was the result of personal enmity between the parties, therefore case did not fall under the jurisdiction of Anti-Terrorism Court---Petitioner had assailed the said order with the assertion that occurrence had taken place during election campaign of the complainant when six persons were done to death and two were injured and that act of accused persons was designed to create fear and sense of insecurity amongst the public-at-large---Post-mortem reports of two deceased showed that they sustained blast injuries, which brought the case within jurisdiction of Anti-Terrorism Court---Accused persons had alleged that occurrence took place on account of family feud and had no nexus with terrorism and that case of personal vendetta did not fall within the jurisdiction of Anti-Terrorism Court---Validity---Admittedly, six persons were shot dead and two were injured during the occurrence---Accused persons had chosen the days of election campaign of the complainant for committing the offence---Post-mortem reports of two deceased showed that firearms and hand grenades were used in the occurrence as they had received "Blast Injuries" during ambush made by the accused---Provisions of Ss.6(ee) & 7(ff) of the Anti-Terrorism Act, 1997 were attracted in the incident in circumstances---Mode of occurrence indicated that it was neither the case of sudden flare up nor that of provocation---Incident was pre-planned under the garb of family feud with design to cause fear and sense of insecurity amongst the public and people of the constituency of the complainant---Circumstances had brought the case of complainant within the jurisdiction of Anti Terrorism Court---Constitutional petition was allowed and case was sent to the Anti-Terrorism Court.

2012 SCMR 517; PLD 2016 SC 17; 2007 SCMR 142; PLD 2005 Pesh. 57; 2013 YLR 92; 2011 MLD 950 and PLD 2003 Lah. 267 ref.

Shabbir Hussain Gigyani for Petitioner.

Ghulam Nabi for Respondents Nos. 3 to 6.

Rab Nawaz A.A.G. for the State.

YLR 2017 PESHAWAR HIGH COURT 481 #

2017 Y L R 481

[Peshawar (Mingora Bench) Dar-ul-Qaza]

Before Nisar Hussain Khan and Waqar Ahmed Seth, JJ

SHEHZADA AMAN-E-ROME and others---Petitioners

Versus

The FEDERATION OF PAKISTAN and others---Respondents

W.P. No.356-M of 2012, decided on 7th February, 2013.

(a) Land Reforms Regulation, 1972 (M.L.R. 115)---

----Paras. 4, 5, 7, 26 & 29---Land Reforms Act (II of 1977), Ss. 21 & 28---Constitution of Pakistan, Arts. 199 & 10-A--- Constitutional petition---Scope---Federal Land Commission---Allotment of land---Due process of law---Right of fair trial---Audi alteram partem, principle of---Applicability---Contention of petitioners was that they were necessary party to the lis but they were neither impleaded nor any notice was issued to them while making allotment of land---Validity---Ouster clauses of Para 26 of Land Reforms Regulation, 1972 (M.L.R 115) and S. 28 of Land Reforms Act, 1977 were with regard to such orders which were made in accordance with law---When an order was passed in colourful exercise of powers and in violation of norms of justice, same could not be immuned from the judicial scrutiny nor a subservient legislation could abridge the Constitutional powers of High Court---Article 199 of the Constitution could postulate to strike down those orders and performance of functions which had been done or taken without lawful authority---Any order passed in colourful exercise of powers or in violation of any statutory command was an order without jurisdiction---Authority or tribunals were vested with powers to decide the matters rightly or wrongly---Whenever a tribunal went wrong in law then it went outside its jurisdiction rendering its judgment/order as without lawful authority---Impugned orders of Federal Land Commission had been passed in derogation of statutory command and in violation of all norms of justice and they were amenable to constitutional jurisdiction of High Court---Proper procedure had not been adopted for grant of land in question---Federal Land Commission without verification of claims and hearing the other side had passed the impugned orders which could not be countenanced nor approved by any Court of law---Things were required to be done in the manner provided by law or not at all---Impugned orders being coram non judice could be challenged before the High Court in constitutional jurisdiction---Impugned orders had been passed in absence of all the interested parties who were going to be effected---Every tribunal or authority was bound to hear the other side before passing any order by which a party was going to be effected---Party going to be effected by the order had right of being heard before passing of such order---Every individual had right of fair trial both in civil as well as criminal proceedings---No concept of fair trial existed in absence of right of hearing or right of defence---Chairman Federal Land Commission had not only violated the principle of 'audi alteram partem, but also transgressed the Fundamental Right of the petitioners enshrined in Art. 10-A of the Constitution---Any order passed in violation of the provision of statute and in derogation of a guarantee enshrined in an Article of the Constitution was liable to be struck down being made or passed without lawful authority and of no legal effect---Impugned orders passed by the Federal Land Commission were set aside and mutations attested on the basis thereof were cancelled---Cases were remitted to Chief Land Commissioner with the direction to probe and verify the claims subject to declaration of Shariat Appellate Bench of Supreme Court---Commission should hear all the interested parties and decide the matter within specified time---Constitutional petition was allowed in circumstances.

Qazalbash Waqf's case PLD 1990 SC 99 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Alternate remedy---If alternate remedy was not adequate then High Court could interfere to rectify the error by setting the illegal order at naught.

----Things were required to be done in the manner provided by law or not at all.

Miangul Hassan Aurangzeb for Petitioners.

Rashid Ali Khan, Aftab Alam Haq Nawaz, A.A.G. and D.A.G. for Respondents.

YLR 2017 PESHAWAR HIGH COURT 515 #

2017 Y L R 515

[Peshawar (Abbottabad Bench)]

Before Ikramullah Khan and Qalandar Ali Khan, JJ

NOOR AHMED and 2 others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No.89-A of 2013, decided on 3rd May, 2016.

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

----Ss. 302(b), 364 & 34---Qatl-i-amd, kidnapping or abducting with intent secretly and wrongfully to confine person, common intention---Appreciation of evidence---Benefit of doubt---Deposition of one of the prosecution witnesses, had created serious dent in the prosecution case, which seemed to be manoeuvered one---No incriminating piece of evidence had been recovered from the alleged place of occurrence to substantiate the pointation allegedly made by accused persons---Prosecution witness had improved his statement recorded under S.161, Cr.P.C.---Investigating Officer deposed that supplementary statement of complainant had been recorded prior to statement of accused person under S.161, Cr.P.C.; which cast doubt as to how the rest of accused persons were charged by complainant without any authentic source of information---Such kind of investigation conducted by a responsible Police Officer, could not be termed as impartial investigation; which gave a strong inference that whole case was pre-planned and hatched to involve accused persons---No extract from the daily diary had been placed on record that when Investigating Officer left the Police Station for inspection of the spot---Accused persons, after recording their confessional statements, were handed over to Investigating Officer to be sent to judicial lock up---Recovery of mobile phone, was carried out within three days after arrest of accused, but the recovery memo had been prepared about 5 days of arrest of accused---No one had identified the mobile set allegedly recovered on pointation of accused to be the one used by the deceased---Confessional statements of accused persons were recorded while they were in Police custody---Third degree treatment on accused persons, could not be ruled out of consideration in getting confessional statements---No certificate under of S.164, Cr.P.C., had been affixed on alleged confessional statements of accused---Accused persons had no direct or indirect motive for commission of offence---Prosecution had not proved its case beyond reasonable doubt by producing any trustworthy, reliable and confidence inspiring evidence but whole case revolved around the alleged confessional statements of accused persons---Prosecution was legally bound to prove its case beyond any reasonable doubt; in case of even a single doubt on part of the prosecution, its benefit, would have to be extended to accused---Allowing appeal, conviction and sentences of accused persons, were set aside; they were acquitted of the charge and were ordered to be released forthwith.

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

----Ss. 164 & 364---Provisions of Ss. 164 & 364, Cr.P.C. were mandatory---Confession---Scope---Confession must not only be voluntary, but it must also be true and to ascertain its truthfulness, it was necessary to examine and compare the confession with the rest of the prosecution evidence to exclude any possibility or probability of any doubt qua its true character---Sole confession could be made basis for conviction, if it was actually made before the competent forum and was made voluntarily, thereafter removing all kinds of apprehension of giving back custody to Police, torture, coercion and inducement---Presence of Police during recording of confession was palpable on record---Such tainted piece of evidence, if not corroborated by attending circumstances of the case; could not be made the ground of conviction---Delay of four days in recording confessional statement, could not be made basis of conviction of accused---High degree of responsibility, care and duty was cast upon the Magistrate while recording confession to be satisfied that confession had been voluntarily made---Provision contained in S.364, Cr.P.C., prescribed in mandatory words as to how the confession be recorded by a Magistrate---Subsection (2) of S.364, Cr.P.C. had made it mandatory that Magistrate, who was to record confession of accused, would certify under his own hand that the examination took place in his presence and hearing, and that the record contained full and true account of the statement made by accused---Questions put to accused and the answers given by him would be distinctly and accurately recorded---Provisions of Ss.164 & 364, Cr.P.C., were mandatory and any illegality occasioned, was not curable---Magistrate was bound to record his statement that the confession was voluntary and in its true perspective as envisaged under S.364, Cr.P.C. and was not supposed to fulfil just a formality by giving a formal certificate, already in typed form.

Manjeet Singh v. The State PLD 2005 SC 30; Said Rasool v. Sajid and 3 others 2012 PCr.LJ 1699; Muhammad Parvez and others v. The State 2007 SCMR 670; Asif Mehmood v. The State 2005 SCMR 515 and Gul Jehan v. State 1998 MLD 288 rel.

Shah Mohammad Khan for Appellants.

M. Bilal Khan for Respondents.

YLR 2017 PESHAWAR HIGH COURT 564 #

2017 Y L R 564

[Peshawar (Mingora Bench) Dar-ul-Qaza]

Before Lal Jan Khattak and Muhammad Younis Thaheem, JJ

Haji AMIR RAHMAN and 3 others---Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Forest and Environment Department, Peshawar and 4 others---Respondents

Writ Petitions Nos. 593-M of 2014 and 192-M of 2016, decided on 7th June, 2016.

Khyber Pakhtunkhwa Forest Ordinance (XIX of 2002) ---

----Ss. 56, 110, 115 & 2(19)(b)(ii)---Forest produce--- Scope--- 'Banafsha' and 'Mashrooms'---Imposition of duty/tax---Scope---Government imposed duty/tax upon the local transport of 'Banafsha' and 'Mashrooms'---Contention of petitioner was that 'Banafsha' and 'Mashrooms' did not come under the ambit of forest product and impugned notification for imposing tax/duty on the said product was illegal---Validity---'Banafsha' was a medicinal herb and 'Guchi' (Morchella esculenta) was a kind of 'Mashrooms' and both were "forest produce"---Issuance of notification was sole discretion/prerogative of governmental authorities who had been delegated power to issue notification in public interest---Government could take step in order to boost up the governmental revenue resources---Nothing was available on record that authorities had bypassed its authority while issuing impugned notification---Constitutional petition was dismissed in circumstances.

Khalid Mahmood v. N.W.F.P. through Chief Secretary, Peshawar and 4 others PLD 2011 Pesh. 120 rel.

Sher Muhammad Khan and Muhammad Amin Khan for Petitioners.

Shamsher Ali Khan for Petitioners.

Sabir Shah, A.A.G. for the State.

Date of hearing: 7th June, 2016.

CONSOLIDATED JUDGMENT

MUHAMMAD YOUNIS THAHEEM, J.---Since through instant Writ Petition bearing No. 593-M of 2014 titled "Haji Amin Rahman and others v. Government of Khyber Pakhtunkhwa and others" and connected writ petition bearing No. 192-M of 2016 titled "Aurang Zeb and others v. Government of Khyber Pakhtunkhwa and others", the petitioners of both the connected petitions have challenged the impugned Notification No. SO (Tech)/ ED/V-105/ 2013/ Vol: VIII/ 431-440 dated 24/25.01.2014 issued by respondent No.1, vide which the government/respondents imposed duty/tax etc upon the local transport of 'Banafsha' and 'Mashrooms' (Guchi), therefore, these both are disposed of by way of this single judgment.

Brief facts of the cases are that petitioners are local inhabitants of District Swat, Malakand Division and running business of medicinal herbs 'Banafsha' and 'Black Mashrooms' locally known as 'Guchi'. The respondent No.1 i.e. Govt: of Khyber Pakhtunkhwa through Secretary Forest and Environmental Department, Peshawar issued the above-referred impugned notification and imposed duty/ tax or compensation upon the local transporters of 'Banafsha' and said 'Mashrooms'.
The respondents were put on notice, who submitted their comments, wherein it has been mentioned that the impugned notification has been issued in light of provision of the powers vested vide sections 110 and 115 of the Khyber Pakhtunkhwa Forest Ordinance, 2002 with adding information that 'Mushrooms and medicinal plants of 'Banafsha' have been a Forest Produce and squarely comes within the ambit of Section 2 (19) b (ii) of Khyber Pakhtunkhwa Forest Ordinance, 2002 read with rule-2 (1), of the Khyber Pakhtunkhwa Compensation for Forests Offences And Value of case property Rules, 2004.
The main stance of the petitioners is that the medicinal herbs of 'Banafsha' and 'Mushrooms' do not come under the ambit of Forest Produce, as 'Banafsha' is herb, while 'mashrooms' is considered as vegetable. In this regard, they also relied upon certain notifications placed on record, wherein it has been stated that after promulgation of the Forest Ordinance, 2002, the provincial government issued two Notifications on 15.02.2005 and 22.12.2005, wherein levy of duty/tax on the 'Banafsha' and 'Mashrooms' had been deleted, thus, the impugned notification by itself is contrary to ibid Forest Ordinance, 2002.
The respondents submitted their comments. In this respect Para No. 3 of the comments is reproduced as under:--

"3. Para No. 3 is incorrect and baseless hence denied. The Notification has been issued as per provision of the power vested vide sections 110 and 115 of the Khyber Pakhtunkhwa Forest Ordinance, 2002 "Annexure-A" read with Rule-2, (1), of the Khyber Pakhtunkhwa Compensa-tion for Forests Offence and value of case property Rules, 2004 " Annexure-B"

Similarly, reply to grounds i and j of writ petition are given as below:--

"Para (i) is incorrect. The Mushrooms and medicinal plants (Banafsha) have been listed as Forest Produce within the purview of Section-2 (19) b (ii) of Khyber Pakhtunkhwa Forest Ordinance 2002 "Annexure-E". Furthermore, the Mushrooms and medicinal plants are mainly growing in Natural Forests."

"Para (J) is incorrect. There are variety of Mshrooms growing naturally in Pakistan. Ghuchi (Morchella esculenta) grows naturally in the forest between 1800 to 3600 meters altitude from main sea level. Its habitats are often distinguished by the dominance of Forests trees species i.e. Rantol, (Rhondodendron arborertum), Barmi (Taxus baccata), Biar (Pinus wallichjana, Deodar (Cedrus deodara) Bhurj (Betula utilis), Juniper (Cupressus Juniperus), and important medicinal and aromatic plants. There are several scientific studies/research articles which are available on www.google.com. One of the general article" Morchella esculenta (Guchi) Need for scientific intervention for its cultivation in Central Himalya" is Annexure-F. One of the Mushrooms species namely "Morchella beliciosa" can grow on a very small scale in the fields of sugarcane naturally due to transportation of its spores (seeds) through irrigation water from high hills. These species have very lesser market value and of no export quality as compare to Guchi (Morchella esculenta). Therefore, the plea of the petitioners is baseless and incorrect as the Government of Khyber Pakhtunkhwa is only authorized to impose production duty on Mushrooms."

According to the comments and arguments of learned A.A.G. the 'Mushrooms' and 'Banafsha' are Forest Produce in view of Khyber Pakhtunkhwa Forest Ordinance 2002 while issuance of notification under aforesaid Ordinance is the sole prerogative and within the powers of provincial government under sections 56, 110 and 115, who is authorized to issue notifications in the public interest from time to time. So, provincial government had in the light of the above stated parameters issued Notification No. SO (Tech)ED/V-105/2013/vol; VIII dated 25.01.2014 under sections 110 and 115 of the Khyber Pakhtunkhwa Forest Rules, relevant portion of the same is reproduced as under:--

(ii) In columns Nos. 2 and 3 against Serial No. 6 for the existing entries in clause (b), the following duty/tax shall respectively be substituted namely:--

| | | | --- | --- | | Possession of Forest Produce | | | (b) Medicinal herbs and morels (green) | | | (i) All Medicinal herbs and | 100 per Kg | | (ii) Black mush-room (Guchi) | 500 per Kg |

Likewise, under section 56 of Khyber Pakhtunkhwa Forest Ordinance, 2002, the government is authorized to levy a duty, the same rule is given as below:--

"56. Duty and forest development charges on timber and other forest produce:

(1) Government may, by notification, levy a duty or forest development charges, or both in such manner, at such places and at such rates as may be prescribed on any timber or other forest produce which is..

(a) produced in the Province, or

(b) brought from any place outside the Province, or is transported from or through any place within the Province, or from beyond the frontier or elsewhere.

(2) In every case in which such duty or forest development charges, or both, are directed to be levied ad valorem, Government may fix, by notification, the value on which such duty or forest development charges, or both, shall be assessed.

(3) All duties on timber or other produce listed in Schedule-1 and all forest development charges, or both, which at the time when this Ordinance comes into force, are levied therein under the authority of Government, shall be deemed to have been duly levied under the provisions of this Ordinance:

Provided that the fees and forest development charges so levied shall not exceed in any case a fair estimate of twenty-five percent of the average market price realizable on the sales.

(4) The amount realized from duties and forest development charges shall be credited to the Forest Development Fund.

In the same sequence of comprehension, section 110 of Forest Ordinance, 2002 is reproduced for ready reference as under:--

110. Compounding of offence and payment of compensation... (1) A Forest Officer not below the rank of Divisional Forest Officer, on the application of the accused, may compound a forest offence in accordance with such procedure as may be prescribed.

(a) ..

(b) release any property seized as liable to confiscation under clause (a) or (b) of subsection (1) of section 77, on payment of the value thereof including compensa-tion for the timber or forest produce, notified by Government.

Underline is our to emphasize.

In light of the above discussed position, the only question, which needs to be dealt with by this Court is as to whether the 'Black Mashrooms' and' 'Banafsha' fall within purview of 'forest produce' or not and whether respondents/Department is authorized to issue such notification under Forest Ordinance, 2002.
First of all, it is pertinent to clarify here that there are numerous types of Mushrooms naturally grown in whole of Pakistan with distinct botanical nomenclatures and some special kind in the high snowfall area of Swat, Malakand Division, Khyber Pakhtunkhwa with botanically named as 'Morchella esculenta' and in native Pashto language as 'Guchi'.
The provisions given in Section 2(19)(b)(ii) of Khyber Pakhtunkhwa Forest Ordinance, 2002 are very much relevant provisions of the ibid Ordinance, wherein the Mushrooms and medicinal plants 'Banafsha' have been shown as 'Forest Produce'. Relevant provision of law is reproduced as under:--

Section 2(19)(b):-

(19) "forest produce" includes:

(a) the following wherever found timber, bark, charcoal, gum, natural varnish, resin, rosin, lac, wax, wood-oil and derivatives thereof:--

(b) the following when found in, or brought from a forest:

(i) trees, leaves, flowers, fruits, seeds, roots and all other parts or produce of trees including fuel wood;

(ii) plants, not being trees, including grasses, creepers, reeds, mosses, mushrooms, medicinal plants and brushwood, and all parts or produce of such plants and other non-wood produce.

(iii) .

(iv) .

(v) .

Underline is our to emphasize.

According to above-referred provision of law 'Banafsha' is a medicinal herb and 'Guchi' (Morchella esculenta) is a kind of Washrooms' and both are forest produce.
As far as issuance of notification in respect imposing of duty is concerned, the promulgation of notifications is sole discretion/prerogative of governmental authorities, who under the law envisaged under sections 56, 110 and 115 of Forest Ordinance, 2002 had been delegated power to issue notification in the public interest at large and can take a step in order to boost up the governmental revenue resources. So, the arguments advanced by the learned counsel for the petitioners that through delegated legislation duty or tax could not be imposed and if is imposed ultra vires that is not convincing arguments. In this respect wisdom is derived from the judgment of this Court in case titled as "Khalid Mahmood v. N.W.F.P through Chief Secretary, Peshawar and 4 others" (PLD 2011 Peshawar 120). Relevant part of the above referred judgment is reproduced as under:--

9. Reading section 56 of the Ordinance, reveals that the legislature has delegated the authority to the provincial government to levy a duty, inter alia, on import of timber into the province. This is "delegated" or "subordinate" legislation.

The concept of "delegated legislation", has gained momentum with the mushroom population growth, the dire need for "good governance" and the ultimate aim to cater for the essential basis needs of every segment of the society to bolster and fulfill the attributes of a "Islamic welfare State".

YLR 2017 PESHAWAR HIGH COURT 611 #

2017 Y L R 611

[Peshawar (D.I. Khan Bench)]

Before Muhammad Ghazanfar Khan and Haider Ali Khan, JJ

IQBAL HUSSAIN and others---Petitioners

Versus

P.D.K.P. SADP and others---Respondents

W.P. No.838-D of 2015, decided on 24th May, 2016.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Factual controversy---Scope---Factual controversy could not be adjudged without recording pro and contra evidence---Constitutional petition was not maintainable.

Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806 = 2005 PLC (C.S.) 1264 rel.

Saleemullah Khan Ranazai for Petitioners.

Rustam Khan Kundi, Barrister Armaghan Ashfaq and Adnan Ali, A.A.G. for Respondents.

YLR 2017 PESHAWAR HIGH COURT 630 #

2017 Y L R 630

[Peshawar (Mingora Bench) Dar-ul-Qaza]

Before Haider Ali Khan, J

Syed ZAHIR SHAH and another---Petitioners

Versus

Syed MUHAMMAD ALI SHAH BACHA and others---Respondents

C.R. No.224-P of 2005, decided on 23rd November, 2015.

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

----Art. 85---Public document---Presump-tion of truth---Scope---Presumption of truth was attached to the public document in absence of any cogent evidence to the contrary---Contention of plaintiff was supported by document to which defendants had failed to rebut through convincing evidence---Defendants had failed to prove their ownership with regard to suit property---Concurrent findings recorded by the courts below were based on sound reasons---No illegality or irregularity had been pointed out in the impugned judgments and decrees passed by the courts below---Revision was dismissed in circumstances.

Rashid Ali Khan for Petitioners.

Sardar Khan for Respondents.

YLR 2017 PESHAWAR HIGH COURT 666 #

2017 Y L R 666

[Peshawar (Mingora Bench) Dar-ul-Qaza]

Before Muhammad Daud Khan and Haider Ali Khan, JJ

ZARMENOSH and others---Petitioners

Versus

SIRAJ KHAN and others---Respondents

W.P. No.143-M of 2012, decided on 4th November, 2015.

Civil Procedure Code (V of 1908)---

----S. 47---Specific Relief Act (I of 1877), S. 12---Suit for specific performance---Disposing of suit on special oath---Execution petition---Objections---Scope---Plaintiffs offered special oath to the defendants which was accepted subject to delivery of possession of suit property to them immediately---Appeal filed by the plaintiffs was dismissed after administering the oath and Appellate Court directed the plaintiffs to hand over the possession of suit property to the defendants---Defendants moved execution petition wherein plaintiffs filed objection that order of Appellate Court was not executable as no decree could be passed in favour of defendants---Validity---Matter was settled by the parties with their mutual agreement through administering special oath subject to condition that plaintiffs would hand over possession of suit property to the defendants---Order with regard to accepting offer of special oath had attained finality---Plaintiffs were legally and ethically bound to deliver physical possession of suit property to the defendants---No illegality or material irregularity had been pointed out in the impugned orders passed by the courts below---Constitutional petition was dismissed in circumstances.

Zahir Shah for Petitioners.

Muhammad Haleem Khan for Respondents.

YLR 2017 PESHAWAR HIGH COURT 694 #

2017 Y L R 694

[Peshawar (Abbottabad Bench)]

Before Ikramullah Khan, J

Syed KAMAL SHAH---Petitioner

Versus

The STATE and another---Respondents

Cr. Misc. No.652-A of 2016, decided on 2nd September, 2016.

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

----S.497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing cheque---Bail, refusal of---Accused issued cheque, which was dishonored by the Bank, which prima facie had established that accused had committed offence under S. 489-F, P.P.C.---Accused had not only been nominated in the FIR for commission of offence---Bail was refused, in circumstances.

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

----S.497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing cheque---Bail, refusal of---Dishonouring cheque, prima facie had established that accused had committed offence under S.489-F, P.P.C.---Offence though did not fall in the ambit of prohibitory clause of S. 497, Cr.P.C. but the circumstances of the case showed gravity of the matter, which not only affected an individual but also spoiled his economic and social life---Bail was refused.

Abdul Sattar v. The State 2011 YLR 863 rel.

----S.497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing cheque---Bail, refusal of---Likelihood of absconsion, apprehension of tampering with the prosecution evidence by accused, danger of repetition of offence existed---Accused was previous convict and hardened criminal---Bail was refused in circumstances.

Subhan Khan v. The State 2002 SCMR 1997 rel.

Mohi-ud-Din for Petitioner.

Raja Muhammad Zubair, Assistant A.G. for the State.

YLR 2017 PESHAWAR HIGH COURT 718 #

2017 Y L R 718

[Peshawar]

Before Waqar Ahmad Seth and Syed Afsar Shah, JJ

ABDUR REHMAN and another---Appellants

Versus

JAVED MANSOOR and another---Respondents

Cr. A. No.330-P of 2016, decided on 23rd November, 2016.

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

----S. 387---Anti-Terrorism Act (XXVII of 1997), S. 7-H---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Putting person in fear of death or of grievous hurt in order to commit extortion, possessing unlicensed weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused persons, demanded Batha through phone calls from the complainant and extended threat of dire consequences in case of his failure to pay the amount of Batha---Complainant stated during the course of cross-examination that accused were innocent and he had charged the accused persons at the instance of Investigating Officer---SIMs of cell phone were not registered in the name of accused persons---Admittedly, during the course of investigation, Investigating Officer recorded statement of owners of the SIMs used in the offence but none of them had been involved in the case---Owners of the SIMs were examined in the court but their testimony was not of that caliber on the basis of which, accused could be punished--Circumstances established doubt in the prosecution case, benefit of which would resolve in favour of accused persons---Accused, in circumstances, were acquitted by setting aside conviction and sentence recorded by Trial Court.

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

----Benefit of doubt---Prosecution was bound to prove its case beyond any reasonable doubt---If any single and slightest doubt was created, benefit of which would go to the accused that would be sufficient to discredit the prosecution story.

Tariq Parvez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Arshad Hussain Yousafzai for Appellants.

Afroz Ahmad for Respondents.

Mian Arshad Jan, A.A.G. for the State.

YLR 2017 PESHAWAR HIGH COURT 733 #

2017 Y L R 733

[Peshawar]

Before Waqar Ahmed Seth, J

SAID KAMAL---Petitioner

Versus

The STATE and another---Respondents

Cr. M. B.A. No.2645-P of 2016, decided on 25th November, 2016.

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

----S. 497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(3)---Penal Code (XLV of 1860), S. 411---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S.15---Haraaba, dishonestly receiving stolen property, possessing unlicensed arms---Bail, grant of---Complainant had charged unknown accused in the FIR---Accused was charged later on by the complainant, for the commission of offence, through his statement recorded under S.164, Cr.P.C.---Complainant had stated in the FIR that he could identify the accused, if came before him---Complainant and alleged eye-witness during the identification parade, had failed to identify the accused---Pistol and alleged snatched money were though recovered but no documentary evidence was available on file to show the detail of recovered amount---Sufficient material was available, which would make the case of accused that of further inquiry---Accused was allowed bail in circumstances.

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

----S. 497---Bail---Principle---Observations made in bail matter were tentative in nature and would not prejudice the case of either side at trial.

Arshad Hussain Yousafzai for Petitioner.

Ms. Bibi Saba and Muhammad Daud Barki for Respondents.

YLR 2017 PESHAWAR HIGH COURT 744 #

2017 Y L R 744

[Peshawar]

Before Qaiser Rashid Khan, J

NOOR ULLAH and another---Petitioners

Versus

The STATE and another---Respondents

B.A. No.1693-P of 2016, decided on 20th September, 2016.

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

----S. 497---Penal Code (XLV of 1860), S. 363---Kidnapping of minor from lawful guardianship---Bail, refusal of---Accused-petitioners and their co-accused allegedly kidnapped the minor niece of the complainant aged 3/4 years---Accused-petitioners alleged that compromise had been effected between the parties through compromise deed---Complainant party had satisfied themselves about the non-involvement of accused-petitioners in the commission of offence and their innocence---Offence was non-compoundable and plea of accused-petitioners about their innocence and non-involvement in the kidnapping of minor would be considered at the time of trial---Minor girl was retrieved from the custody of the accused-petitioners and their co-accused by the timely and swift action of the police---Accused-petitioners, were prima facie linked with the commission of the offence, which was not only serious and heinous in nature but also non-compoundable---Accused were refused bail in circumstances.

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

----S. 497---Bail---Principles---Observa-tions recorded in bail granting order are tentative in nature, which would not prejudice the proceedings before the Trial Court.

Khanzada Ajmal Zeb for Petitioners.

Muhammad Sohail, Asstt: A.G. for the State.

Complainant in person.

YLR 2017 PESHAWAR HIGH COURT 810 #

2017 Y L R 810

[Peshawar]

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

NASIR KHAN---Appellant

Versus

HAMEED ULLAH JAN and 14 others---Respondents

Election Appeal No.5 of 2014, decided on 21st October, 2016.

(a) Appeal---

----Powers of appellate Court---Scope---Appellate Court while deciding appeal has power similar to Trial Court and can even reverse finding of Trial Court by meeting reason of Trial Court.

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

----Ss. 52, 55 (3), 56 & 63---Civil Procedure Code (V of 1908), O.VI, R.15---Defective pleadings---Verification---Un-attested documents---Election petitioner assailed the election of returned candidate on the plea that he made false declaration by concealing his involvement in narcotics case---Trial Court allowed election petition and directed the authorities to conduct fresh election---Plea raised by returned candidate was that Trial Court was not vested with power to rectify omission and cure illegality committed by election petitioner at the time of filing election petition---Validity---Photocopies of annexes attached to election petition neither bore signature of election petitioner nor verification in the election petition in accordance with the mandate of S. 55(3) of Representation of the People Act, 1976---Election petitioner while presenting election petition before Election Commission in terms of S. 53 of Representation of People Act, 1976, had failed to comply with the provision of S.55(3) of Representation of People Act, 1976---Such defect in verification, whether pointed out by contesting party or not, the Election Tribunal alone was bound to ensure compliance of such mandatory provision---Where permission was sought with regard to production of attested copy, during period of limitation prescribed for filing of election petition, it could be taken into consideration according to settled principles relating to amendment in pleadings otherwise such amendment was not allowed particularly in absence of any request for condonation for such delay---In view of the provisions of O. VI, R. 15, C.P.C. read with S. 55(3) of Representation of the People Act, 1976, election petitioner was to sign each and every document annexed by him with his petition on oath or solemn affirmation and was also to state date and place at which it was signed---Such mandatory compliance lacked and election petition was filed for non-compliance of mandatory provision of S. 55(3) of Representation of the People Act, 1976, therefore, it was incompetent and not maintainable---High Court, in exercise of appellate jurisdiction, set aside the judgment passed by Trial Court and restored notification of Election Commission declaring appellant as returned candidate---Appeal was allowed.

2010 CLC 1358; Lt. Colonal Ghazanfar Abbas Shah's case 2015 SCMR 1585; Sultan Mahmood Hinjra v. Ghulam Mustafa Khar 2016 SCMR 1312; Sikandar Hayat and others v. Master Fazal Karim PLD 1971 SC 730; Muhammad Din v. Raheem Bakhsh and others 1988 Law Notes SC 1273 and Firm Malik Des Raj Faqir Chand v. Firm Piara Lal Aya Ram and others AIR 1946 Lah. 65 ref.

----Setting aside of result---Involvement of returned candidate in criminal case---Proof---Success of returned candidate is mandate of people of electoral and the same should not be lightly interfered with on mere allegation of involvement in criminal case, unless proved on touchstone of standard of evidence in a criminal case.

Abdul Samad Khan for Appellant.

Ghulam Mohy Uddin Malik for Respondents.

YLR 2017 PESHAWAR HIGH COURT 835 #

2017 Y L R 835

[Peshawar]

Before Rooh-ul-Amin Khan and Muhammad Younis Thaheem, JJ

KHUSHDIL---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeals Nos.84-P and 85-P of 2012, decided on 16th December, 2016.

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

----S.17(4)---Penal Code (XLV of 1860), Ss.413 & 414---Dacoity with murder, haraaba---Charge and sentence under Offences Against Property (Enforcement of Hudood) Ordinance, 1979---Forum of appeal---Accused persons were charged under S.17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with Ss.413 & 414 Penal Code, 1860---Charge against accused having been framed under S.17(4) Offences Against Property (Enforcement of Hudood) Ordinance, 1979, forum of appeal would be Federal Shariat Court and not the High Court---Appeals were transferred from High Court to the Federal Shariat Court accordingly.

Muhammad Abbas and another v. The State 1984 SCMR 129; Atta Muhammad v. The State 1984 SCMR 1109; Muhammad Sharif v. The State PLD 1999 SC 1063; Khizar Hayat v. Noor and others 2004 SCMR 209 and Ijaz and another v. The State 2016 PCr.LJ 130 rel.

Shabbir Hussain Gigyani and Syed Bilal Jan for Appellants.

Waqar Ahmad, A.A.G. for the State.

Sana Ullah Khan for the Complainant.

YLR 2017 PESHAWAR HIGH COURT 839 #

2017 Y L R 839

[Peshawar (D.I. Khan Bench)]

Before Muhammad Ghazanfar Khan, J

Haji RAB NAWAZ---Petitioner

Versus

CHIEF EXECUTIVE (PESCO) KHYBER PAKHTUNKHWA, PESHAWAR and 7 others---Respondents

W.P. No.592-D of 2016, decided on 16th August, 2016.

Electricity Act (IX of 1910)---

----S. 54-C---Interim relief---Bar on issuance of prohibitory order---Principle---Petitioner was consumer of electricity and assailed amount of electricity bill sent by Electric Supply company---Petitioner sought prohibition to disconnect electric supply without deposit of disputed bill---Validity---Bar on issuance of prohibitory order, under S. 54-C of Electricity Act, 1910, from disconnecting supply to premises without first asking petitioner to deposit due amount within a period of thirty days, could not be read in isolation---Amount assessed against petitioner was made disputed by the supply company itself, so unless it was determined finally, the provisions of S. 54-C of Electricity Act, 1910, could not be applied---High Court directed petitioner to deposit current bills of consumed units regularly---Constitutional petition was allowed accordingly.

PLD 2001 Lah. 31 ref.

Muhammad Yousaf Khan for Petitioner.

Arif Rahm Ustrana for Respondent.

YLR 2017 PESHAWAR HIGH COURT 867 #

2017 Y L R 867

[Peshawar]

Before Lal Jan Khattak, J

Haji MIR ILYAS and others---Petitioners

Versus

Haji GUL BADSHAH and others---Respondents

C.R. No.494 of 2005, decided on 28th November, 2016.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Waqf---Contention of plaintiffs was that suit property had been reserved for graveyard---Suit was decreed concurrently---Validity---Suit property had been recorded as Shamilat deh in Misl-e-Haqiat for the year 1926-27---Defendants had failed to produce any evidence with regard to inclusion of their names in the column of cultivation in the jamabandi for the year 1935-36---Subsequent entries showing names of defendants in the column of cultivation did not confer any title upon them---Continuous use of some property as graveyard by itself was a proof that same had lost its earlier character---Existence of common graveyard in some property for long time was more than a written deed required for a Waqf---Plaintiffs had proved their case through worth reliable documentary and oral evidence---No illegality or irregularity had been committed by the Courts below---Revision was dismissed in circumstances.

2014 SCMR 914 and AIR 1940 Lah. 119 rel.

Abdul Sattar Khan for Petitioners.

Zia-ur-Rehman for Respondents.

YLR 2017 PESHAWAR HIGH COURT 898 #

2017 Y L R 898

[Peshawar]

Before Ishtiaq Ibrahim, J

LALZADA---Petitioner

Versus

The STATE and another---Respondents

Cr. M.B.A. No.1404-P of 2016, decided on 10th October, 2016.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Bail, grant of---Ground of sickness or infirmity---Standing Medical Board constituted for examination of accused opined that accused was suffering from Dysphasia and Stroke (CVA) which could not be treated in jail and no one appeared from complainant side to rebut the opinion of Standing Medical Board---Accused was using wheel-chair and was unable to talk coherently and move without support---Accused, therefore, was sick and was admitted to bail for treatment free from any pressure.

Malik Muhammad Yousafullah Khan v. The State and another PLD 1995 SC 58 and Muhammad Nawaz v. The State 1998 PCr.LJ 166 rel.

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

----S. 497---Bail, grant of---Scope---Ground of sickness or infirmity---Exercise of discretion by court---Bail under S. 497(1), Cr.P.C. was only discretionary which discretion was only exercised, when the court came to the conclusion that despite advance medical technology and availability of most modern ways and means of treatment accused still needed such an extra and constant care which was not available in jail.

Malik Muhammad Yousafullah Khan v. The State and another PLD 1995 SC 58 rel.

Javed A. Khan for Petitioner.

Waqar Ahmad, A.A.G. for the State.

Nemo for the Complainant.

YLR 2017 PESHAWAR HIGH COURT 916 #

2017 Y L R 916

[Peshawar]

Before Mohammad Ibrahim Khan, J

MUHAMMAD SHOAIB---Petitioner

Versus

ZAMIN KHAN and 4 others---Respondents

C.R. No.681-P of 2014, decided on 19th September, 2016.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, performance of---Requirements---Suit was dismissed by the Courts below on the ground that pre-emptor had failed to perform talbs in accordance with law---Validity---Pre-emptor was already in the know of sale of suit property as alleged by the informer---Plaintiff was bound to have met the jumping demand---Pre-emptor had failed to prove Talb-i-Muwathibat as required under the pre-emption law---Notice of Talb-i-Ishhad was drafted on 30-03-2010 while Talb-i-Muwathibat was required to be performed on the date when sale deed was registered i.e. 22-11-2009---Notice of Talb-i-Ishhad was required to be served by 05-01-2010---Demand of Talb-i-Ishhad was yon of time---Findings recorded by the Courts below were based on facts---Revision was dismissed in circumstances.

Subhan-ud-Din and others v. Pir Ghulam PLD 2015 SC 69; Muhammad Siddique v. Muhammad Sharif 2005 SCMR 1231; Muhammad Hussain v. Manzoor Hussain 2004 SCMR 737; Ali Muhammad v. Ghulam Muhammad 2003 CLC 282; Zafar Ali v. Zain-ul-Abideen 1992 SCMR 1886; Mian Pir Muhammad v. Faqir Muhammad PLD 2007 SC 302; Haji Muhammad Samin v. Khuda Bakhsh PLD 2003 SC 315; Mst. Balori v. Jillani 2011 MLD 974; 2002 MLD 118; Muhammad Ramzan v. Lal Khan 1995 SCMR 1510 and PLD 2010 Pesh. 65 rel.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---'Talb-i-Muwathibat'---Meaning.

This demand (Talb-i-Muwathibat) means immediate demand by a pre-emptor in the setting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of pre-emption. Any word indicative of intention to exercise the rights of pre-emption are sufficient.

----S. 115---Revisional jurisdiction of High Court---Scope---High Court could exercise revisional jurisdiction if findings recorded by the Courts below were perverse, fanciful, erroneous, based on mis-reading and non-reading of evidence.

Muhammad Idrees and others v. Muhammad Pervez and others 2010 SCMR 5 and Muhammad Zahoor through L.Rs. v. Muhammad Abid Qayyum and another 2013 MLD 1473 rel.

Amjad Ali for Petitioner.

Ahmad Ali for Respondents.

YLR 2017 PESHAWAR HIGH COURT 939 #

2017 Y L R 939

[Peshawar (Mingora Bench) Dar-ul-Qaza]

Before Muhammad Younis Thaheem, J

ZAHIR SHAH---Petitioner

Versus

ABDUL GHAFAR---Respondent

Civil Revision No.66-M of 2012, decided on 26th August, 2016.

Civil Procedure Code (V of 1908)---

----O. VII, R. 2---Suit for recovery of money---Plaintiff allegedly gave defendant money for obtaining visa---Plaintiff's witnesses contradicted on material points in respect of mode, time and place of payment of amount to the defendant---Plaintiff during his examination-in-chief and in his plaint neither narrated name of person before whom he paid the alleged amount nor gave particulars about place, date and time about payment but during cross-examination he deposed specific time and presence of particular persons---Omissions and variations in pleadings and proof were inadmissible---Alleged payment by plaintiff to defendant had not been proved through solid and convincing evidence; it transpired that prior to the suit defendant had filed a suit against the plaintiff which was dismissed---Held, it could safely be ascertained that the suit of plaintiff was counterblast to the suit instituted by defendant---Courts below had properly appreciated evidence on record in its true legal perspective and correctly non-suited the plaintiff---Plaintiff must have brought on record, such piece of evidence or point out such illegality or irregularity, which was not considered by the fora below---Revision being bereft of merits stood dismissed accordingly.

2010 SCMR 5 ref.

Murad Ali for Petitioner.

Muhammad Ali Khan for Respondent.

YLR 2017 PESHAWAR HIGH COURT 957 #

2017 Y L R 957

[Peshawar]

Before Muhammad Younis Thaheem, J

MASHOOQ ALI---Petitioner

Versus

SHAH ZAMAN and others---Respondents

C.R. No.350-P of 2012, decided on 29th February, 2016.

Gift---

---Proof---Issueless female doner---Allegation was that donor was of unsound mind at the time of making gift of land---Brother of donor did not challenge mutation in his lifetime--Donee was wife of donor's brother---Gift was made when brother of donor was alive and parties were living together---Brother of donor was alive but he did not challenge gift mutation during life time of donor by filing any suit for cancellation of mutation---Ingredients of gift were fulfilled at time of attestation of gift mutation, i.e., offer/declaration, acceptance and delivery of possession---Even if brother of donor, or plaintiff were not aware about said gift, but being present in the same village, they had knowledge of delivery of possession to defendants---Even after death of donor some of her property devolved upon plaintiff vide inheritance mutation, meaning thereby that he was fully aware of the whole proceedings---Plaintiff did not produce documentary evidence i.e., some medical record or other strong and confidence inspiring evidence in support of his stance regarding incapacitation of donor due to her mental state---Plaintiff failed to substantiate his claim by producing the medical expert who was treating the donor---Plaintiff had not expressly mentioned particulars of fraud alleged in his plaint nor in the evidence produced by him---Initial burden to prove fraud or other allegations was upon plaintiff who failed to discharge the same---Invalidity of gift under Sharia law was also misconceived and not tenable as under Islamic law there was no prohibition for a Muslim donor to gift his/her immovable property in preference to legal heirs---None of the witnesses of revenue department deposed that mutation in question was entered without consent of donor or that donor lady was of unsound mind or she was not present at the time of entering the mutation---Plaintiff had not objected to all these transactions for about 21 years therefore, suit of plaintiff was barred by time---Revision petition being bereft of merit was dismissed.

Ghulam Rasool v. Muhammad Akram 1988 SCMR 1088; Muhammad Ashfaq v. Chaudhri Muhammad Nawaz 2008 SCMR 1098; Haji Abdul Ghafoor through L.Rs. v. Ghulam Sadiq through L.Rs. PLD 2007 SC 43; Noon Muhammad v. Jamal Din and others 2000 CLC 305; Kaloo and 3 others v. Hassan Bakhsh and 3 others 2000 YLR 2473; Noor Muhammad Khan v. Habib Ullah Khan PLD 1994 SC 650 and Noor Din and others v. Additional District Judge Lahore and others 2014 SCMR 513 ref.

Yaqub Khan for Petitioner.

Ahmad Ali Khan and Nasir Ahmad for Respondents.

YLR 2017 PESHAWAR HIGH COURT 962 #

2017 Y L R 962

[Peshawar (Bannu Bench)]

Before Muhammad Ghazanfar Khan and Haider Ali Khan, JJ

Malik RIAZ KHAN---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Public Health and 14 others---Respondents

W.P. No.468-B of 2016, decided on 13th June, 2016.

(a) Constitution of Pakistan---

----Arts. 80, 81, 82, 83 & 84---Tender for construction of water supply scheme---Objection by the Member Provincial Assembly that scheme had been approved without his consultation---Validity---Government had issued construction and rehabilitation of water supply scheme in all union councils but no one from other union council had leveled the said allegation---Cost estimate for the scheme had been prepared and even approval had been taken much before but at that time petitioner had not objected with regard to its feasibility---If tender was cancelled, that would frustrate the water supply scheme of other union councils which was not the mandate of law---Tender could not be cancelled to the extent of one union council---Neither the Constitution nor the rules of procedure and conduct of business in national/provincial assembly contained any provision that could permit the use/allocation of discretionary funds through member of national/provincial assemblies---Allocation of funds for development schemes had to be made after following the procedure provided in Arts. 80 to 84 of the Constitution---Schemes passed by the provincial assemblies were in accordance with law---Petitioner was not an "aggrieved person"---Constitutional petition was dismissed in limine.

PLD 2014 SC 131 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Factual controversy could not be resolved under constitutional jurisdiction of High Court.

Syed Fakhrud Din Shah for Appellant.

Kamran Hayat Addl. A.G. for Respondents.

YLR 2017 PESHAWAR HIGH COURT 971 #

2017 Y L R 971

[Peshawar (Abbottabad Bench)]

Before Ikramullah Khan, J

IMTIAZ---Appellant

Versus

The STATE---Respondent

Cr. Appeal No.24-A of 2016, decided on 1st September, 2016.

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

----S. 514---Forfeiture of bond---Issuing of notice to sureties---Scope---Accused for whom the petitioner stood surety, had been acquitted and sureties were discharged of their liabilities---Effect---Once a person was discharged from the liability by clear and unambiguous judgment, he could not be later on held responsible for certain appearance of accused who had been acquitted in the same case---Order passed by Trial Court was set-aside accordingly.

(b) Maxim---

----'Actus curiae neminem gravabit' (an act of court shall prejudice no man)---Scope---Where any court did not comply with a mandatory provision of law or omitted to pass an order required by law in the prescribed manner, the litigant/parties could not be punished---Fault in such cases did lie with the court and not with the litigants and no litigant should suffer on such account in circumstances.

Shoaib Ali for Appellant.

Raja Muhammad Zubair, Assistant Advocate General for the State.

YLR 2017 PESHAWAR HIGH COURT 981 #

2017 Y L R 981

[Peshawar (D.I. Khan Bench)]

Before Muhammad Ghazanfar Khan, J

MUHAMMAD ABBAS---Petitioner

Versus

SAIFULLAH and others---Respondents

C.R. No.63-D of 2016, decided on 27th May, 2016.

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

----O. XXXIX, R. 4-A---Injunction to cease to be in force after certain period---Purpose---Order XXXIX, R. 4-A, C.P.C. was enacted for speedy disposal of cases.

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

----O. XXXIX Rr. 1, 2 & 4-A---Temporary injunction---Re-agitation of temporary injunction on fresh grounds---Effect---Plaintiff, in the present case, moved application for temporary injunction along with plaint which was refused by the Trial Court and lower appellate court---Plaintiff, after recording of evidence in main case moved fresh application for temporary injunction on fresh grounds with emphasis on O. XXXIX R. 4-A, C.P.C.---Held that O. XXXIX R. 4-A, C.P.C. was of no help to a person who was lingering on case on one pretext or the other---Once the relief had been refused on the same footing and same record, it could not be re-agitated before any forum---Orders of both the lower courts were in consonance with law---Revision was dismissed accordingly.

Muhammad Yousaf Khan and Nouman Akbar Khan for Petitioner.

Latifullah Khan and Sh. Inamullah Khan for Respondents.

YLR 2017 PESHAWAR HIGH COURT 1014 #

2017 Y L R 1014

[Peshawar (Mingora Bench) Dar-ul-Qaza]

Before Muhammad Daud Khan and Haider Ali Khan, JJ

SHAHAB ALI---Petitioner

Versus

The STATE through Additional Advocate Genera, Peshawar and 3 others---Respondents

Cr.M. (Q.P.) No.59-M of 2015, decided on 17th February, 2016.

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

----Ss. 145 & 561-A---Cognizance of complaint and petition for quashment---Civil suit, pendency of---Quashing of proceedings---Petitioner had alleged that respondent had occupied his property in his absence---Trial Court, on complaint filed by petitioner, sought report from Post Commander concerned and in the light of his report restored the possession of disputed property---Respondent challenged the said order through revision petition, which was allowed---Petitioner assailed the said order under S.561-A, Cr.P.C. for quashment---Another person (respondent) filed civil suit before the civil court of competent jurisdiction in respect of his ownership, wherein the petitioner was mentioned as tenant---Such fact was also mentioned in the written statement filed by respondent---Plea raised by said another person was that civil suit regarding same property was pending between the same parties before civil court---Effect---When the civil court was seized of the subject matter of dispute, Magistrate had no jurisdiction/ authority under S.145, Cr.P.C., to issue any order in respect of the said property---Revisional court had also ignored such crucial point despite the fact that a civil suit in respect of suit property was already pending in the civil court---High Court, in exercise of inherent jurisdiction under S.561-A, Cr.P.C., quashed all the proceedings against petitioner---Petition was allowed accordingly.

1971 SCMR 581 and 1997 MLD 2015 rel.

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

----S.145---Powers of Judicial Magistrate--Scope---When there was apprehension of breach of peace regarding immovable property, Judicial Magistrate was empowered to proceed in accordance with S.145, Cr.P.C.

----Ss. 145 & 561-A---Constitution of Pakistan, Art.199---Petition for quashment under S.561-A, Cr.P.C. and constitutional petition under Art. 199 of the Constitution--- Scope--- Respondent had filed declaratory suit against the petitioner and another respondent---During pendency of civil suit, another respondent filed an application before Magistrate for possession of the suit property---Said petition was accepted---Respondent/ plaintiff filed revision petition, which was dismissed---Said orders were challenged through constitutional petition---Validity---Admittedly, respondent/ plaintiff had filed civil suit along with application for temporary injunction, proper course for the parties was to seek their remedies from the civil court as civil court was competent in that regard---Orders impugned in the constitutional petition under Art. 199 of the Constitution and in the quashment petition under S.561-A, Cr.P.C. were the same, which had been set aside in the quashment petition---Constitutional petition was, therefore, dismissed accordingly having become infructuous.

Aziz Muhammad for Petitioner.

Sabir Shah A.A.G. and Mian Hussain Ali for Respondents.

YLR 2017 PESHAWAR HIGH COURT 1031 #

2017 Y L R 1031

[Peshawar (Mingora Bench) Dar-ul-Qaza]

Before Muhammad Younis Thaheem, J

JADOON KHAN---Appellant

Versus

ABDUL KARAM and 3 others---Respondents

R.F.A. No.10-M of 2014, decided on 14th April, 2016.

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

---O. IX, R. 13 & O. V, Rr. 19 & 20---Ex-parte decree, setting aside of---Limitation---Substituted service---Scope---Void order---Limitation---Applicant filed application for setting aside of ex-parte decree which was dismissed being time barred---Contention of applicant was that address given in the plaint was wrong due to which he could not be served and ex-parte decree was passed against him---Validity---No effort was made by the Trial Court to effect service of summons after obtaining correct address of defendants---Provisions of O. V, C.P.C. were bypassed before summoning the defendants through substituted service by publication---Trial Court without recording statement of process server had invoked the provisions of O. V, R. 20, C.P.C. which was an irregularity---Ex-parte proceedings and decree, in circumstances, were against law and void ab initio as no notice/summons was issued and served on correct address and through affixation---Whole edifice built on such void order was bound to crumble down---Limitation would not run against void order rather same could be ignored and might not be allowed to stand there-against---Trial Court had mis-read and non-read the record with regard to service of summons and committed an illegality while rendering the impugned order---Applicant did not appear due to wrong address given by the plaintiff---Publication in newspapers could not be termed as "valid service" when judgment debtor-applicant was rustic villager and educated only up to 8th Class and belonged to far-flung area---Plaintiff, in order to seek relief from the court must have furnished proper and correct address of the party against whom he sought such relief---Applicant could not be considered to be well conversant with regard to the newspaper in which publication was issued---Trial Court had not properly appreciated the law on the subject while dismissing the application for setting aside of an ex-parte decree---Whole proceedings with regard to service of summons, ex-parte proceedings and ex-parte decree were declared as void ab initio and were set aside---Case was remanded to the Trial Court for decision afresh with the direction to the plaintiff to file amended plaint by giving correct address of the defendant-applicant---Appeal was allowed in circumstances.

Muhammad Raz Khan v. Government of N.W.F.P. and another PLD 1997 SC 397 and State Life Insurance Corporation and 3 others v. Haji Abdul Ghani and 3 others 1986 MLD 1245 rel.

(b) Void order---

----Limitation---Limitation would not run against void order.

Muhammad Raz Khan v. Government of N.W.F.P. and another PLD 1997 SC 397 rel.

Khwaja Salah-ud-Din for Appellant.

Suliman Khan for Respondents.

YLR 2017 PESHAWAR HIGH COURT 1053 #

2017 Y L R 1053

[Peshawar]

Before Waqar Ahmad Seth, J

SAID MASHAL----Appellant

Versus

SHAN MUHAMMAD---Respondent

C.R. No.235 of 2008, decided on 22nd January, 2016.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.13---Khyber Pakhtunkhwa General Clauses Act (VI of 1956), S.26---Talbs, performance of---Procedure---Trial Court decreed the suit but Appellate Court dismissed the same on the ground that notice of Talb-i-Ishhad was a photocopy of original one and no application for secondary evidence was moved---Validity---Defendants had failed to shatter the mode and manner of Talb-i-Muwathibat as well as Talb-i-Ishhad---Nothing was on record that pre-emptor and his informer were aware of sale of suit property prior to the date mentioned in the plaint---Findings recorded by the Appellate Court were based on presumptions---Any registered document unless and until received back unserved would be presumed to have been served/delivered---Once original notice of Talb-i-Ishhad was dispatched to the addressee and it was not received unserved then exhibiting the original was beyond any question---Minor and insignificant discrepancies were to be ignored---Impugned judgment passed by the Appellate Court was set aside and that of Trial Court restored---Revision was allowed in circumstances.

Hayat Muhammad and others v. Mazhar Hussain 2006 SCMR 1410; Asif Rasheed Khan Durrani v. Haji Hazrat Gul 2010 CLC 27; Haji Amanullah and 4 others v. Abdur Rasheed PLD 2011 Pesh. 102; Azam Khan v. Shafiullah Khan 2011 MLD 1966; Haji Bhai Khan v. Saifullah Khan PLD 2012 Pesh. 51; Mst. Farzana Bibi v. Manzoor Elahi and others 2006 CLC 1669 and Yar Muhammad Khan v. Bashire Ahmad PLD 2003 Pesh. 179 rel.

Nasir Khan for Appellant.

Danial Khan and Haq Nawaz for Respondent.

YLR 2017 PESHAWAR HIGH COURT 1071 #

2017 Y L R 1071

[Peshawar (Abbottabad Bench)]

Before Ikramullah Khan, J

DAUD----Petitioner

Versus

MAROOF---Respondent

W.P. No.945-A of 2014, decided on 5th May, 2016.

Khyber Pakhtunkhwa Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)---

----S. 3---Transfer of Property Act (IV of 1882), S. 67---Limitation Act (IX of 1908), Ss. 19, 20 & 28 & Art. 148---Usufructuary mortgage---Redemption of mortgaged land--- Limitation--- Application for redemption of mortgaged land was dismissed being time barred---Validity---Mortgagee of immovable property if not succeeded to obtain a decree for foreclosure or sale in terms of S. 67 of Transfer of Property Act, 1882 or a declaratory decree in terms of S. 28 of Limitation Act, 1908 on the basis of prescription before the target date i.e. 31-08-1991 could not be awarded any decree---Mortgagees had filed suit for the purpose to be declared as owner of mortgaged property but same had been dismissed---Revenue hierarchy had reckoned the period of limitation from the creation of first mortgage of suit property---Provision of Art.148 of Limitation Act, 1908 would not apply to usufructuary mortgage---When mortgagee was in possession of mortgaged property and had received usufruct then same should be deemed to be a payment of mortgaged money as well as its acknowledgement---Fresh period of limitation should be computed from time when such payment was made---Period of limitation in such like situation should be reckoned from the last transfer of right of mortgage and not from the first creation of usufructuary mortgage---Impugned orders passed by the revenue hierarchy were set aside and suit property was restored/redeemed to the mortgagor in lieu of mortgaged money---Mortgagor should deposit the mortgage consideration in the Trial Court within a month---Constitutional petition was allowed in circumstances.

Maqbool Ahmed v. Hakoomat-e-Pakistan 1991 SCMR 2063; Muhammad Iqbal and 17 others v. Ghaunshullah Khan and 17 others 2002 CLC 1533; Baidullah Jan v. Hawas Khan PLD 2002 Pesh. 92; Abdul Haq v. Ali Akbar 1998 CLC 129; Nawaz Ali Jan v. Nawabzada and others PLD 2003 SC 425 and Abdul Haq v. Ali Akbar 1999 SCMR 2531 rel.

Sabir Hassan Tanoli for Petitioner.

A.A.G. and Mohammad Yousaf Mughal for Respondent.

YLR 2017 PESHAWAR HIGH COURT 1085 #

2017 Y L R 1085

[Peshawar (Abbottabad Bench)]

Before Ikramullah Khan and Qalandar Ali Khan, JJ

PAKHWAL CNG and others----Petitioners

Versus

GOVERNMENT and others---Respondents

W.P. No.547-A of 2009, decided on 2nd May, 2016.

Khyber Pakhtunkhwa Standard Weights and Measures Enforcement Rules, 2009--

----R. 17---Oil and Gas Regulatory Authority Ordinance (XVII of 2002), Preamble---Compressed Natural Gas stations---Levy of verification fee by the Provincial Government--- Scope---Contention of petitioners was that they were already paying fee for inspection and regulating their business to the Oil and Gas Regulatory Authority and verification fee imposed by the Provincial Government was against law---Validity---Oil and Gas Regulatory Authority was charging fee on account of third party annual safety inspection fee while verification fee had been prescribed by Khyber Pakhtunkhwa Standard Weights and Measures Enforcement Rules, 2009---Oil and Gas Regulatory Authority and Provincial Government had implemented different laws---Provincial Government was obliged to take measures for measurement of accuracy at CNG stations under its respective laws which was not being done by the Oil and Gas Regulatory Authority---Alleged verification fee was neither unreasonable nor same was in violation of Oil and Gas Regulatory Authority Ordinance, 2002---Verification fee had been levied under the law which was not open to exception in the constitutional jurisdiction of High Court---Constitutional petition was dismissed.

Sardar Muhammad Asif for Petitioner.

Muhammad Naeem Abbasi, A.A.G. for respondents Nos.1 to 4.

Khurram Ghaus for Respondent No.5.

YLR 2017 PESHAWAR HIGH COURT 1111 #

2017 Y L R 1111

[Peshawar]

Before Waqar Ahmad Seth and Rooh-ul-Amin Khan, JJ

ARSHAD KHAN---Petitioner

Versus

The CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU NAB and 2 others---Respondents

Writ Petition No.3075-P of 2015, decided on 14th December, 2016.

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

----Preamble---Object of the Ordinance---National Accountability Bureau Ordinance, 1999 was a special law, promulgated to eradicate corruption and corrupt practice and hold accountable all those persons accused of such practice---Main consideration for promulgation of the Ordinance was to recover the amount which accused persons did not pay and misappropriated such assets---Ordinance provided effective measures for detention, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practice, misuse and abuse of power or authority, misappropriation of property, taking kick backs, commission and for matters connected and ancillary incidental thereto.

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

----S. 18(b)---Cognizance of case by court--- Procedure--- Reference under National Accountability Ordinance, 1999, was to be instituted by the National Accountability Bureau, cognizance of which would be taken by the Accountability Court and not otherwise.

----S.18(b)(c)---Reference filed by National Accountability Bureau--- Procedure---Modification of reference---Scope---Reference so filed by the National Accountability Bureau neither could be modified nor altered by the Accountability Court---Accountability Court was only to frame the charge and proceed in accordance with the procedure so provided.

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

----Ss. 17(d) & 18---Criminal Procedure Code (V of 1898), S.234---Framing of one charge and trial of all references of same offences together---Petitioner had alleged that his repeated arrest, detention, investigation and the references were against the spirit of S.17(d) of National Accountability Ordinance, 1999 thus were illegal, unlawful, void and baseless---Validity---Section 17(d) of the Ordinance provided that a person accused of more than one offences of the same kind committed during the space of any number of years, from the first to the last of such offences would be charged with and tried at one trial for any number of such offences---Section 17(d) of the Ordinance excluded the applicability of S.234 of the Criminal Procedure Code, 1898---Constitutional petition was allowed accordingly.

1973 PCr.LJ 457; PLD 1965 Pesh. 65 and 2000 MLD 1504 ref.

Gen. (Retd.) Syed Pervez Muhsarraf v. The State PLD 2014 Bal. 33; Mst. Razia Pervez and another v. Senior Superintendent of Police 1992 PCr.LJ 131; Ramesh M. Udeshi v. The State 2002 PCr.LJ 1712; Badar Alam Bacjiani v. The State through Chairman NAB 2010 PCr.LJ 1988; Ch. Tanveer Khan v. Chairman NAB and others PLD 2002 SC 572 and State through Deputy Prosecutor General v. Ramesh M. Udeshi, Ex-Secretary Board of Revenue Sindh PLD 2003 SC 891 rel.

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

----Ss. 9(a)(i) to (xii) & 17(d)---Corruption and corrupt practice---Sections 9 & 17 of the Ordinance were applicable to a holder of a public office, or any other person who had committed the offence of corruption and corrupt practice---Wordings of the S.17(d) of the Ordinance "from the first to the last of such offence" denoted that all the offences of similar nature during the entire tenure of the "holders of public office" could not be bifurcated to the convenience of the prosecution and inconvenience of the accused---Constitutional petition was allowed accordingly.

PLD 1964 SC 120 rel.

(f) Criminal trial---

----Offences committed in one series---Scope---If in one series of act more offences than one were committed by the same person, so connected together as to form the same transaction, he would be charged with and tried at one trial for each such offence.

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

----Ss. 9(a)(i) to (xii) & 17(d)---Constitution of Pakistan, Art. 13---Corruption and corrupt practice---Person once tried and convicted or acquitted could not be subsequently tried not only for the same offence but also for any other offence based on the same facts---Where one reference was permitted on the one and same cause of action, second offence with mere difference of dates, amount involved and witnesses would not constitute a separate offence---No separate reference, through a subsequent investigation could be permitted in view of S. 17(d) of the Ordinance---One person would not be prosecuted or punished for the same offence more than once---Constitutional petition was allowed accordingly.

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

----Preamble---National Accountability Ordinance, 1999 provided expeditious trial of scheduled offences within the shortest possible time---Ordinance would be used in oppressive manner, which was to be tested on the touchstone of Fundamental Rights of a person as guaranteed under the Constitution.

PLD 2008 SC 645 rel.

Barrister Waqar Ali for Petitioner.

Umar Farooq ADPG for Respondents.

YLR 2017 PESHAWAR HIGH COURT 1160 #

2017 Y L R 1160

[Peshawar]

Before Rooh-ul-Amin Khan, J

Qazi SALAH UD DIN through L.Rs. and others---Petitioners

Versus

ROMAN and 4 others---Respondents

Civil Revision No.898-P of 2009, decided on 10th February, 2017.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit of declaration, permanent injunction without having physical possession--- Scope--- Both contesting parties sought separate declaratory decree on the basis of the mutations in their respective favour---Trial Court consolidated civil suits and later passed the declaratory decree in favour of one of the plaintiffs---Appellate court (almost) maintained the decree and judgment in favour of decree-holder/ plaintiff---Petitioners assailed judgment of two courts below in revisional jurisdiction of High Court on the ground that exchange mutations of subsequent transferees in favour of each other were fake, collusive and ineffective because those mutations emanated from a former mutation in which, besides concerned correct Khasra number, another Khasra number was wrongly incorporated in revenue record---Petitioners also claimed possession over land holding of the disputed Khasra number---Validity---Main controversy between the parties was over possession of land comprising in disputed Khasra number---Petitioner had claimed that he transferred a part of holding but at the time of delivery of possession, he was handed over the entire holding---Petitioners had not produced any evidence to rebut those exchange mutations and to prove the same to be the result of fraud or collusion---Though mutations were not titled deeds but they carried presumption of correctness once incorporated in the revenue record---Both the contesting parties were owners to the extent of their respective share in disputed Khasra number, however, the controversy of possession of said Khasra numbers still remained---Admittedly the suit property was undivided joint property as evident from the revenue record and both the parties were recorded as co-owners therein---Patwari Halqa produced by both the parties in their respective suit had furnished contradictory statements qua possession of disputed Khasra number---Being under litigation between the parties and in consequence of an injunction suit property was lying barren in the revenue record, however, in disputed Khasra number petitioners were not in possession--- Respondent/plaintiff also failed to establish his possession over the said area through the revenue record---Plaint of respondent/plaintiff revealed that he had only sought declaration and perpetual injunction to restrain the petitioners from interference in his share---No such declaration was to be made if a further or consequential relief was being derived from such declaration, which could have been claimed as relief before the same court and in the same suit---Plaintiff had opted for a declaratory decree, but he had failed to prove his possession, therefore, decree for perpetual injunction could not be granted to him as a consequential relief---Where plaintiff was not in possession of property, he could not seek a mere declaration of title without asking for possession as a consequential relief---Co-owner of an undivided property seeking injunctive relief could only seek the same with the formal partition of the undivided property---Granting injunctive relief to one co-owner could thereby amount to authorizing one of the co-owners to legally take possession of a valuable portion of the joint property and thus frustrated the ultimate partition of the joint property---Both the courts below fell in error while passing declaratory decree in favour of plaintiff when he had squarely failed to prove his possession---Judgments and decrees of the two courts below to the extent of decree in favour of plaintiff were set aside and his suit was dismissed---Findings of the courts below to the extent of dismissal of the suit of petitioners were maintained---Revision petition was partly allowed.

Mst. Resham Bibi and others v. Lal Din and others 1999 SCMR 2325 and Muhammad Ibrahim and others v. Muhammad Ismail and others 2005 SCMR 1335 ref.

Nasir Mehmood for Petitioners.

Kifyatullah Khan for Respondents.

YLR 2017 PESHAWAR HIGH COURT 1182 #

2017 Y L R 1182

[Peshawar]

Before Nisar Hussain Khan and Qaiser Rashid Khan, JJ

HEMAYATULLAH MAYAR DISTRICT NAZIM, MARDAN and another---Petitioners

Versus

CHIEF MINISTER KHYBER PAKHTUNKHWA through Chief Secretary and 5 others---Respondents

Writ Petition No.1802-P of 2016, decided on 24th May, 2016.

(a) Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013)---

----Ss. 55 & 54---Irregularities in the budget proceedings of District Council---Appointment of Local Government Commission---Suspending of Nazim and Naib Nazim---Requirements---Nothing was on record as to which two members of the Provincial Assembly (each one of the Treasury and opposition benches) and two eminently qualified technocrats were notified---No Local Government Commission was duly appointed by the Government---When Local Government Commission was seized with an inquiry against a Nazim then it was mandatory to co-opt a dis-interested Nazim of District Council as member---Local Government Commission had not been vested with unfettered powers for recommendation of suspension of Nazim, Naib Nazim or a member of local council---Such powers could only be exercised when suspension was necessary for the purpose of fair inquiry and for preventing Nazim and Naib Nazim or a member from continuing with any unlawful activity during the inquiry---If any one of the conditions was attracted then Nazim or Naib Nazim might be recommended for suspension---Local Government Commission was required to assign reasons before such recommendation as to how a fair inquiry could not be carried out during the holding of office by the Nazim or Naib Nazim and which unlawful activities were required to be curtailed---Proposed suspension was a penal action against the Nazim and Naib Nazim---Principle of transparency, fairness, equity and justice should be construed very strictly in circumstances---Relevant notification did not contain any reason for suspension for fair inquiry or preventing the petitioners from continuing with any unlawful activity---Such notification had not been issued in accordance with law---Local Government Commission could only recommend the suspension but it could not pass suspension order---Impugned notification had been issued by the Commission which was an illegality---Inquiry committee on whose recommendations whole exercise had been undertaken was alien to the Khyber Pakhtunkhwa Local Government Act, 2013---Local Government Commission could only recommend the suspension of Nazim or Naib Nazim---Authority of Local Government Commission had been assumed or delegated to an inquiry committee which was not recognized by law---Local Government Commission, in the present case, had assumed the power of Chief Minister which was beyond its statutory mandate---Power or authority vested by law or Constitution must be exercised justly, fairly and equitably with all reasonableness and judicious conscience---Where mandatory provision of law was not followed, it would offend all norms of justice---Impugned order did not qualify the test of equity, justice, fairness, transparency and reasonableness rather it was colourable exercise of power---Authority or tribunal was vested with power to act or decide the matter rightly not wrongly---When an act had been done wrongly then it would be an exercise without jurisdiction--- Order which had been passed by the competent authority but without jurisdiction would be susceptible to judicial review---Impugned notification had been issued contrary to the statutory command and had not been issued by a competent authority---Impugned notification was set aside by declaring same as illegal, unlawful and without jurisdiction having no legal effect---Constitutional petition was accepted in circumstances.

(b) Constitution of Pakistan---

----Art. 4---Protection of law---Scope---Every citizen had right to be treated in accordance with law.

----Art. 199---Civil Procedure Code (V of 1908), Preamble---Constitutional petition---Applicability of Civil Procedure Code, 1908---Scope---Civil Procedure Code, 1908 was applicable to all the proceedings with regard to constitutional petition filed under Art. 199 of the Constitution.

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

----O. I, R. 9---Mis-joinder or non-joinder of a party----Effect---No suit should be defeated by reason of mis-joinder or non-joinder of the parties---Court might proceed with the matter in controversy with regard to rights and interests of the parties.

(e) Administration of justice---

----When law had provided a specific procedure to do any act then it should be followed as provided.

(f) Administration of justice---

----Things should be done as required by law or not at all.

Khalid Mahmood for Petitioners.

Abdul Latif Yousafzai for Respondents.

YLR 2017 PESHAWAR HIGH COURT 1211 #

2017 Y L R 1211

[Peshawar (Bannu Bench)]

Before Muhammad Younis Thaheem, J

DILAWAR KHAN through L.Rs. and others---Petitioners

Versus

Mir QADAM JAN and others---Respondents

Civil Revision Petition No.138-B of 2011, decided on 18th January, 2016.

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

----S. 42---Suit for declaration with possession--- Mortgagee right--- Old revenue record---Presumption of truth---Scope---Plaintiffs filed suit for declaration to the effect that they were legal heirs of deceased and were entitled to legacy as per sharia law, and inheritance mutation of their predecessor-in-interest had wrongly been attested and same was ineffective upon their rights---Defendants contested the suit on the ground that suit property had been rightly devolved upon defendants---Plaintiffs produced revenue record on the basis of which, they agitated their claim---Suit was decreed but appeal against it was allowed---Validity---Old revenue record produced by plaintiffs did not support their version as the name of their predecessor in interest had not been mentioned as owner---Plaintiffs failed to produce documentary evidence in rebuttal of old entries in revenue record or through any other believable evidence in support of their stance---Plaintiff in fact claimed ownership of their predecessor on the basis of his entry as mortgagee in the revenue record which carried no weight as the mortgagee rights could only be transferred instead of ownership---Presumption of truth was attached to old entries of revenue record---Revision petition was dismissed in circumstances.

(b) Khyber Pukhtunkhwa Land Revenue Act (XVII of 1967)---

----S. 52---Old revenue record---Presumption---Presumption of truth of the highest degree was attached to the entries of the old revenue record---Old revenue record could not be set aside only on an oral assertion after a period of more than one hundred years.

Mst. Rooh Afza and others v. Ayub and others 2015 YLR 2199 and Sardar Khan v. Shah Nawaz and others 2009 YLR 1606 rel.

----S. 42---Suit for declaration with possession---Mortgagee rights---Revenue record---Plaintiffs filed suit for declaration to the effect that their predecessor was owner of the property and they were being his legal heirs and were entitled to get his property but in fact the status of their predecessor was only a mortgagee---Any person who had mortgagee rights could only transfer to others the mortgagee rights and same were only devolved upon their legal heirs.

Rashida Begum v. Sadi Begum 2003 SCMR 1456 rel.

Riaz Muhammad Khan and Bashir-ur-Rehman Burki for Petitioners.

Abdur Rasheed Khan Marwat for Respondents.

YLR 2017 PESHAWAR HIGH COURT 1296 #

2017 Y L R 1296

[Peshawar (Bannu Bench)]

Before Ishtiaq Ibrahim, J

BARKATULLAH---Petitioner

Versus

The STATE and another---Respondents

Cr. Misc. Q.P. No.28-B of 2016, decided on 23rd November, 2016.

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

----S. 173---Summoning of accused who was placed in column No. 2 of the challan---Police submitted the challan to the court after placing the name of accused in column No. 2 of the challan---Trial Court, after taking cognizance of the case, could summon the said accused and proceed with the case in the same manner as to those of the accused who had been sent for trial---Accused of column No. 2 of the challan, before formal indictment was to be directed to execute bond with or without sureties under S.91, Cr.P.C.---Accused could be taken into custody to face the trial upon his failure to execute sureties.

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

----Ss. 561-A & 91---Penal Code (XLV of 1860), Ss. 302, 324, 427, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mischief, rioting armed with deadly weapon, common intention---Quashing of order, petition for---Inherent powers of High Court---Scope---Petitioner along with co-accused was implicated in a case under Ss. 302, 324, 427, 148 & 149, P.P.C.---Petitioner was placed in column No. 2 of challan by the local police---Complainant assailed the said order of police through constitutional petition---During the pendency of said constitutional petition, trial of the case commenced---Trial Court summoned the petitioner and directed to execute bond, which he did accordingly---Charge was framed---Due to the changed scenario, constitutional petition was disposed of---Complainant moved application for cancellation of bail of the accused petitioner, which was allowed and accused petitioner was taken into custody and his post arrest bail application was turned down--- Validity--- Accused petitioner was summoned by the Trial Court and was directed to execute bond, which was done by him---Complainant thereafter filed application for cancellation of bail of accused petitioner under S.497(5) Cr.P.C., which was allowed---Earlier, bail bond was sought from the accused petitioner not under S.497 Cr.P.C. rather it was under S. 91 Cr.P.C., therefore, Trial Court had erred while ordering the cancellation of bail under S.497(5) Cr.P.C.---Once the accused had executed bail bond with Trial Court, his subsequent arrest while cancelling his previous order under S. 497(5), Cr.P.C. was not permissible, until and unless order of his placement in column No. 2 of the challan was not set at naught by a competent forum---Petition for quashing the order for cancellation of bail was allowed accordingly.

Muhammad Ilyas v. Ijaz Ahmad Butt and another 1992 SCMR 1857 rel.

Muhammad Ashraf Marwat for Appellant.

Shahid Hameed Qureshi Addl. A.G. for the State.

Anwarul Haq for the Respondent No.2.

YLR 2017 PESHAWAR HIGH COURT 1312 #

2017 Y L R 1312

[Peshawar]

Before Muhammad Younis Thaheem, J

Mirza FAZAL GHANI---Petitioner

Versus

BAHADAR KHAN and 2 others---Respondents

Writ Petition No.902-P of 2016, decided on 27th May, 2016.

Khyber Pakhtunkhwa Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Ejectment of tenant---Rent deed---Payment of advance rent---Condition that amount of rent should be adjusted from the advance amount---Effect---Rent agreement was executed with the condition that monthly rent would be deducted from the advance paid rent---Landlord filed eviction petition which was accepted concurrently---Validity---Rent of demised premises was paid in advance and monthly rent was to be deducted from the same---No specific condition existed in the rent deed that prior to the adjustment of entire paid rent amount the landlord would be entitled to evict the tenant---Paid rent amount would commensurate the period of rent till last deduction from the advance paid rent---No clause in the rent deed with regard to its termination and payment of unadjusted advance paid rent amount existed---Tenant should keep the demised premises in his possession till final deduction of monthly rent from the advance paid rent---Serving of notice prior to entire adjustment of advance paid rent was pre-mature and based on mala fide---Landlord could not evacuate the demised premises from the tenant prior to adjustment of entire advance rent amount---Impugned order/judgments of fora below were wrong and result of mis-reading and wrong interpretation of rent deed which were set aside---Eviction petition filed by the landlord was dismissed---Constitutional petition was allowed in circumstances.

Mrs. Zehra Begum's case 1992 SCMR 943 and Haji Abdul Qair's case 2001 YLR 1979 rel.

Javed Iqbal Gulbela for Petitioner.

Ijaz Ali for Respondents.

YLR 2017 PESHAWAR HIGH COURT 1323 #

2017 Y L R 1323

[Peshawar (Abbottabad Bench)]

Before Qalandar Ali Khan, J

ABDUL QAYYUM and another---Petitioners

Versus

ABDUL SALAM and 2 others---Respondents

C.R. No.20-A of 2010, decided on 4th May, 2016.

(a) Registration Act (XVI of 1908)--

----Ss. 17 & 49---Registered document---Scope---Registered deed would have precedence over a prior unregistered deed.

1995 SCMR 1407 rel.

(b) Pleadings---

----Pleadings of the parties could not be taken as evidence.

PLD 1972 SC 25; 2007 SCMR 870; 2008 SCMR 236 and PLD 2004 SC 465 rel.

----Written statement filed by a deceased could not be treated as evidence when its maker was not even examined in its support and cross-examined by his opponent.

PLD 2014 SC 331 rel.

Muhammad Ilyas Khan for Petitioners.

Syed Mehboob Shah for Respondents.

YLR 2017 PESHAWAR HIGH COURT 1376 #

2017 Y L R 1376

[Peshawar]

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

ZUHRAB GUL---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.263-P of 2015, decided on 9th March, 2017.

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

----Ss.302(b), 324, 337-F(iii), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mutalahimah, rioting armed with deadly weapon, common intention---Appreciation of evidence---Allegation against the accused was that the accused along with absconding co-accused armed with firearms entered the house of complainant and opened fire at complainant party, as a result of which five persons died at the spot and two were injured---One injured, later on, succumbed to the injuries---Prosecution case besides the ocular account of injured witnesses, rested on the dying declaration of deceased then injured, in the shape of marasila, which was not only endorsed by Medical Officer/ prosecution witness but had also furnished a certificate on its margin about the consciousness and capability of the deceased then injured to make a statement---Medical officer had furnished statement only to the extent of conducting autopsy on the dead bodies of the two deceased but he was not examined to the extent of deceased then injured and injured witness---Medico legal reports of deceased then injured, injured witness and endorsement and certificate over the dying declaration, borne the signature of Medical Officer/witness---Said witness (Medical Officer) could not be examined due to some misunderstanding---On the one hand, six persons were done to death and one person had sustained injuries, on the other hand, five persons had been directly charged for the commission of offence---In case of non-examination of the Medical Officer/witness to the extent of initial examination of the deceased (then injured) and verifying the factum of his report in his presence would not only amount to deprive the prosecution from important evidence but necessary for the administration of justice---High Court remanded the case to the Trial Court, after setting aside conviction and sentences of the accused, for re-examining of Medical Officer/witness with regard to Medico Legal Reports of injured and deceased then injured.

Ali and another v. Crown PLD 1952 FC 71; Fazal Elahi and others v. Crown PLD 1952 Lah. 388; Dildar v. The State through Pakistan Narcotics Control Board Quetta PLD 2001 SC 384; Nasir Khan and others v. The State 2005 PCr.LJ 01 and Taqi v. The State PLD 1991 Quetta 39 rel.

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

----S. 428---Additional evidence---Appellate Stage---Object of S. 428, Cr.P.C. relating to production of additional evidence was that a guilty person would not escape through carelessness or ignorant proceedings of the Trial Court and innocent person would not be wrongly convicted through same carelessness or ignorant proceedings.

----Ss. 428 & 540--Additional evidence at appellate stage---Scope---Court had ample power to examine or recall and re-examine any person if his evidence appeared to be essential to the just decision of the case.

Noman ul Haq Kakakhel for Petitioner.

Syed Sikandar Hayat Shah, A.A.G. and Barrister Amirullah Chamkani for Respondent No.2.

YLR 2017 PESHAWAR HIGH COURT 1437 #

2017 Y L R 1437

[Peshawar (Bannu Bench)]

Before Muhammad Younis Thaheem, J

NAJIB-UR-REHMAN---Petitioner

Versus

Qazi LAIQ---Respondent

Civil Revision Petition No.292-B of 2013 and C.M. No.20-B of 2014, decided on 18th September, 2015.

Civil Procedure Code (V of 1908)---

----O. IX, R. 13---Ex parte decree, setting aside of---Trial Court dismissed the application for setting aside of ex parte decree but Appellate Court allowed the same---Validity---Conduct of applicant remained contumacious and negligent in the proceedings before the Trial Court---Appellate Court had not adverted to the real position with regard to negligent and contumacious conduct of applicant and had fallen into illegality by accepting the appeal---Applicant was in knowledge of the proceedings---Impugned judgment passed by the Appellate Court was set aside while ex parte decree passed by the Trial Court was restored---Revision was allowed in circumstances.

2003 MLD 1836 and 2004 MLD 1346 rel.

Irfan Pirzada for Appellant.

Shahid Qayoum Khattak for Respondent.

Saif-ur-Rehman for KPK Government.

YLR 2017 PESHAWAR HIGH COURT 1448 #

2017 Y L R 1448

[Peshawar]

Before Qaisar Rashid Khan and Muhammad Younis Thaheem, JJ

MUHAMMAD ILYAS---Appellant

Versus

MUHAMMAD WASEEM and 3 others---Respondents

F.A.O. No.26-P and C.M. Nos.463-P of 2014 and 194-P of 2016, decided on 1st March, 2017.

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

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S. 12---Limitation Act (IX of 1908), Art. 113---Contract Act (IX of 1872), S. 55---Suit for specific performance of agreement to sell---Temporary injunction, grant of---Requirements---Party seeking temporary injunction was required to establish prima facie case, balance of convenience in his favour and irreparable loss if injunction was not granted---Plaintiff remained negligent to perform his part of obligation before the stipulated date---Time was essence of the contract in the present case---Agreement had come to an end after stipulated date---When agreed time expired, contract would become voidable upon the option of the parties---Where time was specifically stipulated then the prescribed period of limitation for filing suit would be such which was given in the contract---When time limit was stipulated in the agreement, in that case the provision of S.55 of Contract Act, 1872 would attract---Plaintiff did not make any effort to comply with the conditions of agreement in question well before or on the stipulated date---Plaintiff did not remain vigilant for getting equitable relief---Plaintiff had failed to establish his prima facie case in circumstances---No illegality or irregularity had been pointed out in the impugned order passed by the Trial Court---Appeal was dismissed in circumstances.

1981 CLC 276; 2010 CLC 81; PLD 1990 Lah. 82; 1986 MLD 95; 2004 SCMR 436; 2005 YLR 1916; PLD 1987 SC 93 and 1985 MLD 1563 ref.

2010 SCMR 334; PLD 2016 SC 199 and 2008 CLC 930 rel.

(b) Administration of justice---

----Law aids the vigilant and not the indolent.

Asad Jan for Appellant.

Abdul Sattar Khan for Respondents.

YLR 2017 PESHAWAR HIGH COURT 1461 #

2017 Y L R 1461

[Peshawar (Mingora Bench)]

Before Ikramullah Khan, J

RAHMAT BAR KHAN---Petitioner

Versus

DAULAT KHAN and 4 others---Respondents

Cr. MQP No.61-M of 2016, decided on 10th February, 2017.

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

----S. 561-A---Penal Code (XLV of 1860), Ss. 337-A(ii), 337-F(iv) & 34---Khyber Pakhtunkhwa Prosecution Service (Constitution, Functions and Powers) Act (I of 2005), S. 4-C(i)---Shajjah-i-mudihah, ghayr-jaifah, common intention---Quashing of order---Power of Public Prosecutor to withhold prosecution---Quashing of order for discharging the accused persons---Accused were charged by complainant for causing injuries to him and his son---Complainant filed compromise deed during pendency of application for pre-arrest bail of accused persons, with the assertion that parties had compromised---Complainant and the injured had no objection on confirmation of ad-interim pre-arrest bail of the accused persons as well as their acquittal---Ad-interim bail was confirmed by the Trial Court in view of the compromise---Public Prosecutor submitted application for discharging the accused, which was allowed---Validity---Admittedly, parties had compromised---Complainant and the injured had expressed their no objection on the confirmation of bail before arrest as well as their acquittal during trial---If the complainant was aggrieved of the compromise having not been effected with his consent, he could file application for cancellation of bail---No such application having been moved by the complainant nor he had pointed out any illegality or irregularity in the order for discharging the accused persons by allowing the application filed under S. 4-C(i) of the Khyber Pakhtunkhwa Prosecution Service (Constitution, Functions and Powers) Act, 2005---Said provision of law described that District Public Prosecutor was empowered to withhold the prosecution and to move application for discharge of such accused persons if the offence was compoundable, carrying punishment up to seven years---When complainant party had expressed their no objection on the acquittal of accused persons on the basis of compromise effected between the parties, they could not resile from their such deposition unless proved that accused compelled them to compromise through coercion, influence or force---Petition for quashing the order for discharging the accused person was dismissed accordingly.

(b) Criminal trial---

----Compoundable offence---Compromise---Principle---Once a compromise always a compromise, unless it was brought on record that the same was effected through any influence, coercion or force.

Aziz Ahmad for Petitioners.

Asghar Ali and Sabir Shah, A.A.G. for Respondents.

YLR 2017 PESHAWAR HIGH COURT 1514 #

2017 Y L R 1514

[Peshawar (Mingora Bench)]

Before Muhammad Younis Thaheem, J

Mst. NOSHEEN BIBI---Petitioner

Versus

ZIAULLAH and 2 others---Respondents

W.P. No.219 of 2015, decided on 15th April, 2016.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Suit for dissolution of marriage and recovery of dower---Wife filed suit for dissolution of marriage on the basis of oral Talaq and recovery of dower---Family Court dissolved marriage on the basis of khula with the direction to the wife to return already received five tola gold as dower to the husband---Contention of wife was that husband had snatched gold ornaments from her---Validity---Wife had failed to prove that husband had already divorced her---Entire statement and cross-examination should be read together and not in isolation---Husband could not be absolved from his duty to prove the fact which he had alleged in his written statement as well as in his statement on oath---Gold ornaments to be returned by the wife was already with the husband and no other benefits were proved to have been received by the wife---Wife could not be directed to return the said gold in lieu of dissolution of marriage on the basis of khula---Wife was not liable to return back which she had not in her possession---Findings with regard to return of five tolas gold by the wife were set aside---Constitutional petition was partly allowed in circumstances.

Sher Zaman v. Nawab Khatoon 1998 SCMR 133 rel.

Fazli Ghafoor for Petitioner.

Aziz-ur-Rahman for Respondents.

YLR 2017 PESHAWAR HIGH COURT 1528 #

2017 Y L R 1528

[Peshawar]

Before Rooh-ul-Amin Khan and Lal Jan Khattak, JJ

MUHAMMAD WASEEM and 4 others---Petitioners

Versus

CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU and 2 others---Respondents

Writ Petition No.211-P of 2017, decided on 9th February, 2017.

National Accountability Ordinance (XVIII of 1999)---

----9(a) & (b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Conclusion of investigation---Case of further inquiry---Mala fide, absence of---Petitioners were arrested by National Accountability Bureau on the allegation of corruption and corrupt practices in allotment of plots of housing scheme in question---Validity---Nothing solid was collected by National Accountability Bureau during investigation to show that allotments were done on the basis of favoritism, nepotism or against any monetary gain---Allotment was not done by petitioners, rather they were Members of Committee having only made recommendations---Nothing was on the record to show such recommendations to be based on any mala fide---Lease money was deposited by allottees directly in the account of housing society---Damage allegedly caused by petitioners to government exchequer was not determined till date---Case of petitioners was arguable for the purposes of bail---Investigation regarding petitioners was complete and they were no more required for further interrogation---Bail was granted in circumstances.

Mian Asghar Ali v. Government of Punjab through Secretary (Colonies) BOR, Lahore and others 2017 SCMR 118 ref.

Muhammad Ilyas Khan for Petitioners.

Zair Nawaz Khattak, ADPG for Respondents.

YLR 2017 PESHAWAR HIGH COURT 1567 #

2017 Y L R 1567

[Peshawar]

Before Assadullah Khan Chamkani, J

ZEESHAN---Appellant

Versus

JEHANGIR and another---Respondents

Cr.A. No.338-P of 2015, decided on 18th January, 2016.

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

----S. 232---Penal Code (XLV of 1860), Ss. 324 & 337-D----Attempt to commit qatl-i-amd; jaifah---Material error in framing of charge---Effect---Section 232, Cr.P.C. empowered the appellate court that in case where, on account of omissions of particulars in framing charge, the accused had been prejudiced and had not been provided an opportunity of clear understanding of the charge to defend himself, the court might either direct fresh trial or even quash the conviction---Accused, in the present case, had been prejudiced in his defence by not having been confronted with the proper charge against him-High Court, setting aside the conviction and sentence, directed the Trial Court to conclude de novo trial within three months' period after framing proper charge against the accused---Appeal against conviction was allowed accordingly.

S.A.K. Rehmani's case 2005 SCMR 364 rel.

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

----Chapt. XIX [Ss. 221 to 240]----Framing of charge---Requirements---Charge against accused has to be specific, fair and clear in all respects to provide an opportunity to the accused to defend himself in due course of trial---Charge is not to be confusing so as to prejudice the accused---Charge must convey to the accused, in sufficient transparency and in clear terms, what the prosecution intends to prove against him---Charge is to contain all essential details as to time, place and specific manner as to commission of alleged offence with full description of the accusation to afford an opportunity to the accused to explain the same.

S.A.K. Rehmani's case 2005 SCMR 364 rel.

----Chapt. XIX [Ss. 221 to 240] & 265----Framing of charge---Duty of Trial Court---Formulation of (proper) charge against accused is the duty of Trial Court---Trial Court is under the responsibility to keep the relevant law on the subject in mind coupled with S. 265,Cr.P.C at the time of formulating charge, so as to avoid future agonies and injustice to the parties.

(d) Criminal trial---

----Legal errors/flaws in trial---Duty of Trial Court---High Court observed that due to legal errors and flaws in trial of cases, accused persons were languishing in jail for no fault on their part---Trial Court was under duty to keep vigilant eyes on each and every proceeding during conduct of trial.

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

----S. 497----Penal Code (XLV of 1860), Ss. 324 & 337-D---Attempt to commit qatl-i-amd; Jaifah---Bail, refusal of---Appellate court set aside conviction and sentence on ground of absence of charge against the accused and remanded the case for de novo trial---Accused requested for his release on bail during de novo trial for having been behind bars for four years---High Court, declining bail, directed the Trial Court to conclude trial within two months.

Naveed Alam for Appellant.

Waqar Ahmad, A.A.G. for the State.

Respondent in person.

YLR 2017 PESHAWAR HIGH COURT 1622 #

2017 Y L R 1622

[Peshawar]

Before Ikramullah Khan, J

LUTFULLAH and another---Appellants

Versus

SHAHID INAYAT---Respondent

F.A.O. No.03-P with C.M. No.06 of 2016, decided on 23rd January, 2017.

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

----Ss. 17 & 27---Civil Procedure Code (V of 1908), O. XVII, R. 3---Eviction of tenant---Wilful default---Non-issuance of show-cause notice to tenant---Non-holding of inquiry--- Scope--- Tenant/petitioner contended that eviction order was illegally passed against him in the wake of his failure to submit written reply---Landlord contended that right of defence of tenant was correctly struck off by Rent Controller---Validity---Record revealed that on account of default in submission of written reply on behalf of tenant, Rent Controller had not only struck off defence of tenant but also ordered eviction of the tenant---Section 17 of Cantonments Rent Restriction Act, 1963 prescribed a special procedure to be adopted by the Rent Controller before passing any final order in regard to eviction of a tenant or otherwise---In the present case, no show-cause notice either after filing the application of eviction or thereafter, when the defence was struck off was served upon the tenant---Ordinary summons could not be a substitute for show-cause notice---Whole proceedings would be void ab initio without show-cause notice--Under S. 27 of Cantonments Rent Restriction Act 1963, power of the Rent Controller was curtailed to pass order of eviction under S. 17 of the Act, except after holding an inquiry and the inquiry did not mean to consider the allegation put forth by a party in his pleadings but the court would give an opportunity to both the parties to substantiate the facts alleged in their respective pleadings through proper evidence---No doubt, Rent Controller had been conferred with powers, in term of subsection 2(b) of S.27 to compel the discovery and production of any document and other material evidence , while subsection (2) of S.27 provided that for the purposes of holding an inquiry under the Act, Rent Controller and appellate court would have same powers as were vested in a court under Code of Civil Procedure, 1908 for summoning and forcing of any person and examining him on oath; compelling the discovery and production of any document and other material evidence; and issuing a commission for the examination of witnesses---Rent Controller, in case of violation of direction for non-submission of written reply, could adopt punitive procedure provided under O.XVII, R.3, C.P.C. while exercising its power conferred upon it in terms of S. 27(2) of the Act, but while exercising such powers, Rent Controller would adopt the whole procedure and would give prior notice to the delinquent party under O.XVII, R.3, C.P.C.---In the present case, Rent Controller had not issued required notice to defendants prior to striking off his defence, which itself was gross illegality---Power to pass eviction order could not be exercised without conducting proper inquiry as the provisions of subsection (1) of S. 27 had placed specific embargo on exercise of simultaneous order of eviction after striking off the defence---Case was remanded.

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

----S. 24---Limitation Act (IX of 1908), S.14---Eviction of tenant---Appeal---Time taken in proceedings at wrong forum---Condonation---Scope---Thirty days were required for filing an appeal in terms of S.24 of Cantonments Rent Restriction Act, 1963---Where Writ Petition had been filed by the appellant, which was withdrawn with permission to file an appeal, time spent in wrong forum might be condoned in view of S. 14 of the Limitation Act, 1908 for the purpose.

Syed Muhammad Ilyas for Appellants.

Muhammad Sami-ur-Rehman for Respondent.

YLR 2017 PESHAWAR HIGH COURT 1641 #

2017 Y L R 1641

[Peshawar]

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

SAID UMAR---Appellant

Versus

ABDUL GHAFFAR and another---Respondents

Criminal Appeal No.12-P with Murder Reference No.2 of 2016, decided on 16th March, 2017.

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

----S. 302(b)---Appreciation of evidence---Substitution---Principle---Substitution of innocent person when a single accused was named in a murder case was a rare phenomenon, but at the same time, to convict an accused charged singularly, there must be ocular account of unimpeachable character, trustworthy and confidence inspiring, corroborated by circumstantial evidence.

Dr. Israr ul Haq v. Muhammad Fayyaz and another 2007 SCMR 1427 and Mst. Sughara Begum and another v. Qaisar Pervez and others 2015 SCMR 1142 rel.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Related witness---Testimony of closely related witness---Reliance---Scope---Conviction could be recorded on the testimony of witnesses having close relationship with the deceased provided the same rang true and was corroborated by independent strong circumstances of the occurrence.

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Benefit of doubt---Prosecution case was that accused fired on brother of complainant, resultantly, he sustained injury---Injured was shifted to the hospital but he succumbed to the injuries---Ocular account was furnished by eye-witnesses, while complainant had furnished hearsay evidence---Witness of ocular account stated that he noticed a brawl between deceased and accused---Said witness informed complainant in that regard, who arrived at the spot and noticed that accused along with 30-bore pistol coming down stairs---Complainant asked the accused as to what happened but he did not answer and fled down stairs---Complainant went up the roof and saw his brother in injured condition---Witnesses removed and shifted the injured to the hospital---People had caught hold the accused along with his pistol---Complainant remained at the spot till the arrival of police and arrest of accused---Complainant had not disclosed the name of the person or the source through which he was informed about the incident---Complainant during his statement before the court, innovated a different story to bring his version in conformity with the prosecution case, which amounted to dishonest improvements---Stay of complainant at the spot of occurrence, not accompanying his injured brother to the hospital was an act beyond the human imagination and comprehension, as in such a crucial eventuality the first priority for nears and dears would always be to accompany the injured to save his precious life---Complainant did not try to nab the accused---Witness of ocular account did not state anything about arrival of his father at the spot when deceased, then injured, was being shifted to the hospital---Conduct of said witness as silent spectator at the time of brawl was also against the natural human conduct---Said witness had not explained as to why he did not make a report about the incident when he shifted his injured uncle to the hospital and waited the arrival of his father/ complainant---Admittedly, said witness had neither reported the matter to casualty police nor had signed/verified the report as a rider, which created a serious dent in the prosecution case and made the version of complainant and alleged eye-witness doubtful regarding the mode and manner of the occurrence---Name of said witness was not cited in the inquest report of the deceased as identifier---Complainant was cited in the inquest report as identifier---Circumstances and facts showed that alleged eye-witness was not present at the place of occurrence---Version of complainant and prosecution witness about the arrest of accused along with pistol by the public at large was negated by Investigating Officer, who had tendered a divergent statement regarding arrest of accused and recovery of crime pistol from the accused---Said circumstances created doubt about the arrest of accused and recovery of crime pistol---Name of other alleged eye-witness was not mentioned in the report as an eye-witness but was introduced as eye-witness later on, after a delay of eight days of the occurrence---Statement of said witness under S. 164, Cr.P.C. was recorded, wherein accused was charged for the commission of the offence but had not furnished any explanation about his long silence---Circumstances established that prosecution failed to prove the ocular account beyond any shadow of doubt, accused was acquitted by setting aside conviction and sentence recorded by Trial Court.

(d) Criminal trial---

----Witness---Witness claimed his presence at the spot---Scope---Witness who claimed his presence at the spot must satisfy mind of the court through some physical circumstances or through some corroborative evidence in support of his presence at the spot.

(e) Criminal trial---

----Witness---Statement of witness recorded at belated stage---Effect---Statement of witness recorded at belated stage would not be fatal if a plausible and convincing explanation was furnished about the delay---If the delay was not explained and witness had been introduced at a later stage purposely maneuvered to implicate the accused, such delay would adversely affect the prosecution case and no implicit reliance could be placed on the evidence of such witness.

Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Ismail and others v. The State 1983 PCr.LJ 823; Sirajuddin v. Kala and another PLD 1964 SC 26; Muhammad Khan v. Maula Bakhsh and another 1998 SCMR 570 and Ghulam Qadir and 2 others v. The State 2008 SCMR 1221 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of crime empties and weapon---Record showed that three crime empties were recovered from the place of occurrence---Pistol 30-bore was recovered from the possession of the accused---Crime empties and pistol were sent to the Forensic Science Laboratory for expert opinion---Said recovery become dubious in the light of statement of purported eye-witnesses and Seizing Officer---Statement of eye-witnesses and Police/Seizing Officer would not advance the prosecution case---Besides, when the ocular account of the prosecution case had been disbelieved, mere recovery of pistol and crime empty, would not be sufficient for recording conviction---Accused was acquitted in circumstances by setting aside conviction and sentences recorded by Trial Court.

Mst. Sughra Begum and another v. Qaisar Pervez and others 2015 SCMR 1142 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of blood from the spot, last worn blood-stained garments of the deceased---Unnatural death of deceased with firearm as per postmortem report proved the factum of murder of the deceased---Such piece of evidence was considered as corroborative piece of evidence and was taken along with direct evidence and not in isolation.

Riaz Ahmed's case 2010 SCMR 846; Ijaz Ahmed's case 1997 SCMR 1279; Asadullah's case PLD 1971 SC 541 and Saifullah v. The State 1985 SCMR 410 rel.

(h) Criminal trial---

----Benefit of doubt--- Principles---Prosecution was duty bound to prove the case beyond any reasonable doubt---If any single and slightest doubt was created, benefit of the same would go to the accused and entitled the accused for acquittal as the accused was always considered the most favorable child of law.

Tariq Pervaz v. The State 1995 SCMR 1345; Muhammad Akram v. The State 2009 SCMR 230 and Faryad Ali's case 2008 SCMR 1086 rel.

Taimur Haider Khan for Petitioner.

Sana Ullah for the Complainant.

Mian Arshad Jan, A.A.G. for the State.

YLR 2017 PESHAWAR HIGH COURT 1687 #

2017 Y L R 1687

[Peshawar]

Before Ikramullah Khan, J

RAID ULLAH KHAN---Appellant

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 4 others---Respondents

R.F.A. No.285-P of 2015, decided on 16th January, 2017.

(a) Khyber Pakhtunkhwa Waqf Properties Ordinance (I of 1979)---

----S. 11---Khyber Pakhtunkhwa Tenancy Act (XXV of 1950), Ss. 3 & 4---Specific Relief Act (I of 1877), S. 42---Limitation Act (IX of 1908), Art. 120---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for declaration---Limitation---Waqf property---Occupancy tenant---Plaint, rejection of---Scope---Plaintiff had not challenged the notification declaring suit property as waqf property within the prescribed period of thirty days---Occupancy tenants who had acquired their occupancy rights in terms of S. 5 of Khyber Pakhtunkwa Tenancy Act, 1950 were declared to be owner to the extent of land for which they either were not paying any rent or to the extent of proportionate share in produce retained by such tenant---Plaintiff could not take benefit of provision of S.4 of Khyber Pakhtunkhwa Tenancy Act, 1950 as government were excluded from the operation of the provisions of Ss. 3 & 4 of said Act---Concession and rights conferred upon any occupancy tenant in terms of S. 4 of Khyber Pakhtunkhwa Tenancy Act, 1950 could not be extended to the plaintiff in circumstances---Plaintiff had not been declared as owner by any competent authority or Court before the target date i.e. 23-03-1990 as fixed by the Supreme Court---Plaintiff instituted another suit with regard to same cause of action under same title prior to present suit which was withdrawn with permission to file a fresh suit---Every wrong entry in fresh periodical record gave fresh cause of action if a person was in possession of land but once limitation started it could not be condoned on mere having possession over the land---Plaintiff had no cause of action and present suit was time barred---Where suit was barred by law then Court should invoke O. VII, R. 11, C.P.C.---Appeal was dismissed in circumstances.

Qazalbash Waqf v. Chief Land Commissioner 1989 SCMR 2012; Noor Maidar v. Altaf Ahmad Khan 2014 YLR 468; Muhammad Yousaf v. Hukomat Pakistan PLD 1990 SC 760 and S.M. Sham Ahmad Zaidi through Legal Heirs's case 2002 SCMR 338 rel.

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

----O. VII, R. 11---Purpose of O.VII, R.11, C.P.C.---Scope---Purpose of O. VII, R. 11, C.P.C. was to save not only the time of court but also the other party from agonies of prolong litigation.

Khan Ghawas Khan for Appellant.

Syed Sikandar Hayat Shah, A.A.G. for Respondents.

Nasir Mahmood for Respondents Nos. 2 and 3.

YLR 2017 PESHAWAR HIGH COURT 1742 #

2017 Y L R 1742

[Peshawar (Abbottabad Bench)]

Before Ishtiaq Ibrahim and Syed Afsar Shah, JJ

RAFAQAT HUSSAIN---Appellant

Versus

The STATE---Respondent

Cr. Appeal No.07-A of 2013 with M.R. No.01-A of 2013, decided on 29th March, 2017.

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

----S. 302---Criminal Procedure Code (V of 1898), S. 164--- Qatl-i-amd---Appreciation of evidence---Sentence, reduction of---Mitigating circumstances---Judicial confession---Value---Prosecution case was that accused committed murder of the son of complainant by firearm---Complainant did not nominate any person in FIR for commission of offence and requested for investigation---Complainant implicated the accused and his father later on through supplementary statement---Record showed that accused made voluntary confession about the commission of offence---Only substantive piece of evidence with the prosecution was confessional statement of the accused, which showed that same was voluntary and according to the narration of the occurrence---Accused had disclosed such facts which otherwise were neither known to the complainant nor to the Investigating Officer that the deceased was keeping evil eyes on the sister of accused---Confessional statement in view of the disclosures of accused regarding family honour was to be believed being corroborated by recovery of pistol at his pointation and positive report of forensic expert---Record showed that confessional statement was recorded not only in accordance with Ss. 164/364, Cr.P.C. but also in accordance with the provisions of High Court (Lahore) Rules and Orders---Circumstances and facts had indicated that deceased first pulled out his pistol upon the accused and during scuffle, accused snatched it from him and whereafter the incident took place---Case for self defence in circumstances, was made out---Accused had exceeded the right of self-defence by firing two shots upon the deceased---Appeal was partly allowed, conviction of the accused was altered from S. 302(b) to S. 302(c) Penal Code, 1860 and as such his sentence was modified from death to fourteen years.

(b) Confession---

----Retracted confession--- Effect---Conviction could be based on retracted judicial confession provided same was true and voluntary and corroborated by some strong piece of independent evidence.

----Evidentiary value---If no other evidence was available except confession of accused, such statement of accused was to be taken in totality---If other convincing evidence was available with the prosecution then exculpatory part of the confessional statement could be discarded---If other evidence was not available with the prosecution then entire confessional statement could be considered inclusive of both exculpatory and inculpatory.

Najib Raza Rehmani v. The State PLD 1978 SC 200; Faiz and another v. The State 1983 SCMR 76 and Sultan Khan v. Sher Khan and others PLD 1991 SC 520 rel.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Quantum of punishment---Trial Court was justified by awarding death sentence to the accused on the strength of the evidence led by the prosecution in the present case but had erred in law while awarding death sentence to the accused because he was empty handed and deceased was having pistol---Deceased took out the pistol and aimed at the accused, accused snatched the pistol and fired at the deceased with his (own) pistol---Circumstances established that it was lack of pre-meditation on the part of the accused and it was a case of self defence, hence appeal was partly allowed---Conviction of the accused was altered from S. 302(b) to S. 302(c) Penal Code, 1860 and as such his sentence was modified from death to imprisonment for fourteen years.

The State v. Muhammad Hanif and 5 others 1992 SCMR 2047 and Ali Muhammad v. Ali Muhammad and others PLD 1996 SC 274 rel.

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

----S.302---Murder---Self defence, plea of---Such plea not taken by accused---Even if the accused did not take the plea of self-defence and same was discernible from the prosecution evidence , benefit of the same was to be given to the accused.

Ashiq Hussain v. The State 1993 SCMR 417 and Zaheer Din v. The State 1993 SCMR 1628 rel.

Zulfiqar Ahmad and Zaheer Ahmad Qureshi for Appellant.

Raja Muhammad Zubair, A.A.G. for the State.

Qazi Muhammad Arshad for the Complainant.

YLR 2017 PESHAWAR HIGH COURT 1756 #

2017 Y L R 1756

[Peshawar (Abbottabad Bench)]

Before Qalandar Ali Khan and Ikramullah Khan, JJ

KHALIQ DAD and another---Appellants

Versus

The STATE and another---Respondents

Cr.A. No.120-A of 2012, decided on 19th April, 2016.

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

----Ss. 302, 337-A(ii) & 34---Qatl-i-amd, shajjah-i-mudihah, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused persons entered into the house of complainant, and the accused opened fire on her husband with pistol, which hit him on his neck---Accused caused injury to the complainant (lady) with blows of butt of the pistol---Husband of complainant had succumbed to the injuries---Ocular account was furnished by complainant/ injured/eye-witness--- Occurrence had taken place at 4.30 a.m. early morning at prayer time---Occurrence having been alleged to have taken place inside the house, complainant (lady) was the sole eye-witness---Complainant charged the accused persons by correctly mentioning their names after more than five months of the occurrence---Prosecution witness stated that names of both the accused persons were correctly mentioned to him by the complainant, when he arrived at the spot after the occurrence---Names of both the accused persons were correctly mentioned in the site plan prepared by the Investigating Officer on the day of occurrence--- Accused persons were arrested after few days of the occurrence but their actual names were withheld by the complainant for sufficient long time for the reason best known to her and to the prosecution---Occurrence having taken place at the time when it was dark, neither the location of source of light was mentioned in the site plan nor bulb lit on the spot at that time was taken into possession to prove availability of electricity facilitating identification of the accused persons by the complainant---Main door of the house being open at the odd hours for facilitating the entry of the accused persons into the house created confusion about the veracity of the prosecution case---Exit wound was available on the body of deceased but no spent bullet was recovered from the room where the occurrence allegedly took place---Sole ocular account furnished by the complainant, replete with improvements on certain material points without independent corroboration, created reasonable doubt in favour of the accused persons---Accused persons were therefore, acquitted in circumstances by setting aside conviction and sentence recorded by Trial Court.

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

----Ss. 302, 337-A(ii) & 34---Qatl-i-amd, shajjah-i-mudihah, common intention---Appreciation of evidence---Benefit of doubt--- Medical evidence--- Scope---Prosecution case was that accused persons entered into the house of complainant, and the accused opened fire on her husband with pistol, which hit him on his neck---Accused caused injury to the complainant (lady) with blows of butt of the pistol---Husband of complainant had succumbed to the injuries---Postmortem report showed entry wound at the neck of the deceased with blackening and exit wound at left posterior chest at the level of angle of scapula along with the posterior auxiliary fold---Said wound would not only suggest firing from a close range but the bullet travelling downwards, which would raise some questions about the body position of the deceased at the time of the occurrence---Medical report of injured witness/complainant showed deep lacerated wound on her skull, resulting from hard sharp weapon and exposing bone tended to raise question about alleged use of pistol butt by accused for causing injury on the head of the complainant---Wound on the forehead of the deceased and fracture of his 6th and 7th ribs along posterior auxiliary fold left side told a different story---Circumstances established that medical evidence was not in line with the report of complainant as alleged in the FIR and in the ocular account, which created doubt about the veracity of the case---Accused persons were acquitted in circumstances by setting aside conviction and sentence recorded by Trial Court.

Atif Ali Jadoon for Appellants.

Raja Muhammad Zubair Assistant AG and Sardar Waqar-ul-Mulk for Respondents.

YLR 2017 PESHAWAR HIGH COURT 1841 #

2017 Y L R 1841

[Peshawar (Mingora Bench)]

Before Ikramullah Khan, J

MUHAMMAD RASOOL---Petitioner

Versus

Malik NADIR KHAN and 8 others---Respondents

W.P. No.20-M of 2014, decided on 9th February, 2017.

(a) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----Ss. 117, 2, 3 & 4 (9) (10)---Provincially Administered Tribal Area---Demarcation of land by the Revenue Officer---Scope---Application for demarcation of land was moved which was dismissed by the District Officer (Revenue) but Member Board of Revenue remanded the same to carry out the demarcation proceedings in accordance with law---Validity---Revenue Officer might define the limits of any estate, holding or field and erect marks or referred the same already made---Government might by notification exempt any area from the operation of Khyber Pakhtunkhwa Land Revenue Act, 1967---Settlement operation was not given effect despite the fact that Khyber Pakhtunkhwa Land Revenue Act, 1967 was enforced in the District, however settlement of lands owned by the State had already been completed---Provisions contained in S.3 of Khyber Pakhtunkhwa Land Revenue Act, 1967 only excluded land from the operation of said Act which was occupied as the site of a Town or Village and was not assessed to land revenue while all other estates, holding and field were not excluded therefrom---No separate record had been prepared with regard to lands owned by public-at-large even then revenue officer might exercise its power envisaged under S. 117 of Khyber Pakhtunkhwa Land Revenue Act, 1967---No provision of the Act excluded any field falling within the boundaries of Provincially Administered Tribal Area from the operation of the Act with regard to demarcation or partition---Government was directed to enforce the provisions of Khyber Pakhtunkhwa Land Revenue Act, 1967 to initiate settlement operation and maintain record of land for any other purpose---Constitutional petition was dismissed in circumstances.

(b) Words and phrases---

----'Field'---Meaning---"Field" means any land not falling within the definition of "estate" or "holding".

Nemo for Petitioner.

Nemo for Respondents.

YLR 2017 PESHAWAR HIGH COURT 1887 #

2017 Y L R 1887

[Peshawar (Mingora Bench)]

Before Muhammad Younis Thaheem, J

GOVERNMENT OF KHYBER PAKHTUNKHWA through Senior Member Board of Revenue and 3 others---Appellants

Versus

Nawabzada MUHAMMAD SHAHABUDDIN through legal Heirs and others---Respondents

R.F.A. No.53-M with C.Ms. Nos.727, 828 and 1001 of 2016, decided on 17th November, 2016.

Land Reforms Regulation, 1972 [MLR No.115]---

----Preamble---Judgments by Supreme Court and High Court, implementation of---Objections by Provincial Government---Scope---Dispute was with regard to land---Federal Land Commission had decided the matter in year 1975 and High Court had given its verdict in the matter in favour of predecessor-in-interest of land owner which was maintained by the Supreme Court---Lower Appellate Court had rejected objection petition by Provincial Government in implementing the orders passed by superior courts---Validity---Provincial Government had failed to point out as to what kind of hindrance existed with the Provincial Government in implementation/execution of the orders and judgments---Once the matter was decided by High Court and Supreme Court, Provincial Government lost all legal and ethical grounds for interference---High Court in appeal declined to interfere in the order passed by Lower Appellate Court.

2003 SCMR 501; PLD 2004 SC 570; 2010 CLC 1527; 1996 CLC 539; 1999 SCMR 1633; 2012 SCMR 366; 1994 CLC 500; 2004 CLC 1633; 1986 MLD 1961; 1991 SCMR 1149; 1999 CLC 1845 and PLD 1974 Kar. 426 ref.

Sabir Shah, A.A.G. for Appellant.

Rana Muhammad Arshad Khan, Ihsanullah and Muhammad Nabi for Respondents.

YLR 2017 PESHAWAR HIGH COURT 1967 #

2017 Y L R 1967

[Peshawar]

Before Waqar Ahmed Seth and Muhammad Younis Thaheem, JJ

ABDUL SAMMAD alias SAMMAD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 451-P and Murder Reference No. 10 of 2014, decided on 18th November, 2015.

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

----Ss. 302(b), 324, 337-F(iii), & 34---Qatl-i-amd, attempt to commit qatl-i-amd, mutalahimah, common intention---Appreciation of evidence---Ocular account corroborated by medical evidence---Prosecution case was that complainant was present near his house when accused along with co-accused duly armed with firearms came there and started altercation with him---Parents of the complainant came out of their house after hearing the same---Both the accused started firing at the complainant party as a result of which, parents of complainant got hit and died on the spot whereas complainant sustained injuries---Prosecution produced two eye-witnesses including complainant who received injuries during the occurrence---Complainant reiterated the same facts and levelled the same allegations against the accused in a mode and manner as he had mentioned in the report---Eye-witness supported the stance taken by complainant---Statements of both the eye-witnesses were consistent regarding commission of offence by the accused and co-accused---Both the parties being co-villagers and relatives inter-se were known to each other and after altercation of accused with the complainant, their misidentification would be out of question---Occurrence lasted for some time, which gave sufficient time to eye-witnesses to identify the accused and co-accused and the role played by them at the spot---Presence of eye-witnesses at the spot had been established through plausible explanation---Eye-witnesses had corroborated each other on all material aspects of the case and their evidence was not only straightforward, but the same was confidence inspiring---Defence had failed to shatter credibility of eye-witnesses during the course of cross-examination---Medical evidence furnished by two medical officers, had fully supported the ocular account---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 324, 337-F(iii), & 34---Qatl-i-amd, attempt to commit qatl-i-amd, mutalahimah, common intention---Appreciation of evidence---Recovery of crime empties and other articles---Scope---Recoveries of blood stained earth and seven empties of 7.62 bore from the spot along with medical evidence, Forensic Science Laboratory report and site plan suggested that deceased were done to death and complainant received injuries during the occurrence---Appeal against conviction was dismissed accordingly.

----Ss. 302(b), 324, 337-F(iii), & 34---Qatl-i-amd, attempt to commit qatl-i-amd, mutalahimah, common intention---Appreciation of evidence---Abscondance of accused---Evidentiary value---Accused had remained absconder for sufficient long time---Proceedings under Ss. 204 & 87, Cr.P.C. were initiated against him---Abscondance of accused could be taken as corroborative piece of evidence in presence of ocular account and other evidence---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 324, 337-F(iii), & 34---Qatl-i-amd, attempt to commit qatl-i-amd, mutalahimah, common intention---Appreciation of evidence---Motive, proof of---Prosecution case was that accused party had attacked upon the complainant party, murdered the deceased and injured the complainant---Complainant had explained the motive by stating that occurrence took place due to previous ill-will---Criminal case had been registered on the report of deceased father of complainant against the absconded co-accused (brother of accused), which supported the stance of complainant regarding motive about the occurrence---Appeal against conviction was dismissed accordingly.

Barrister M. Zahoorul Haq for Appellant.

Syed Abdul Fayaz for the Complainant.

Mian Arshad Jan A.A.G. for the State.

YLR 2017 PESHAWAR HIGH COURT 2019 #

2017 Y L R 2019

[Peshawar]

Before Yahya Afridi, C.J. and Ikramullah Khan, J

MUHAMMAD IQBAL---Petitioner

Versus

NABI AHMAD and 7 others---Respondents

Writ Petitions Nos.394-P, 472-P and 486-P of 2016, decided on 6th April, 2017.

(a) Khyber Pakhtunkhwa Local Councils (Conduct of Elections) Rules, 2014---

----Rr. 46, 50, 51, 52, 45 & 5---Representation of the People Act (LXXXV of 1976), S. 63---Civil Procedure Code (V of 1908), O. VI, Rr. 17 & 15---Local government election---Election petition, verification of---Election Tribunal, powers of---Scope---Application for dismissal of election petition was moved on the ground that provision of R. 46 of Khyber Pakhtunkhwa Local Councils (Conduct of Elections) Rules, 2014 had not been followed but same was dismissed by the Election Tribunal---Validity---Election Tribunal had powers as envisaged under any provision of Civil Procedure Code, 1908---Election Tribunal could ratify and allow a party to amend its pleadings---Petitioners had verified on oath the whole election petition---Provisions of O. VI, R. 15, C.P.C. did not describe that pleadings should be paragraphed but intention was that the stance of knowledge and verification should be numbered separately---If petitioner verified the whole contents of election petition on his own satisfaction and knowledge then same would be absurd to conform with the exact provision of law envisaged under O. VI, R. 15, C.P.C.---Deponent should not be held responsible or be penalized for act or omission of Oath Commissioner or Notary Public for not drawing the exact oath---Petition under S.63 of Representation of the People Act, 1976 had to be presented before an Inquiry Officer while election petition under Khyber Pakhtunkhwa Local Councils (Conduct of Elections) Rules, 2014 was directly to be instituted before the Election Tribunal---Legislature had used the word 'may' instead of 'shall' in order to ratify any error or mistake if any occasioned in filing of election petition---Election Tribunal had all powers of a civil Court trying a suit under Civil Procedure Code, 1908---Election Tribunal could allow party to correct any error, amend and remove any defect in the election petition including omission to sign or verify pleadings---Election Tribunal had power and jurisdiction to remedy any defect during the course of trial, if any, either in signing the petition or in verification procedure---Constitutional petition was dismissed in circumstances.

Engineer Iqbal Zafar Jhagra's case 2000 SCMR 250 and Syed Iftikhar Hussain's case 1997 CLC 1724 distinguished.

Niaz Muhammad Khan's case PLD 1974 SC 134 and Ch. Riffat Hussain's case PLD 1980 Lah. 626 rel.

(b) Interpretation of statutes---

----Where language of an enactment was clear and unambiguous, the words of that statute should be given their ordinary and dictionary meaning and recourse to external consideration was permissible only when language of statute was not specific, precise or ambiguous.

----Provisions of law should not be so interpreted to thwart or frustrate the same.

(d) Administration of justice---

----No one should be condemned for any act or omission of a court or authority.

(e) Administration of justice---

----Technicalities should be ignored in strive for just cause of furtherance of justice.

Hassan UK Afridi for Petitioner.

Ghulam Abbas Election Officer and Mansoor Tariq for Respondents.

YLR 2017 PESHAWAR HIGH COURT 2074 #

2017 Y L R 2074

[Peshawar]

Before Ikramullah Khan, J

GUL FARAZ---Petitioner

Versus

MUHAMMAD FARAZ and 2 others---Respondents

W.P. No.3834-P of 2015, decided on 30th January, 2017.

Civil Procedure Code (V of 1908)---

----Ss. 148, 149, O. VII, R. 11 & O. XX, Rr. 6 & 7---Suit for partition---Preliminary decree---Order of the court to deposit court fee within a month---Extension of prescribed time--- Scope--- Petitioner contended that the respondent/plaintiff had not deposited the court fee within a month as directed by Trial Court, so preliminary decree passed in his favour had automatically deemed to be rejected---Petitioner contended that the two courts below had wrongly dismissed his application for rejection of plaint of the respondent---Respondent contended that as the decree passed in his favour was preliminary, therefore, Trial Court was competent to extend prescribed time---Validity---Trial Court could direct the plaintiff to affix the court fee within a prescribed period at any stage of the suit and could pass a conditional decree, however, in the present case, the Trial Court had rendered its findings on the issue regarding the affixation of court fee but the same direction was omitted in the relief column as well as in the preliminary decree drawn accordingly---Case purely pertained to extension of period for deposit of required court fee---Order XX, R. 6, C.P.C., provided that the decree would agree with the judgment and shall specify clearly the relief granted or other determination of the suit but no such direction was rendered by Trial Court while drawing the decree in terms of O. XX, R. 7, C.P.C.---Plaint could not be rejected except where the relief claimed was under value and the plaintiff on being required by court to correct the valuation within a time to be fixed by the court, failed to do so---In the present case, time was fixed by the court for deposit of court fee, which was one month after the passing of the preliminary decree but the Trial Court had not corrected the valuation nor had specified the amount to be deposited by the respondent/plaintiff---Where the matter was not finally decided, the court while passing final decree had the jurisdiction to enlarge period for depositing the required court fee even if the time fixed already by the court, had expired---Court could not extend, enlarge or grant any further time for doing an act if it was specifically mentioned in the relevant statute in terms of S. 148, C.P.C.---Court could extend time prescribed by the court itself but the jurisdiction conferred upon a civil court in terms of S. 149, C.P.C., which related to court fee was exclusive jurisdiction to direct at any stage and allow any party to the suit to pay the whole or part of the court-fee as the case might be---No illegality or defect in jurisdiction in the impugned judgments were found---Constitutional petition was dismissed accordingly.

Nizamuddin and others v. Ch. Muhammad Saeed and others 1987 CLC 1682; Chatromal and others v. Khubchand and others 1993 SCMR 1113 and Shabbir Ahmed and others v. Zahoor Bibi and others PLD 2004 SC 790 ref.

Ali Akbar v. Sardar Din 2008 YLR 144 and Saad Ullah's case PLD 2011 Pesh. 47 distinguished.

Asad Jan Durrani and Amir Hussain for Petitioners.

Mohib Salarzai for Respondents.

YLR 2017 PESHAWAR HIGH COURT 2109 #

2017 Y L R 2109

[Peshawar]

Before Ikramullah Khan and Lal Jan Khattak, JJ

JAVED KHAN---Petitioner

Versus

PAKISTAN through Secretary Interior and 6 others---Respondents

Writ Petition No.1199-P of 2017, decided on 25th April, 2017.

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

----S.2---Placing name of petitioner on Exit Control List---Reference from National Accountability Bureau was pending---Effect---Petitioner was released on bail in two References filed against him by National Accountability Bureau and subsequently his name was placed on Exit Control List---Validity---While prohibiting a person from proceeding to a destination away from Pakistan, Ministry of Interior could not pass its order in a mechanical manner and if it was intended to curtail movement of any person for any reason then prohibition was to be through a speaking order---Petitioner was released on bail in two references filed against him by National Accountability Bureau authorities and no sufficient reason was given for placing his name in Exit Control List---Such order could not be termed as legal and valid---High Court directed the authorities to remove name of petitioner from Exit Control List as order passed by them was illegal, unlawful, without lawful authority and of no legal effect---Constitutional petition was allowed in circumstances.

Shumail Ahmad Butt for Petitioner.

Muhammad Riaz, Special Public Prosecutor for NAB for Respondents.

Manzoor Khan Khalil, DAG for Federal Government.

YLR 2017 PESHAWAR HIGH COURT 2125 #

2017 Y L R 2125

[Peshawar]

Before Waqar Ahmad Seth and Muhammad Younis Thaheem, JJ

CHAIRMAN EVACUEE TRUST PROPERTY BOARD and another---Petitioners

Versus

Mst. RUBINA IBAD and others---Respondents

Writ Petition No.1115 of 2007, decided on 16th March, 2017.

Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----Ss. 8, 10 & 17---Evacuee trust property---Declaration---Property in question was declared to be evacuee trust property and order was set aside by Federal Government in exercise of revisional jurisdiction---Validity---Federal Government as revisional authority under S. 17 of Evacuee Trust Properties (Management and Disposal) Act, 1975, was competent to call for record and examine orders passed by Chairman Evacuee Trust Property Board---High Court in its Constitutional jurisdiction was competent to examine orders passed by Chairman and revisional authority and its legality---In view of mutation and fehrist maafiyat, property in question was correctly declared by Chairman as evacuee trust property---Such was not simple 'evacuee property' available for allotment to displaced persons under Displaced Persons (Compensation and Rehabilitation) Act, 1958---Order passed by revisional authority was result of misreading and non-reading of record including documentary evidence based on wrong presumptions---High Court set aside order passed by Federal Government and restored that of Chairman Evacuee Trust Property Board---Constitutional petition was allowed in circumstances.

District Evacuee Trust Committee v. Muhammad Umar and others 1990 SCMR 25; PLD 1991 SC 586; 1991 SCMR 2206; Federation of Pakistan through Secretary Religious Affairs/Minority v. Mufti Iftikhar-ud-Din 2000 SCMR 1 and Khurshid Ahmad v. Rana Mumtaz Ahmad and others 2016 SCMR 679 ref.

PLD 2011 SC 126; 2009 SCMR 210 and 2009 SCMR 375 rel.

Maazullah Barkandi for Petitioners.

Syed Shahid Shah for Respondents Nos.1 to 7, 24 to 26.

Asghar Ali for Respondents Nos.8 to 23

Muhammad Javed Yousafzai, AAG for Respondent No.33/Federal Government.

YLR 2017 PESHAWAR HIGH COURT 2247 #

2017 Y L R 2247

[Peshawar (Mingora Bench)]

Before Muhammad Younis Thaheem, J

Dr. MUKHTIAR ALI SHAH---Petitioner

Versus

AHMAD SHAH---Respondent

Criminal Revision No.32-M of 2016, decided on 1st December, 2016.

Penal Code (XLV of 1860)---

----Ss. 500 & 501---Criminal Procedure Code (V of 1898), S.198-A---Defamation---Complainant being Medical specialist and civil servant serving as Medical Superintendent in Tehsil Headquarter Hospital had filed a complaint against the accused alleging that the material published by him in the newspaper amounted to defamation---Trial Court, after getting preliminary inquiry report conducted by police summoned the accused and after hearing arguments of parties dismissed the complaint---Validity---Record showed that Assistant Commissioner carried out inspection of the hospital on the complaint of local Member of Provincial Assembly---Accused had reported in the newspaper disclosing certain facts about irregularities in the hospital, non-availability of some instruments and other articles valuing in million of rupees donated by some foreign Non-Government Organization---Complainant had neither filed any complaint against Assistant Commissioner nor against the Member of Provincial Assembly---Complaint was filed against the local journalist, who only reported the matter in the newspaper---Allegation leveled in the complaint under Ss. 500 & 501 Penal Code, 1860 were not attracted and applicable, as the accused had performed his duty by reporting a raid conducted by Assistant Commissioner on the direction of Member of Provincial Assembly---Member of Provincial Assembly being people's representative had complained about some irregularities, mismanagement and misuse of public funds in the hospital---No case of defamation had been made out as the very element of "mens rea" which was essential element for defamation, was missing---Nothing on record, which had allegedly lowered down the reputation of complainant, even no name of complainant had been given in the news item---Fundamental Rights had been protected for expression and freedom of press---Circumstances established that no prima facie case under Ss.500 & 501 Penal Code, 1860 had been made out---Impugned order did not call for any interference---Petition was dismissed accordingly.

Abdul Wahab Khan v. Muhammad Nawaz and 7 others 2000 SCMR 1904; 1996 PCr.LJ 1615 and 1996 PCr.LJ 1615 rel.

Barrister Dr. Adnan Khan for Petitioner.

Saeed Khan and Barrister Asad Hameed-ur-Rahman for Respondent.

YLR 2017 PESHAWAR HIGH COURT 2272 #

2017 Y L R 2272

[Peshawar]

Before Mazhar Alam Khan Miankhel, C.J. and Muhammad Younis Thaheem, J

WAPDA through Chairman WAPDA and 4 others---Appellants

Versus

JAMIL AHMAD KHAN and others---Respondents

R.F.A. No.105-P of 2013, decided on 22nd March, 2016.

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

----S.23---Determination of compensation---Market value---Scope---Section 23 of Land Acquisition Act, 1894 provided a set of guidelines in various matters for taking into account at the time of determination of compensation---Market value was one of such matters to be considered by the collector or referee court which meant that the price which a willing purchaser would have paid for the land to a willing seller.

PLD 2004 SC 512 and PLD 2010 SC 719 rel.

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

----S. 18---Reference to court---Claim of enhancement of compensation---Landlord aggrieved of amount of compensation awarded by the Collector, filed reference under S.18 of Land Acquisition Act, 1894 which was dismissed by the referee court---Appeal against such order of dismissal was filed as a result of which case was remanded with direction to referee court to appoint commission for determination of amount of compensation---Referee court on report of said Commission determined the amount of compensation---Acquiring authority filed appeal and landlords filed objection petition against such order of determi-nation of amount of compensation---Held, that local commission was appointed after the remand of case and a report was submitted by him on the basis of which amount of compensation was determined---Local commission also appeared as court witness but was not cross-examined by any party which amounted to admission of his opinion---Appeal of acquiring authority and objection petition filed by the landlord were dismissed accordingly.

Anwar Hussain and Sher Muhammad Litigation Clerk for Appellants.

Mazullah Barkandi for Respondents.

2017 Y L R 2379

[Peshawar (Abbottabad Bench)]

Before Muhammad Ghazanfar Khan, J

NASEEB GUL and 2 others---Petitioners

Versus

HAYAT MIR and 8 others---Respondents

Civil Revision No.527-A of 2011, decided on 5th April, 2016.

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

----Arts. 47, 90, 91 & 92---Specific Relief Act (I of 1877), Ss. 12 & 42---Suit for declaration on the basis of agreement to sell---Production of certified copies of previous litigation---Scope---Plaintiffs sought declaration being owner in possession on basis of agreement to sell---Defendant contended that fate of agreement to sell had already been decided in previous suit(s) whose certified copies were produced in Trial Court---Validity---Present plaintiffs/petitioners derived their title from two deeds exhibited during Trial Court proceedings---Validity of said two deeds were questioned in a previous suit wherein present petitioners were defendants and they submitted cognovits to the claim of then plaintiffs---Said documents had been exhibited in the proceedings of subsequent suit which was now in question before High Court---Similarly, on the basis of said deeds pre-emption suit was filed wherein on denial of the vendor regarding execution of sale deed, pre-emption suit was withdrawn, meaning thereby fate of the deeds relied upon by the present petitioners had already been decided by the courts of competent jurisdiction---Articles 90, 91 & 92 of Qanun-e-Shahadat, 1984 was relevant as respondents had exhibited certified copies of previous litigation qua same deeds which were disputed now, so any decision made by a competent court of jurisdiction regarding genuineness or otherwise of said deeds was a relevant factor which could rightly be adjudged after going through the record---Article 47 of Qanun-e-Shahadat, 1984, did not relate to a situation like in the present case, because Art. 47 only dealt with the statement of a person, who, after giving statement or producing some document in previous litigation between the parties, was dead or his attendance could not be procured with an amount of delay or expenses, so such was not the present case---In the present case, it was simply the respondents, who in rebuttal of the claim of present petitioners, had produced certified copies of the judgment and decrees, fate of which had already been decided by the courts of competent jurisdiction---No ground of interference by High Court existed, revision---Petition was dismissed accordingly.

Mehboob Ali for Petitioners.

Muhammad Ilyas Khan for Respondents.

YLR 2017 PESHAWAR HIGH COURT 2419 #

2017 Y L R 2419

[Peshawar]

Before Lal Jan Khattak and Shakeel Ahmad, JJ

SHAHID KHAN and 3 others---Petitioners

Versus

The STATE through Station House Officer (SHO) and 2 others---Respondents

Writ Petition No.4985-P of 2016, decided on 21st June, 2017.

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

----Ss. 155 & 249-A---Information in non-cognizable cases---Investigation without permission of Magistrate---Effect---Quashing of FIR---Scope---Information with regard to commission of non-cognizable offence was to be entered in a book prescribed as 'Roznamcha' or 'Station Diary'---Police was not to initiate any action with regard to such offence and complainant or informant after having a copy of said report was to be sent away---If Station House Officer deemed it fit to initiate investigation then police had to take permission of the Magistrate---Provision of S.155(2), Cr.P.C. requiring order of a Magistrate for investigation of a non-cognizable offence was mandatory in nature---If any arrest was to be made then it could only be made after obtaining warrant of arrest from the Magistrate---When law required a thing to be done in a particular manner, it ought to be done in that manner or not at all---Mandatory provision of law had been violated by the police by registering the FIR against the petitioner in a non-cognizable offence without following the prescribed procedure---Availability of alternate remedy would not bar the jurisdiction of High Court to entertain a petition under Art.199 of the Constitution---Aggrieved person was not to be directed to first avail remedy under S.249-A, Cr.P.C. when impugned order suffered from want of jurisdiction or was void ab initio or had been passed in disregard of law---Each criminal case was to be judged on its own merit---If there was no probability of accused being convicted of any offence and proceedings before the Trial Court were allowed to continue would be an abuse of process of Court, wastage of time and a futile exercise then FIR should be quashed---Further proceedings in the present case would be a wastage of time and prosecution was not likely to succeed---FIR was ordered to be quashed in circumstances---Constitutional petition was allowed.

Irshad Begum and others v. The State PLD 1961 Lah. 882; Hussain Bakhsh v. The State PLD 1963 W.P. Lah. 46; Muhammad Rashid v. The State PLD 1964 Kar. 381; Muhammad Bashir alias Doba v. The State PLD 1988 Lah. 574; Sabz Ali Khan and 2 others v. Inspector General of Police Khyber Pakhtunkhwa and 3 others 2016 YLR 1279 and Miraj Khan v. Gul Hameed and 3 others 2000 SCMR 122 rel.

(b) Constitution of Pakistan---

----Art. 4---Protection of law and treatment in accordance with law.

Federal of Pakistan and others v. Shaukat Ali Mian and others PLD 1999 SC 1026 rel.

---Art. 199---Constitutional jurisdiction of High Court---Scope.

Miraj Khan v. Gul Hameed and 3 others 2000 SCMR 122 rel.

(d) Administration of justice---

---When law required a thing to be done in a particular manner then it ought to be done in that manner or not at all.

Muhammad Aslam v. The State 1993 PCr.LJ 205 rel.

Muhammad Farooq Afridi for Petitioners.

Rab Nawaz Khan, A.A.G. for Respondents.

YLR 2017 PESHAWAR HIGH COURT 2458 #

2017 Y L R 2458

[Peshawar]

Before Lal Jan Khattak, J

REHMAN ULLAH---Petitioner

Versus

The STATE and another---Respondents

Cr.M.B.A. No.883-P of 2017, decided on 12th June, 2017.

Criminal Procedure Code (V of 1898)---

----Ss. 497---Emigration Ordinance (XVII of 1979), Ss. 18(b) & 22(b)---Fraudulently inducing to emigrate etc., receiving money etc. for providing foreign employment---Bail, grant of---Further inquiry---Accused was charged for taking money from complainant in order to send him abroad---No specific date was mentioned on which the complainant gave money to accused for the purpose---Lesser punishment would be considered by court for the purpose of bail when statute had provided two punishments simultaneously for commission of an offence---No certainty existed as to what term of imprisonment would be awarded to the accused---Investigation in the case was complete and accused was no more required for further investigation---Bail was granted accordingly.

2006 MLD 1062; 2012 YLR 1106/2511; 2014 PCr.LJ 297; 2016 YLR 355 and 2016 PCr.LJ 1238 rel.

Arshad Hussain Yousafzai for Petitioner.

Shahab Khattak for the Complainant.

Muhammad Safdar Khan, Standing Counsel for the State.

YLR 2017 PESHAWAR HIGH COURT 2472 #

2017 Y L R 2472

[Peshawar]

Before Assadullah Khan Chamkani, J

KHALIL KHAN---Petitioner

Versus

The STATE and another---Respondents

Cr. Misc. B.A. No.2482-P of 2015, decided on 1st February, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 457, 380 & 120-B---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 14---Khyber Pakhtunkhawa Restriction of Rented Building (Security) Act (XIV of 2014), S. 10---Lurking house-trespass by night, theft in dwelling house, criminal conspiracy, theft liable to tazir---Bail, grant of---Further inquiry---Complainant, in his initial report, charged unknown culprits for committing theft in his jewellry shop---Complainant got recorded his statement under S. 164, Cr.P.C., after more than one and a half months, and besides charging absconding co-accused and unknown co-accused, also charged accused by attributing him the role of instigation in the commission of offence---Complainant advanced a motive that accused had rented out his shop contiguous to his shop to co-accused without any rent deed or surety, against which he complained to the accused about his apprehension regarding theft by the co-accused---Except the alleged motive, no other piece of direct or circumstantial evidence was available to connect the accused with the commission of offence---Role of instigation attributed to the accused could only be determined after recording evidence--- Circumstances established that participation of the accused in the commission of offence required further probe into his guilt---Accused was allowed bail in circumstances.

S. Abdul Fayaz Khan for Petitioner.

Waqar Ahmad Khan A.A.G. for the State

YLR 2017 QUETTA HIGH COURT BALOCHISTAN 113 #

2017 Y L R 113

[Balochistan (Sibi Bench)]

Before Muhammad Kamran Khan Mulakhail and Ghulam Mustafa Mengal, JJ

ELLA-UD-DIN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.(s)55 of 2014, decided on 24th July, 2014.

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

----S. 9(c)---Possessing and trafficking of narcotics---Appreciation of evidence---Accused was driving the car in question, while co-accused was sitting next to him on front seat---On search of car 82 packets of backed charas of one Kg. each, were recovered---Specimen from each packet was separated for chemical analysis and a separate parcel of 500 grams was sealed for chemical analysis---Accused persons were arrested on the spot with recovered contraband substance---Sending the recovered contraband item with delay of beyond the period of 72 hours, would not vitiate the trial---Contradictions in the statements of prosecution, though were always fatal to the prosecution case, but a distinction was to be made between minor inconsistencies or variance in the testimony of witness from the contradictions in the evidence---Only such statements would be termed as contradictory which were either destructive of each other or were totally different to the extent that two versions could not be reconciled---Minor discrepancies in the present case, were not of such nature---Alleged contraband was recovered from the secret cavities of the car; driver could not be absolved from the responsibility, as he being the driver would have knowledge about the prohibited substance secretly concealed in the car---Knowledge and the conscious possession of both accused persons, could not be ruled out in presence of un-impeachable prosecution evidence---Co-accused was rightly held responsible for committing the offence, charged against him---Ocular testimony, recovery of substance, positive Forensic Science Laboratory report, had fully proved case against accused persons---Accused persons, could not establish that they were substituted---Prosecution successfully proved its case against the accused persons without shadow of doubt, no interference was required by High Court---Impugned judgment passed by Special Judge for narcotics, was upheld, and appeal was dismissed in circumstances.

Abdul Khaliq Sumalani for Appellant.

Abdullah Kurd for the State.

YLR 2017 QUETTA HIGH COURT BALOCHISTAN 179 #

2017 Y L R 179

[Balochistan]

Before Muhammad Ejaz Swati, J

BAHADUR KHAN and 6 others---Petitioners

Versus

MUHAMMAD ANWAR and others---Respondents

Civil Revision No.104 of 2015, decided on 19th October, 2016.

Balochistan Civil Courts Ordinance (II of 1962)---

----S. 18---Suits Valuation Act (VII of 1887), S. 11---Partition Act (IV of 1893), S. 4---Suit for possession through partition---Forum of appeal---Determi-nation of---Principles---Forum of appeal was to be determined on the basis of original value of the suit---Pecuniary jurisdiction of District Judge was subject to valuation in the plaint---Appeal against the decree or order of Civil Judge would lie to the District Judge if the value of original suit in which such decree or order was made did not exceed Rs. 5,00,000/- and to the High Court in any other case---If defendant questioned the original value of the suit or Court disagreed with the determined jurisdiction value of the suit assessed by the plaintiff then the Trial Court could pass order fixing the value after framing issue and providing an opportunity to the parties to produce evidence---Pecuniary jurisdiction of the Court had to be determined with reference to the valuation given in the plaint and could not be connected to the escalation in the price of the property during pendency of the suit---Valuation of the property for the purpose of jurisdiction would be same as mentioned in the plaint unless determined by the Trial Court after framing issue---Suit for the purpose of jurisdiction and court-fee was valued as Rs. 37.50/---Neither the defendant questioned nor the Trial Court had determined the original jurisdiction value of the suit by way of framing of issue---Valuation of suit for the purpose of jurisdiction in the matter of appeal would be the same as mentioned in the plaint---Petitioners had rightly availed remedy of appeal before the District Judge but order of return of memo of appeal had been passed which was not sustainable---Impugned order was set aside and appeal filed would be deemed to be pending before the Appellate Court---Appellate Court should decide the matter in accordance with law within a period of two months---Revision was allowed in circumstances.

1999 SCMR 394 and 2005 SCMR 1933 ref.

Illahi Bakhsh v. Mst. Balqees Begum PLD 1985 SC 393; Muhammad Ayub and 4 others v. Dr. Obaidullah and 6 others 1999 SCMR 394 and Zafeer Gul v. Dr. Riaz Ali 2015 SCMR 1691 rel.

Khalil Ahmed Panezai for Petitioners.

Syed Manzoor Shah for Respondents Nos. 1A to 6.

Muhammad Saleem Lashari and Sheikh Muhammad Ali for Respondents Nos.10, 11 and 12.

YLR 2017 QUETTA HIGH COURT BALOCHISTAN 275 #

2017 Y L R 275

[Balochistan]

Before Muhammad Noor Meskanzai, C.J. and Muhammad Ejaz Swati, J

MUHAMMAD KALEEMULLAH---Petitioner

Versus

Mst. REHANA NASEER and 2 others---Respondents

C.P. No.438 of 2014, decided on 25th August, 2016.

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

----S. 5, Sched.---Suit for recovery of dower, dowry articles and maintenance allowance--- Receipts / documentary evidence were received by the Trial Court in the statement of plaintiff---Appellate Court had not considered as to whether said receipts could have been allowed to be produced by the plaintiff in her statement and were admissible under the law---Impugned judgment and decree passed by the Appellate Court were set aside and case was remanded to the Appellate Court for decision on merits after providing an opportunity of hearing to the parties within a specified time---Constitutional petition was allowed in circumstances.

Province of Punjab through Collector and others v. Muhammad Farooq and others PLD 2010 SC 582 and Mst.Yasmeen Bibi v. Muhammad Ghazanfar Khan and others PLD 2016 SC 613 rel.

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

----Ss. 14 & 5, Sched---Family Courts Rules, 1965, R. 22---Limitation Act (IX of 1908), S.12---Decree of family court---Appeal--- Limitation--- Calculation of---Procedure---Appeal against the judgment and decree passed by the Family Court could be filed within 30 days after passing of the same---Said limitation would run from the date of passing of decree and the day on which judgment and decree had been passed would be excluded.

Ahsan Rafique Rana for Petitioner.

Shahid Javed Nagi for Respondent No.1.

YLR 2017 QUETTA HIGH COURT BALOCHISTAN 372 #

2017 Y L R 372

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

PRINCIPAL, BOLAN MEDICAL COLLEGE, QUETTA---Petitioner

Versus

Dr. SHARBAT KHAN and 4 others---Respondents

Civil Revision No.235 of 2012, decided on 26th August, 2016.

Civil Procedure Code (V of 1908)---

----S. 35-A---Compensatory costs for false or vexatious defenses---Requirements---Trial Court while deciding the case imposed costs under S. 35-A, C.P.C. upon the defendant---Validity---Written statements were filed with specific pleas but there was no objection on the part of plaintiff---Nothing was on record to object that defence taken against the plaintiff was false or vexatious to the knowledge of defendant---Objection had to be taken by a party at an earliest opportunity and such claim should have been held to be false and vexatious by recording reasons---Trial Court had failed to state reason on basis whereof defence was held to be false or vexatious---Nothing was on record that defendant had knowledge that defence taken was false and vexatious---Trial Court was not justified to allow compensatory costs in circumstances---Impugned judgment and decree to the extent of compensatory costs were set aside---Revision was allowed in circumstances.

Rauf Atta for Petitioner (called absent).

Zafarullah Langove and Naseer Ahmed Bangulzai Additional Advocate General for Respondent No.1.

YLR 2017 QUETTA HIGH COURT BALOCHISTAN 428 #

2017 Y L R 428

[Balochistan]

Before Jamal Khan Mandokhail and Zaheer-ud-Din Kakar, JJ

SHAH WALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.322 and Murder Reference No.21 of 2015, decided on 28th September, 2016.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Ocular evidence---Two eye-witnesses had furnished a forthright and confidence inspiring eye-account duly supported by medical evidence, recovery of three empties from the place of incident, blood stained earth and blood stained clothes of the deceased as well as pointation of the accused---Witnesses remained firm to the test of cross-examination---Said witnesses were subjected to lengthy cross-examination, but nothing advantageous could be extracted rendering any assistance to the case of accused, who was fully implicated by them---No serious enmity was alleged against the said eye-witnesses---Accused came prepared, armed with deadly weapon---Appeal against conviction was dismissed.

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

----S. 302---Qatl-i-amd---Abscondance of accused---Effect---Corroborative evidence---Accused remained absconder for about seven months---Such a long unexplained abscondance of the accused was a corroboratory factor, which could not be ignored as the same had indicated the guilt of accused---Appeal against the conviction was dismissed.

Inayat Ali v. The State PLD 2002 SC 77 rel.

----S. 302---Qatl-i-amd---Chance witness---Testimony of chance witness---Reliance---Scope---Defence had objected that eye-witnesses were chance witnesses, thus their statements were not reliable---Eye-witnesses had explained the occurrence reasonably, as such, they were trustworthy---If the chance witness reasonably explained his presence at the spot, he could not be said to be a chance witness---Appeal against conviction was dismissed.

Anwar Shamim v. The State 2010 SCMR 1791 rel.

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

----S. 302---Qatl-i-amd---Related witness---Testimony of closely related witness---Reliance---Scope---Defence had objected that prosecution eye-witnesses being nephews of the deceased, were interested witnesses, thus their statements were not reliable---Relationship of witnesses inter se or with the deceased, alone, could not be made basis to disqualify them from being truthful witnesses---Mere relationship of witness with the deceased did not make him/her interested, because an interested witness was the person who had motive to falsely implicate the accused---Appeal against the conviction was dismissed.

Iqbal v. The State 1994 SCMR 1 rel.

(e) Criminal trial---

----Minor contradictions or improvements in the statement of prosecution witnesses---Effect---Minor contradictions or improvements in the statements of witnesses were to be overlooked and only material contradictions were to be considered.

Ranjha v. The State 2007 SCMR 455 rel.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Case of two versions---Defence had alleged that murder of the deceased was committed by some unknown persons as there was enmity between father of the deceased and other persons---Where the case was that of two versions, one version was to be believed in toto and not in piecemeal---Court was duty bound to review the entire evidence that had been produced by the prosecution and the defence---In the present case, versions of both the parties were considered and the version put forth by the prosecution seemed to be trustworthy, based on unimpeachable and tangible evidence---FIR had been promptly lodged and accused was nominated in the FIR with specific role; prosecution eye-witnesses had implicated the accused in the commission of offence; incident was of daylight and the defence had failed to establish false implication or substitution; oral and medical evidence were in line and accused remained absconder for seven months---Appeal against conviction was dismissed.

Safdar Ali v. Crown PLD 1953 FC 93 rel.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Motive, not proved---Effect---Failure to prove motive was not fatal to the prosecution---Appeal against conviction was dismissed.

Syed Hamid Mukhtar Shah v. Muhammad Azam 2005 SCMR 427 rel.

Muhammad Aslam Chishti for Appellant (in Criminal Appeal No.322 of 2015).

Ameer Hamza Mengal, Deputy P.G. for the State (in Criminal Appeal No.322 of 2015).

Ameer Hamza Mengal, Deputy P.G. for the State (in Murder Reference No.21 of 2015).

Muhamad Aslam Chishti for Respondent (in Murder Reference No.21 of 2015).

YLR 2017 QUETTA HIGH COURT BALOCHISTAN 589 #

2017 Y L R 589

[Balochistan]

Before Muhammad Noor Meskanzai, C.J.

NAVEED AHMED---Petitioner

Versus

Syed ISRAR HAIDER RIZVI and 2 others---Respondents

Civil Revision No.95 of 2014, decided on 26th August, 2016.

Civil Procedure Code (V of 1908)---

----S. 47 & O. VII, R. 2---Money suit---Execution petition---Requirements---Objection petition---Similarity of names---Effect---Contention of petitioner was that he was neither party in the suit nor had got any involvement in the subject matter---Objection petition was dismissed by the Executing Court---Validity---Petitioner had no concern with the entire transaction right from the payment of amount uptill establishment of the company---Issue should have been framed with regard to identity of the petitioner as a judgment-debtor---Executing Court without appreciating the material available on record had discarded the request of framing the issue to identify the judgment debtor unjustifiably---Decree could be executed against a person who was not a judgment-debtor provided he was a surety, a purchaser pendente lite, a heir of deceased judgment debtor or in possession of subject property of decree---Sameness of name was not sufficient to bring someone within the clutches of the decree---Besides sameness of name one must have same interest, character or capacity within the meaning of judgment debtor---None of the said requirements had been satisfied in the present case---Petitioner could not be held liable for satisfaction of decree in any capacity---Petitioner was neither party in the suit nor was partner, guarantor or surety---Impugned order passed by the Executing Court was set aside---Execution proceedings should remain pending and be finalized in accordance with law---Revision was allowed in circumstances.

National Bank of Pakistan v. S.R. Rehmatullah and another PLD 1970 Lah. 330 rel.

Mehmood Sadiq Khokar and Nadeem Akhtar for Petitioner.

Ehsan Rafique Rana and Adnan Ejaz for Respondents.

YLR 2017 QUETTA HIGH COURT BALOCHISTAN 658 #

2017 Y L R 658

[Balochistan]

Before Jamal Khan Mandokhail and Zaheer ud Din Kakar, JJ

NAZAR KHAN---Applicant

Versus

TARIQ KHAN and 6 others---Respondents

Criminal Bail Cancellation Application No.203 of 2015, decided on 31st October, 2016.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302, 324, 427, 147, 148, 149 & 109---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, mischief, rioting, rioting armed with deadly weapons, unlawful assembly, abetment, act of terrorism---Petition for cancellation of bail, dismissal of---Scope---Provisions of S.497(5), Cr.P.C. being not punitive there was no compulsion for the cancellation of bail unless the order of bail was patently illegal, erroneous and factually incorrect and had resulted in miscarriage of justice---Accused persons, in the present case, were not found to be making efforts to misuse concession of bail by extending threats or tampering with the prosecution case---Strong and exceptional reasons were required for cancellation of bail---No such element was found in the case---Petition for cancellation of bail was dismissed, in circumstances.

Zia-ul-Hassan Shah and another v. The State 1996 SCMR 238 rel.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302, 324, 427, 147, 148, 149 & 109---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, mischief, rioting, rioting armed with deadly weapons, unlawful assembly, abetment, act of terrorism---Petition for cancellation of bail, dismissal of---Trial was in progress and two prosecution witnesses had been examined in the case---Ordinarily, interference was not made with the order relating to bail, particularly in case when trial had commenced, so as to avoid discussion and remarks on merits of the case---Petition for cancellation of bail was dismissed, in circumstances.

Ehsan Akbar v. The State and 2 others 2007 SCMR 482 and Mian Dad v. The State and another 1992 SCMR 1418 rel.

Akram Shah for Applicant.

Ameer Hamza Mengal, Deputy Prosecutor General for the State.

YLR 2017 QUETTA HIGH COURT BALOCHISTAN 878 #

2017 Y L R 878

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

WAQAS ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.261 of 2016, decided on 28th November, 2016.

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

----S.9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)---Seizure of narcotics---Chemical analysis---Appreciation of evidence---Benefit of doubt---Delay in sending samples of contraband for analysis---Validity---Record showed that alleged contraband was sent to Forensic Science Laboratory for analysis after lapse of one month and twenty four days from the date of its recovery---Investigating Officer ought to have sent the samples for analysis within 72 hours to the Forensic Science Laboratory as required by R.4(2) Control of Narcotic Substances (Government Analysts) Rules, 2001---No explanation was available to show that during the intervening period, whether the samples were kept in safe custody and that the same was not manipulated or replaced/ changed---Delay of one month in sending the sample for examination would cast serious doubt about the prosecution case, benefit of which would resolve in favour of accused---Appeal was allowed and conviction and sentences recorded by Trial Court against accused persons were set-aside in circumstances.

(b) Sentence---

----Principle---Where harsher sentence was involved, stricter proof was required to substantiate the charge.

----Ss.9(c) & 36---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 5 & 6---Possession of narcotic substance---Appreciation of evidence---Chemical Examiner Report ---Proof---Record showed that Report of Chemical Examiner bore only one signature of the Analyst---Control of Narcotic Substances (Government Analysts) Rules, 2001 prescribed Form-II, which stipulated the signatures of two authorized officers of the Laboratory---Report was silent about the necessary protocol, the test applied and the result---Neither any protocol was mentioned in the Report nor any test was referred to on the basis whereof the Chemical Expert had concluded that the samples sent for examination contained "raw charas"---Said Report did not mention the name of police officer, who had taken the contraband to the office of the Chemical Examiner---Admittedly, no police officer had been produced in court to depose about safe custody of the samples entrusted to him for being deposited in the office of Chemical Examiner---Such report, which suffered from legal flaws could not be considered as conclusive proof and was not to be considered as admissible in evidence---Non-conclusive and non-speaking laboratory report, which was not compiled according to mandate of law and rules framed thereunder, could not be relied for conviction---Accused was acquitted, in circumstances by setting aside conviction and sentence recorded by Trial Court.

Ikramullah v. State 2015 SCMR 1002 rel.

(d) Administration of justice---

----Particular procedure for doing any act prescribed by law; if not complied with, that would amount to violation of law.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Allegation against accused was that 275 packets of baked charas, each packet contained 1-kg, total 275-kg was recovered from the vehicle of accused---Record showed that accused along with vehicle were brought to police station, where the recovery proceedings were carried out---Police had failed to carry out the recovery proceedings at the spot---Complainant had failed to tender any plausible explanation as to why the alleged contraband was not sealed at the spot---Non-sealing of samples soon after its recovery created serious doubt in the prosecution case---No implicit reliance could be placed on Chemical Examiner's report as the said report had lost its evidentiary value---Police had not separated samples for analysis either at the spot or even in the police station---Entire contraband was sent to Forensic Science Laboratory for analysis only to fill-up such lacuna---Admittedly conduct of police indicated their being in league with the accused party showing their negligence and incompetency---Accused was acquitted, in circumstances by setting aside conviction and sentence recorded by Trial Court.

Khan Bacha v. The State PLD 2006 Kar. 698 rel.

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

----S. 9(c)---Recovery of narcotic substance---Appreciation of evidence---Narcotic in different packets---Chemical examination---Procedure---Charas in 275 packets contained one kilogram in each packet was allegedly recovered from the vehicle of accused---Police had transmitted seven parcels of contraband, out of which six parcels contained forty packets, while one parcel contained thirty five packets and each packet in the parcels weighed 1-kg---Samples were not drawn from each packet---Non-drawing of samples from each packet separately for chemical analysis clearly indicated the negligence of the Chemical Examiner, which was not in any manner advantageous for the prosecution case.

Ameer Zeb v. The State PLD 2012 SC 380 rel.

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

----S. 9(c)---Recovery of narcotic substance---Appreciation of evidence---Narcotic substance in different packets---Vehicle used in trafficking the narcotics---Prosecution failed to prove that accused was the owner of the vehicle from which alleged charas was recovered---Record showed that someone else was owner of the vehicle---Investigating Officer had failed to investigate the actual owner of the vehicle in order to substantiate the allegation that contraband was being smuggled by the accused or was being transported at the behest of the owner of the vehicle or that the vehicle was disposed of by its owner---Mere presence of the accused in the vehicle was not enough to hold him responsible for the recovered contraband as the recovery of contraband was not effected on the pointation of the accused---Prosecution had failed to prove the conscious possession of knowledge of the accused about the contraband concealed in the secret cavities of the vehicle---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by Trial Court.

Muhammad Shabir Rajpoot for Appellant.

Abdul Latif Kakar, Additional P.G. for the State.

YLR 2017 QUETTA HIGH COURT BALOCHISTAN 983 #

2017 Y L R 983

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

SHADI KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.153 of 2015, decided on 23rd November, 2016.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, act of terrorism---Appreciation of evidence---Accused was charged for committing murder of two persons---Complainant confirmed the arrival of police party at the place of occurrence and presence of accused nearby the dead bodies of deceased in armed condition---Statement of eye-witnesses was in line with the statement of complainant---All the witnesses had recorded their statement in line with each other and were not derailed from their depositions anywhere---Witnesses correctly narrated the whole story with regard to commission of crime and arrest of accused from the place of occurrence and recovery of crime weapon from his possession as well as the disclosure and confession of accused before them---Prosecution witnesses had correctly identified the accused during trial---Witnesses had correctly stated the date, time and place of occurrence---Defence failed to create any dent in the evidence of prosecution in spite of lengthy cross-examination---Facts and circumstances established the guilt of the accused, who at the time of commission of crime was found nearby the dead bodies, having pistol in his hand, confessed before police that crime was committed on the basis of liaison of his deceased sister with her paramour---Medico-legal reports of deceased/injured fully corroborated nature of injuries, weapon of offence used in the occurrence and locale of injuries sustained by the injured/deceased---Medical evidence was absolutely in line with the ocular account and as such fully supported the case of prosecution---Appeal against conviction was dismissed accordingly.

Akhter Ali v. State 2011 SCMR 937 rel.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, act of terrorism---Appreciation of evidence---Recovery of weapon of offence---Relevance---Weapon of offence was recovered soon after the occurrence, from the possession of accused who was present at the place of occurrence---Defense had not disputed the recovery of crime weapon from his possession soon after the commission of crime---Appeal against conviction was dismissed accordingly.

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, act of terrorism---Appreciation of evidence---Police officials as witnesses, competency of---Accused was charged for committing murder of two persons---In the present case, crime was committed within the boundary walls of house at about 2.00 a.m.---No chance of outsider to witness the crime directly existed---Attending circumstances suggested that it was impossible for the investigating agencies to associate any independent witness in the prosecution case---Even otherwise, police officials were competent witnesses and their testimony could not be discarded merely for the reasons that they were police officials unless or until the defence succeeded in proving dent in the statements of prosecution witnesses and established their mala fide or ill-will against the accused---Admittedly, no relationship existed between the police officials and the accused nor they knew each other before---No reason was available for the police to falsely implicate the accused in the crime---Testimony of police officials was entirely independent and truthful, thus their testimony alone was sufficient to establish the charge against the accused---Appeal against conviction was dismissed accordingly.

(d) Criminal trial---

----Witness---Police officials as witnesses---Statement of police officials were as good as the statements of private witness, unless previous grudge was proved to exist between the witnesses and culprit---Evidence of police officials could not be discarded merely on the ground that they were police officials.

2016 MLD 920; 2016 PCr.LJ 81; 2016 YLR 2173; 2011 PCr.LJ 511; 2011 PCr.LJ 221 and 2011 PCr.LJ 1342 rel.

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

----S. 164--- Confession--- Retracted confession---Validity---Retraction of an accused from his confessional statement was not enough to vitiate its evidentiary value---Conviction could be recorded on the basis of retracted confession---Court was to see that Judicial Magistrate prior to recording of confession of an accused, had fulfilled all the legal formalities and adopted all mandatory precautions.

Said Jehan alias Saidy v. The State 2014 PCr.LJ 1625 rel.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, act of terrorism---Appreciation of evidence---Delay in recording judicial confession---In the present case, confession of accused was recorded after the delay of twelve days---Mere delay in recording the confession was not enough to discard such statement, if the same was recorded voluntarily without any coercion or duress---No hard and fast rule had been laid down about the period within which such statement ought to have been recorded.

Muhammad Ismail and another v. The State 1995 SCMR 1615 and Majeed v. The State 2010 SCMR 55 rel.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, act of terrorism---Appreciation of evidence---Motive, proof of---Prosecution case was that accused committed murder on the basis of liaison of his deceased sister with her paramour---Said motive had been deposed by the accused at the time of his arrest as well as before the Judicial Magistrate while recording his confessional statement---Prosecution succeeded in establishing the motive behind the occurrence---Appeal against conviction was dismissed accordingly.

Sardar Ahmed Haleemi for Appellant.

Abdul Latif Kakar, Additional P.G. for the State.

Ghulam Mustafa Buzdar for the Complainant.

YLR 2017 QUETTA HIGH COURT BALOCHISTAN 1166 #

2017 Y L R 1166

[Balochistan (Sibi Bench)]

Before Zaheer-ud-Din Kakar, J

LARIK MAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.(s)84 of 2016, decided on 6th February, 2017.

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

----S. 13-B---Criminal Procedure Code (V of 1898), S.103---Possession of unlicensed arms---Appreciation of evidence---Benefit of doubt---Accused was arrested in the case registered under S. 302(c), P.P.C.---Accused during investigation of said case, made disclosure and in consequence of said disclosure, on his pointation, unlicensed Kalashnikov along with empty magazine was recovered from the room of residential house---Separate FIR for possessing unlicensed arms was registered against the accused---Accused objected that place of recovery was situated in a populated area but no member of public was associated to witness the recovery---Validity---Admittedly, no member of public was associated to join the said recovery in the present case, which was violation of S. 103, Cr.P.C.---Statement of the Investigating Officer showed that no efforts were made to join any member of the public to witness the recovery---Recovery of Kalashnikov, which was not effected from the actual possession of accused without joining disinterested persons in spite of availability, was highly doubtful and no reliance could be placed thereon---Circumstances established that prosecution failed to prove the case against accused beyond any reasonable doubt---Accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

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

----S. 103---Recovery---Requirement of S. 103, Cr.P.C.---Two members of the public of the locality should be mashirs to the recovery, as the same was mandatory, unless it was shown by the prosecution that in the circumstances of a particular case, it was not possible to join two mashirs from the public---If the statement of police officer had indicated that no effort was made by him to secure two mashirs from public, the recoveries would be doubtful.

State through Advocate General, Sindh v. Bashir and others PLD 1997 SC 408 rel.

Ahsan Rafiq Rana for Appellant.

Jameel Akhtar, Deputy Prosecutor General for the State.

YLR 2017 QUETTA HIGH COURT BALOCHISTAN 1270 #

2017 Y L R 1270

[Balochistan]

Before Jamal Khan Mandokhail and Zaheer-ud-Din Kakar, JJ

SABIR alias SABIR HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.12 of 2016, decided on 14th March, 2017.

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

----S. 376--- Rape--- Appreciation of evidence---Ocular account did not support medical evidence---Effect---Prosecution case was that accused had forcibly committed zina with minor daughter of the complainant---Ocular account was furnished by father of the victim but he was not an eye-witness of the occurrence and had narrated whatever he had heard---Victim supported the version of prosecution and claimed that accused had raped her---Statement of the victim was negated by the medical evidence---Medical Officer had observed that hymen was intact and found mild redness and fresh scratch mark on rectal area---Statement of Medical Officer showed that shalwar of the victim was sent for forensic report but prosecution did not produce any report from Forensic Science Laboratory---Admittedly no bleeding had occurred at the time of incident---No marks of violence were found on the body of victim---Mere redness at rectal area could be self-suffered---No penetration had taken place as the hymen of the victim was found to be completely intact---Circumstances and the facts of the case negated the entire version of the victim and the complainant as mentioned in the FIR---Accused was acquitted accordingly by setting aside conviction and sentence recorded by the Trial Court.

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

----S. 376---Rape---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused forcibly committed zina with minor daughter of the complainant---Ocular account was completely negated by the medical evidence---FIR was lodged after the delay of three days---No plausible explanation for delay in lodging FIR was furnished, thus, consultation and deliberation could not be ruled out---Prosecution witnesses had made dishonest improvements while appearing in witness box---Entire version of the victim and the complainant became doubtful in the light of medical report---Prosecution therefore, had failed to prove the case against the accused beyond any shadow of doubt---Accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

Rizwan Ali Soomor for Pauper Appellant.

Ameer Hamza Mengal, D.P.G. for the State.

YLR 2017 QUETTA HIGH COURT BALOCHISTAN 1481 #

2017 Y L R 1481

[Balochistan]

Before Jamal Khan Mandokhail and Zaheer-ud-Din Kakar, JJ

TANIA NASEER---Petitioner

Versus

MUHAMMAD ZUBAIR and 2 others---Respondents

C.P. No.931 of 2013, decided on 21st March, 2017.

Family Courts Act (XXXV of 1964)---

----S. 7 & Schd.---Dowry and Bridal Gifts (Restriction) Act (XLIII of 1976), S.2(a)---Dissolution of marriage on basis of khula---Return of bridal gifts to husband---Scope---Petitioner/Ex-wife got decree of dissolution of marriage on the basis of khula in consideration of her unpaid dower amount and contended that anything given by husband was to be considered as bridal gifts which were not liable to be recovered---Respondent (ex-husband) contended that gold ornaments, clothes and shoes given by him to the petitioner were returnable on dissolution of marriage---Validity---Section 2(a) Dowry and Bridal Gifts (Restriction) Act, 1976 defined 'Bridal gift'; 'dowry' and 'present' which showed that the articles of 'dowry', 'bridal gifts', 'presents' or all other movable property were the belongings of bride---Bridal gifts given by husband were absolute property of wife and could not be snatched from her---Under the Sharia, the marriage between a man and a woman could be dissolved on the basis of Khula, for which some consideration which was in the form of dower which the wife was entitled to receive at the time of marriage or on demand was to be forgiven---In the present case, only certain amount was mentioned in Column No. 13 of the Nikah Nama as dower money, however, there was no mention of gold ornaments therein---Consideration for marriage was dower amount which had not been paid to the wife---Petitioner (wife) had waived her dower amount in consideration of Khula which was enough---Appellate Court had failed to consider such aspect of the case which was an illegality---Marriage on the basis of Khula could be dissolved on the basis of dower mentioned in the column No. 13 of the Nikhanama---Constitutional petition was accepted accordingly.

Ghulam Rasul v. Judge, Family Court 1991 CLC 1696 and Muhammad Bashir Ali Siddiqui v. Mst. Sarwar Jahan Begum and another 2008 SCMR 186 ref.

Muhammad Aslam Jamali for Petitioner.

Shams-ud-Din Achakzai for Respondent No.1.

YLR 2017 QUETTA HIGH COURT BALOCHISTAN 1652 #

2017 Y L R 1652

[Balochistan (Sibi Bench)]

Before Nazeer Ahmad Langove, J

NIAZ ALI---Petitioner

Versus

The STATE---Respondent

Criminal Revision No.(S) 17 of 2017, decided on 25th April, 2017.

Penal Code (XLV of 1860)---

----Ss. 392 & 511---Robbery, attempt to commit offence punishable with imprisonment for life or a shorter term---Appreciation of evidence---Sentence, reduction in---Prosecution case was that accused/appellant and co-accused while armed with TT pistols tried to snatch motorcycle from complainant on gun point, but resisted by the complainant and accused/appellant was apprehended on the spot, whereas the co-accused succeeded to flee away---Ocular account was furnished by prosecution witnesses including complainant---Said witnesses recorded their statements in straightforward and confidence inspiring way and fully involved the accused as one of the culprit, apprehended on spot---No room was, therefore, left to doubt that the accused had falsely been involved---Recovery of pistol was effected in the presence of witnesses---Said witnesses were subjected to lengthy and searching cross-examination but nothing could be extracted in favour of defence---No mala fide, ill-will, previous enmity or personal grudge against the accused could be brought on record---Circumstances suggested that the offence alleged against the accused/appellant was not an attempt to commit robbery---Conviction recorded being harsh, appeal was dismissed while maintaining the conviction but sentence of imprisonment was reduced from three years to eighteen months, in circumstances.

Ali Hassan Bugti for Petitioner.

Ameer Hamza Mengal, Deputy Prosecutor General ("DPG") for the State.

YLR 2017 QUETTA HIGH COURT BALOCHISTAN 1706 #

2017 Y L R 1706

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Naeem Akhtar Afghan, JJ

WALI MUHAMMAD---Petitioner

Versus

DIRECTOR GENERAL, NATIONAL ACCOUNTABILITY BUREAU and 2 others---Respondents

Constitution Petition No.272 of 2016, decided on 19th May, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497--- National Accountability Ordinance (XVIII of 1999), S. 31-A---Corruption and corrupt practices---Bail, grant of---Rule of consistency---Prosecution case was that principal accused got registered five vehicles in favour of accused-petitioner and co-accused on the basis of fake documents of purchase in auction and assessment sheets---Said act of principal accused was violation of codal formalities and Standing Orders of the Board of Revenue---Investigation was initiated against the accused-petitioner and co-accused but they absconded---Accused-petitioner and co-accused were recommended to be tried for an offence defined as corruption and corrupt practice---Accused-petitioner and co-accused after being declared proclaimed offenders had been convicted under S.31-A of the National Accountability Ordinance, 1999 and sentenced to imprisonment for three years---Record showed that co-accused was admitted to bail by High Court and his conviction was set aside with direction to the Trial Court to frame separate charge under S. 31-A National Accountability Ordinance, 1999---While passing conviction against the accused-petitioner neither any separate charge was framed against him nor any evidence was led by prosecution to establish that he was intentionally avoiding the service of process of the court thereby committed offence under S. 31-A National Accountability Ordinance, 1999---Accused-petitioner was not convicted according to law because the pre-requisites of fair trial were not provided to him---Admittedly, co-accused was admitted to bail by High Court after setting aside his conviction in absentia, therefore, principle of equity demands that alike shall be treated alike---Regardless of the merits of the case on basis of absconsion alone, accused-petitioner could not be denied the concession of bail;, particularly when it was yet to be determined as to whether any notice was ever served upon him or the accused-petitioner intentionally evaded justice and avoided to appear before the Trial Court---Accused-petitioner was admitted to bail in view of principle of consistency.

Arbab Khan's case 2010 SCMR 755 rel.

Mujeeb Ahmed Hashmi, Khushal Khan Kasi and Saifullah Kakar for Petitioners.

Riaz Akhtar Tareen, Additional Deputy Prosecutor General National Accountability Bureau (NAB) for NAB Balochistan.

YLR 2017 QUETTA HIGH COURT BALOCHISTAN 1779 #

2017 Y L R 1779

[Balochistan (Turbat Bench)]

Before Abdullah Baloch, J

KAREEM BUKHSH alias SULEMAN---Applicant

Versus

The STATE---Respondent

Cr. Appeal No.(T) 51 of 2016, decided on 24th March, 2017.

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

----Ss. 324, 398, 353, 186 & 34---Attempt to commit qatl-i-amd, attempt to commit robbery or dacoity when armed with deadly weapon, assault or criminal force to deter public servant from discharging of his duty, obstructing public servant in discharge of public functions, common intention---Appreciation of evidence---Ocular account did not corroborate medical evidence---Allegations against accused were that he along with co-accused looted ten drums of diesel from the vehicle of prosecution witness and loaded the same in their vehicle---Complainant who was on patrolling duty along with other officials, after receiving information, had erected Naka and tried to stop the vehicle of accused persons---Accused persons made firing on police party, in self-defence, police party also made firing and chased the vehicle of accused, which overturned and fell straight---Co-accused fled away whereas the accused-appellant was arrested in injured condition---Prosecution in order to establish the charge, produced six witnesses including complainant as well as the victim---Complainant reiterated the contents of fard-e-bayan and contended that accused-appellant was arrested in injured condition---Prosecution witness deposed that after arrest of accused-appellant, he had taken him to hospital for medical treatment but no medical certificate or the doctor was produced, who had examined and medically treated the accused-appellant---Medical evidence was necessary to have been produced to corroborate the prosecution case---No explanation for non-production of medical evidence had been tendered by the Investigation Officer--- Investigating Officer stated that victim informed him about the occurrence and accused was arrested after chasing him, in injured condition---Victim identified the accused-appellant at the spot after his arrest---Victim while appearing as witness stated that he informed one of his relative about the occurrence and he had informed the police---Witness had stated that at the time of offence, accused had muffled their faces, thus he could not identify the accused-appellant present in the court---Statements of witness and victim (witness) were not only contradictory to each other but both narrated a different story, due to which, their testimony could not be termed to be worth credence---Victim/witness had not supported the prosecution version, thus he was required to be declared hostile, but this had not been done so---Circumstances established that in no way, the statements of either of the said witnesses was helpful to the case of prosecution but a serious and irreparable dent and damage had been caused to the case of prosecution, benefit of which would resolve in favour of accused---Accused-appellant was acquitted in circumstances by setting aside conviction and sentences awarded by the Trial Court.

(b) Criminal trial---

----Witness---Impartial and dis-interested witnesses--- Reliance--- Scope--- Not necessary that an impartial and independent witness, who was neither related to complainant nor inimical towards accused, always spoke true---Court was duty bound to scrutinize the statement of such witness with utmost care and caution.

Muhammad Saleem v. The State 2010 SCMR 374 rel.

----Appreciation of evidence---General rule---Statement of witness was to be in consonance with the probabilities fitting in the circumstances of the case and also confidence inspiring and appealing to reasonable prudent person---In the presence of said elements, the statement of a worst enemy of the accused could be accepted and relied upon without corroboration---When said elements were missing, the statement of a pious person could be rejected without a second thought.

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

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

Khalil Ahmed v. The State 2015 MLD 236; Khawar v. The State 2014 YLR 2120 and Iqbal Zada v. State 2014 PCr.LJ 1397 rel.

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

Obaidullah v. The State 2015 MLD 1105 rel.

(g) Criminal trial---

----Prosecution had to prove the charge against the culprits by standing on its own legs and it could not take any benefit from the weaknesses of the case of the defence.

Khalil Ahmed for Appellant.

Muhammad Rustam Baloch, Additional P.G. for the State.

YLR 2017 QUETTA HIGH COURT BALOCHISTAN 1987 #

2017 Y L R 1987

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Naeem Akhtar Afghan, JJ

ABU BAKAR SIDDIQUE---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 149 and Criminal Revision No. 29 of 2014, decided on 30th June, 2016.

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

----Ss. 302(b) & 338---Qatl-i-amd, isqat-i-hamal---Appreciation of evidence---Accused/husband of the deceased was alleged to have murdered his wife---Accused had introduced defence plea that on the relevant day, unknown persons had launched an attack upon his house, while he was asleep upstairs along with his son---At midnight he heard hue and cry on which he came downstairs and had seen that a muffled face person having something like iron clip in his hand was standing, while his wife was lying on the floor in injured condition---Accused indulged into scuffle with the said person, meanwhile his other companion appeared and both of them pushed him and fled away---Accused rushed to the guard room and asked the guards to help him out and he immediately took his wife to the doctor, told her the whole story, who after examining his wife advised him to take his wife to the hospital---Accused alleged that he told the story to the police but they refused to look into any reason, he was tortured and on account of influence of the deceased's family, the case was lodged against him---Record showed that defence plea was not supported by the facts and circumstances of the case---Suggestions in defence were denied by the prosecution witnesses in respect of dacoity at his house---Accused did not suggest his defence plea to the prosecution witnesses who were attracted to the place of occurrence on his invitation---Circumstances did not suggest that thieves during the occurrence would so severely torture the deceased by causing multiple injuries on her person as well as burning her body with cigarette---Unnatural death of the deceased was not denied---Accused could not explain as to when the deceased was being thrashed by the thieves while he was sleeping upstairs, why he did not reach the spot immediately---Two guards/ witnesses remained unaware about the dacoity---No valuable article was mentioned to have been stolen/looted---Circumstances established that a feeble attempt to build up the defence based on fabricated plot was not worthy of credence--Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b) & 338---Qatl-i-amd, isqat-i-hamal---Appreciation of evidence---Prosecution case was that on receipt of information from the hospital that an injured lady had expired---Incharge of police station reached the hospital and found the dead body of the deceased---Alongside the deceased, her husband/ accused was standing, who disclosed that deceased was his wife and due to a quarrel between them, he had assaulted her, which resulted into the injuries, whereafter she was brought to the hospital and she succumbed to the injuries---No direct ocular evidence was available against the accused---Complainant narrated the story, which corroborated the contents of FIR---Statement of complainant was not only reliable but his natural and unimpeachable deposition furnished very strong corroboration, which the accused told him in the hospital by narrating the complete scenario in which the deceased got injured---Admittedly, neither the accused nor the deceased or for that matter, her family were known to the complainant---Other aspect, which further corroborated the statement of complainant was that police official on duty reached the hospital, he was told the whole story, which was in nobody's knowledge except the accused and the deceased, but she had died at that time, therefore the account of occurrence furnished by the accused cumulated into registration of FIR---Accused was such a person in relation to the deceased and she was lastly found with the accused under the same roof---Accused was required to explain the circumstances in which the deceased lady met the unnatural death---If the failed either to plausibly explain the circumstances or to furnish the true account of the event which led to unnatural death of the deceased, would otherwise form very strong corroboration to his retracted confession---Statement of accused made immediately after the occurrence connected the accused with the commission of offence---Accused had failed to explain the circumstances, under which his wife died unnatural death in dubious and mysterious circumstances--- Multiple injuries and burn marks were noted by the doctor on the body of deceased lady---Blood had spreaded in the house---Accused failed to explain the cause of injuries at the hands of accused---Blood stained utensils and other articles were found at the place of occurrence---Accused gave extra-judicial confession soon after the occurrence--- Three contradictory statements of the accused uttered to the witnesses till registration of the FIR and his failure to rebut the circumstances in plausible manner, established that cold blooded murder of the deceased was committed by the accused---Appeal against conviction was dismissed in circumstances.

The Crown v. Abdul Ghani PLD 1956 (WP) Lah. 300; Muhammad v. The State 1994 PCr.LJ 2102; Noor Muhammad v The State PLD 1991 SC 150 and Azeem Khan v Mujahid Khan 2016 SCMR 274 rel.

----Ss. 302(b) & 338---Qatl-i-amd, isqat-i-hamal---Appreciation of evidence---Award of capital punishment as Tazir---Circumstantial evidence capital punishment award of---Scope---Prosecution case was that accused committed of murder of his wife---No direct ocular evidence was available with the prosecution---Case against the accused hung upon the circumstantial evidence and accused had contended that capital punishment could not be awarded on the basis of circumstantial evidence--- Validity---Generally, capital punishment could not be awarded to accused on the basis of circumstantial evidence---If different pieces of circumstantial evidence collected during investigation were put in juxtaposition and prima facie the case was made out against the accused, coupled with the fact that the prosecution witnesses were disinterested; chain of evidence touching the dead body from one side and to the neck of the accused on the other, then on unimpeachable circumstantial evidence, in which no link of the chain was missing, capital punishment could be awarded.

Inayatullah v. The State PLD 2007 SC 237 rel.

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

----Ss. 302(b) & 338---Qatl-i-amd, isqat-i-hamal---Appreciation of evidence---Sentence, quantum of---Extra-judicial confession of the accused showed that due to altercation between husband and wife, he got provoked and annoyed with her on account of alleged immoral activities of the wife---Accused admonished her to refrain from immoral life---When both of them indulged in quarrel, he attacked the lady, possibility of sudden provocation could not be ruled out in circumstances and it could not be said that accused committed murder with premeditated mind and intention---No one was present on the spot---Circumstances of the case were sufficient as extenuating factors for determining the quantum of sentence, therefore death sentence under S. 302(b) Penal Code, 1860 could not be awarded to the accused and only the sentence of imprisonment for life would be permissible.

Syed Ayaz Zahoor and Arthur Victor for Appellant (in Criminal Appeal No.149 of 2014).

Ali Ahmed Kurd for the Complainant (in Criminal Appeal No.149 of 2014).

Ali Ahmed Kurd for Petitioner (in Criminal Revision Petition No.29 of 2014).

Yahya Baloch, Deputy Prosecutor General for the State (in Criminal Revision Petition No.29 of 2014).

YLR 2017 QUETTA HIGH COURT BALOCHISTAN 2146 #

2017 Y L R 2146

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

ABDUL MAJEED---Petitioner

Versus

BISMILLAH and 2 others---Respondents

Criminal Revisions Nos.131 and 135 of 2016, decided on 31st March, 2017.

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

----S. 7---Penal Code (XLV of 1860), Ss.302, 147, 148 & 149---Age of accused, determination of---Accused submitted application to the Trial Court with the plea that he being juvenile would be dealt with under the Juvenile Justice System Ordinance, 2000, which was accepted---Petitioners had alleged that Trial Court had accepted the plea of accused on the basis of record of National Database Registration Authority and school leaving certificate without conducting proper inquiry---Validity---When question arose as to whether a person was a child, the court shall record a finding after such inquiry which would include a medical report for determination of the age of the child---Record showed that Trial Court did not resort to the ossification test of the accused and relied on National Database and Registration Authority record for determination of his juvenility---Entry made in the record of National Database and Registration Authority was not to be conclusive proof of the age of accused---Opinion of medical experts could offer a valuable guide in resolving the controversy in issue---Proper compliance of S. 7 to conduct inquiry, would be to call upon the parties to lead their evidence, oral or documentary in accordance with the provisions of Qanun-e-Shahadat, 1984 with the right to the other party to test the veracity or the genuineness of the same in accordance with law and then to arrive at a judicial decision in terms thereof---Circumstances established that the procedure adopted by the Trial Court was against the principles of justice and mandate of law because the question of juvenility of the offender related to the ultimate determination of quantum of sentence---Revision petition was accepted.

Ali Hassan alias Jamshaid v. The State 2012 SCMR 242; Muhammad Aslam v. The State PLD 2009 SC 777 and Sultan Ahmed v. Additional Sessions Judge-I, Mianwali PLD 2004 SC 758 rel.

S. Ghulam Mustafa v. The State PLD 2004 Pesh. 236; Muhammad Akram v. Muhammad Haleem 2002 PCr.LJ 633; Mehboob Ahmed v. The State 2002 PCr.LJ 2034 and Tauseef alias Captain v. The State PLD 2009 Lah. 535 ref.

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

----Preamble & S. 7---Scope of Juvenile Justice System Ordinance, 2000---Ordinance was promulgated in order to provide protection to the rights of children involved in criminal litigation, their rehabilitations in society, reorganization of juvenile courts, and matter connected therewith and incidental thereto.

----S. 7---Age of accused, determination of---Principles---Plea of minority by accused was a special plea---Such plea of minority must be taken by the accused at the earlier possible opportunity, preferably during the course of investigation so that the requisite evidence about the age of the accused could be properly collected during the said exercise of collection of evidence and any delayed claim on that account would meet adverse inferences---Question of age whenever was raised or arisen at the trial, the court would not deal with the same in cursory or in a slip-shod manner but must proceed to hold an inquiry in the matter as commanded by the provisions of S. 7 of the Juvenile Justice System Ordinance, 2001 including medical examination of the accused for the purpose---Such inquiry would not be understood to mean only to entertain documents from across the bar and then giving a decision thereon---Such a practice need not only be discouraged but, to be discontinued---Basing judicial decisions on unscrutinised documents was a dangerous path to tread; Medical examination of the accused person could furnish a useful guideline in the matter and should be resorted to---"Child" was not to be sent to the gallows but it was equally important that the one who deserved death must not be allowed to escape the same on the strength of "false and fabricated material"---Order accordingly.

(d) Constitution of Pakistan--

----Art. 189---Judgment of Supreme Court---Binding effect---Any decision of the Supreme Court deciding a question of law or based upon or enunciating a principle of law, was binding on all other courts in the country.

Bhooral Khan v. The State 2017 MLD 7 rel.

Muhammad Shabbir Rajput for Petitioner.

Shaukat Ali Rakhshani for Respondent No.1.

Amir Hamza Mengal, D.P.G. for Respondent/State.

YLR 2017 QUETTA HIGH COURT BALOCHISTAN 2183 #

2017 Y L R 2183

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

ABDUL ALI---Appellant

Versus

SAATH MUHAMMAD and 3 others---Respondents

Crl. Acquittal Appeal No.205 of 2013, decided on 22nd March, 2017.

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

----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S. 417(2-A)---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Prosecution case was that daughter of complainant was married with accused/respondent---Reportedly, she was facing trouble due to mis-behaviour of her in-laws, and she used to telephone her parents complaining about mis-behaviour and un-tolerable cruelty of in-laws---One unknown call was received by the complainant the dead body of his daughter was lying in the hospital---Matter was reported to the police and FIR was lodged---Complainant and other family members were not satisfied with the FIR for the reasons that the police authorities had not mentioned the names of all the accused persons, hence filed the private complaint with the allegations that respondents committed murder of the deceased---Affidavits of complainant, mother of deceased and brother of deceased were also filed---Complaint was entertained on the basis of affidavits and the trial commenced---Statements of witnesses were recorded---Record showed that said witnesses were not eye witnesses of the case and stated differently with regard to the information of death of deceased---Evidence of said witnesses transpired that there were material improvements and contradictions in their statements, which created serious doubt and dent in the case of prosecution---Witnesses named different persons, who conveyed information to the complainant party about the murder of deceased but said informers were not produced as witnesses to strengthen the case of prosecution---Statements of all the prosecution witnesses were not consistent and confidence inspiring---No direct or circumstantial evidence was available against the accused/respondents connecting them with the commission of offence---Circumstances established that there existed series of doubts in the case of prosecution, benefit of which would resolve in favour of accused/respondents---Appeal against acquittal was dismissed in circumstances.

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

----Ss.302 & 34---Qanun-e-Shahadat (10 of 1984), Art. 21---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Conduct of accused, relevancy of---Complainant had alleged that conduct of accused/ respondents was enough for proving the guilt accused/respondents were bound to prove their innocence as the dead body of the deceased had been recovered from their home and the deceased was their family member and their subsequent conduct regarding maltreatment with the dead body was a proof against them---Validity---Initially burden was upon the prosecution/complainant to discharge its liability and to prove its case beyond shadow of any reasonable doubt---If prosecution failed to establish its case, accused/respondents could not be convicted merely on the basis of a presumption that since the murder of deceased had taken place in their house, therefore, accused/respondents would have committed that murder---Appeal against acquittal was dismissed.

Abdul Majeed v. The State 2011 SCMR 941 rel.

----Ss.302 & 34---Criminal Procedure Code (V of 1898), S. 417(2-A)---Qatl-i-amd, common intention---Appeal against acquittal---Double presumption of innocence was attached to the order of acquittal---Interference in such situation was unwarranted unless the acquittal order was arbitrary, capricious, fanciful or against the record---In the present case, order of acquittal passed by the Trial Court was neither arbitrary, capricious, fanciful nor contrary to the evidence on record, warranting interference by High Court---Appeal against acquittal was dismissed accordingly.

Abdul Qahir Kakar for Appellant.

Ahmed Abbas for Respondents.

Abdul Latif Kakar, Additional P.G. for the State.

YLR 2017 QUETTA HIGH COURT BALOCHISTAN 2349 #

2017 Y L R 2349

[Balochistan]

Before Syeda Tahria Safdar and Zaheer-ud-Din Kakar, JJ

KHUDAI NOOR---Petitioner

Versus

DISTRICT JUDGE, PISHIN and 2 others---Respondents

C.P. No.85 of 2017, decided on 11th May, 2017.

Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Family Courts Rules, 1965, R. 4---Civil Procedure Code (V of 1908), O. VI, Rr. 14 & 15---Suit for dissolution of marriage, recovery of dowry articles, dower and maintenance---Allegation of cruelty---Scope---Dower amount still outstanding---Non-affixation of thumb impression or signature of the plaintiff on the plaint and affidavit---Effect---Petitioner (husband) contended that earlier arbitrator was appointed who decided that dowry articles in possession of either party would deem to be property of respective party and that the respondent (wife) had failed to prove that dower amount was outstanding---Petitioner objected that signature or thumb impression was not affixed by the respondent on the plaint and affidavit, thus her claim was liable to be dismissed---Respondent contended that two courts below had rightly passed judgment and decree in her favour---Validity---Petitioner was mainly aggrieved from the judgment and decree to the extent of dower amount, dowry articles and maintenance allowance---Question before High Court was whether respondent was entitled for dower amount, dowry articles and maintenance allowance since her departure from the house of petitioner---Held, as far as objection of the petitioner regarding maintainability of the suit with regard to non-affixation of thumb impression of the plaintiff on the plaint and affidavit was concerned, though in cross-examination respondent had admitted that she had not affixed thumb impression on the plaint and affidavit but in this regard the language of R. 4 of Family Courts Rules, 1965, requiring the signing, verification and presentation of the plaint was identical to the provisions of Rr.14 & 15 of O. VI, C.P.C.---Any omission or irregularity in the signing and verification of the pleadings, and presentation of the plaint was rectifiable at a subsequent stage---Plaint could not be rejected and a suit could not be dismissed for any of the irregularities in performing certain acts---Omission or mistake to sign the pleadings was merely an irregularity and could be cured/rectified subsequently at any stage---No dispute existed between the parties in respect of fixation of dower of Rs. 4,80,000/- at the time of marriage, because in the statement of petitioner before the Trial Court and one of his witnesses had specifically stated that Haq Meharwas fixed Rs. 4,80,000/- and also maintained the same during cross-examination, so the findings of courts below regarding dower amount were in accordance with law---Plaintiff though had failed to place on record any list or receipt of dowry articles but the petitioner during cross-examination had admitted certain dowry articles which were brought by the respondent at the time of marriage so the findings of the courts below were in accordance with law---Respondent wife had alleged cruelty and also urged that she was expelled by the defendant from his house in her own wear and since then she was residing with her parents---Two witnesses fully supported the statement of respondent, she therefore established the cruelty on the part of her husband---Cruelty was not limited to physical beating rather that could be either mental or even by conduct, so, when wife was abused, misbehaved and disrespected that was also "cruelty" and on the basis thereof she might refuse to live with her husband and was entitled to the maintenance allowance---Plea of husband that she left the house of her own was not understandable as how a wife having one child could adopt such an irresponsible behavior---Muslim wife was entitled to get maintenance as of right from her husband---Plaintiff had attained the status of wife more than a decade ago before filing the suit---Divorce effected by Khula operated as a release did not effect the liability of husband to maintain the wife during her Iddat---Even if Rukhsati had not taken place the wife was entitled to have maintenance from her husband during subsistence of marriage---No illegality or irregularity having been found by the High Court in the impugned judgments, constitutional petition was dismissed accordingly.

Shahida Parveen and another v. Sher Afzal and 2 others 2006 MLD 1752; Muhammad Anwar Khan and others v. Choudhry Riaz Ahmed and others PLD 2002 SC 491; Shafiqan Bibi v. Senior Civil Judge/Judge Family Court, Okara and another 1999 CLC 160; Iftikhar Ahmed v. Hussan Pari and others 1988 CLC 2355; M. Saqlain Zaheer v. Mst. Zaib-un-Nisa Zaheer alias Zaibi and another 1988 MLD 427 and Ms. Shamim Akhtar v. Additional District Judge, Sialkot and another 1991 CLC 1142 ref.

Amanullah Tareen for Petitioner.

Sarwar Khan Kakar for Respondents.

YLR 2017 QUETTA HIGH COURT BALOCHISTAN 2434 #

2017 Y L R 2434

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

SAADULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.140 of 2009, decided on 5th June, 2017.

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

----Ss. 302(b) & 353---Qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty---Appreciation of evidence---Ocular account corroborated by medical evidence---Prosecution case was that accused-appellant fired at deceased with pistol, who received two bullets on her person---Victim on way to hospital succumbed to the injuries---Accused-appellant, who was brother of deceased lady, was apprehended with pistol by the Police---Ocular account was furnished by the prosecution witnesses including complainant---Medical Officer, who examined the deceased had confirmed that the deceased had received two bullet injuries---Complainant during trial reiterated the contents of FIR---Prosecution witnesses fully corroborated the statement of complainant by correctly mentioning the date, time, place of occurrence and the manner in which the accused-appellant appeared at site and fired on the deceased---Statements of said witnesses had been corroborated by the other eye-witnesses, who were present at the spot---Statements of said witnesses being natural witnesses justified their presence at the time and place of occurrence as three witnesses including complainant were deputed to bring the deceased to the court in the hearing of the case---Prosecution witnesses correctly identified the accused in the court being assailant, who had committed the murder of deceased and was caught red handed along with the crime weapon---Record showed that none of the witnesses had known the accused previously and they had no ulterior motive to falsely implicate the accused in the crime---Statements of the prosecution witnesses were in-line and corroborating each other on all material counts---Said witnesses were cross-examined at considerable length, but nothing advantageous/favouring the defence had come on record---Defence had failed to give slightest damage or dent to the testimony of prosecution witnesses---Circumstances established that accused-appellant was rightly found guilty of the charge by the Trial Court---Appeal against conviction was dismissed in circumstances.

(b) Witness---

----Police official as witness---Police officials were as good witnesses as the private witnesses---Testimony of Police officials could not be discarded solely on the ground that they were police officials until or unless the defence succeeded in proving any ill-will or mala fide on the part of Police official.

----Ss. 302(b) & 353---Qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty---Appreciation of evidence---Recovery of crime weapon---Corroborative evidence---Reliance---Accused-appellant was caught red handed soon after the occurrence and Police snatched the crime weapon (pistol) from him---Two empties were recovered from the place of occurrence---Defence witnesses also confirmed the recovery of crime weapon from the possession of accused---Recovery of crime weapon would strengthen the case of prosecution.

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

----Ss. 302(b) & 353---Qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty---Appreciation of evidence---Retracted confession of accused-appellant--- Scope--- Record showed that accused-appellant recorded his confession before the Judicial Magistrate, who fulfilled the legal requirements before recording his confessional statement---Mere retraction of the accused-appellant from his confessional statement was not enough to affect its validity.

Masoom Khan Kakar for Appellant.

Muhammad Yahya Baloch, D.P.G. for the State.

Shariat Court Azad Kashmir

YLR 2017 SHARIAT COURT AZAD KASHMIR 130 #

2017 Y L R 130

[Shariat Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

MUHAMMAD AMEER---Petitioner

Versus

The STATE through Advocate General and another---Respondents

Cr. Petition No. 202 of 2016, decided on 29th June, 2016.

Criminal Procedure Code (V of 1898)---

----S.426---Penal Code (XLV of 1860), Ss. 302(c) & 109---Qatl-i-amd, abetment---Suspension of sentence pending appeal---Suspension of sentence on medical ground and old age---Scope---Matter of suspension of sentence had to be ascertained within the relevant parameters---Some strong and cogent reasons must exist for ascertaining as to whether conviction of accused would sustain or not---No doubt, it was the entire discretion of the court to suspend sentence, but such discretion had to be exercised judiciously by considering the relevant facts and circumstances of the case without entering into or commenting upon the merits of the case---Normally, in a murder case, after conviction, initial presumption was against innocence of convict; bail was not allowed to a convict by suspending his conviction and sentence, until and unless exceptional circumstances were shown to be existing for doing so and powers available to the Court, should not be exercised in a routine manner---Sentence awarded by the court should not be taken lightly or suspended in a routine, rather it was fundamental duty of the court not to suspend the same and for the purpose some very strong grounds were required---Where the Medical Officer had opined that detention of convict in jail could result in his demise, sentence could be suspended by keeping in view the poor physique of convict---Nothing had been brought on record to show that age of accused was more than 70 years---Accused, did not attach his identity card with the petition, rather a facsimile of accused's History Sheet indicated age of accused as 61 years and 50 years---No plausible proof regarding accused's recent cardiac disease had been brought on record---Suspension of sentence on the grounds of ailment and old age of accused being devoid of any force, was turned down---Order accordingly.

Ghulam Muhammad v. The State 1996 PCr.LJ 1521; Ali Jan v. The State 1999 PCr.LJ 254; Abdul Khaliq v. Jahangir and another 1999 YLR 1999; Ahmad Din and 2 others v. Muhammad Tazeem and another 2004 PCr.LJ 956 and Ch. Muhammad Raisat and another v. Muhammad Asghar and another 2010 SCR 1 ref.

Sardar Tahir Anwar Khan for Petitioner.

YLR 2017 SHARIAT COURT AZAD KASHMIR 2170 #

2017 Y L R 2170

[Shariat Court (AJ&K)]

Before Muhammad Sheraz Kayani, J

MOHAMMAD SALEEM and another---Petitioners

Versus

The STATE through Additional Advocate General---Respondent

Cr. Revision Petition No.41 of 2017, decided on 14th March, 2017.

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

----S. 497---Bail, grant of---Principles---Tentative assessment of the record was to be taken into consideration and deeper scrutiny of the evidence was neither permissible nor desirable; but the court was not expected to pass a bail granting order in vacuum or in arbitrary manner.

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

----S. 497(2)---Prohibition (Enforcement of Hadd) Act, 1985, Ss.3, 4 & 26---Possessing and trafficking intoxicant---Bail, grant of---Further inquiry---Police allegedly apprehended accused persons and 296 bottles and 60 sealed packed of alcoholic bear cans recovered from search of a truck---Accused persons were driver and conductor of said truck---Receipt of Transport company had been attached wherein it was shown that 22 cartons of Mobil oil were booked---Matter was that of further inquiry, as it was yet to be determined; whether accused persons were in knowledge that the transported material contained intoxicant and who was the real owner of transported material---Case of accused to the extent of offence under S.3 of the Prohibition (Enforcement of Hadd) Act, 1985, was matter of further inquiry---Offence under S.4 of said Act was bailable as only punishment of 2 years imprisonment had been provided in law---Even if it was presumed that accused were involved in both the offences even then their case did not come within the prohibitory clause of S.497, Cr.P.C.---Bail in such a case was a rule and its refusal was an exception---No exceptional circumstances had been brought on record against accused persons---Investigation had been completed and accused persons were no more required for investigation---Accused were previously non-convicts---Bail could not be withheld as a punishment---Accused persons were allowed bail, in circumstances.

Zulfiqar Ahmad Raja for Petitioners.

YLR 2017 SHARIAT COURT AZAD KASHMIR 2333 #

2017 Y L R 2333

[Shariat Court (AJ&K)]

Before Muhammad Sheraz Kiani, J

ISHTIAQ AHMED---Petitioner

Versus

The STATE through Additional Advocate General and another---Respondents

Revision Petition No.177 of 2016, decided on 16th March, 2017.

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

----S. 497---Bail---Points to be considered---Matter pertaining to bail was to be decided in the light of the material collected by Police during investigation of the case---Credibility, scrutiny and truthfulness of the witnesses were to be adjudged by the Trial Court at the time of the appreciation of evidence after the conclusion of trial---Court while deciding bail application, had to look into the FIR, the statement recorded under S.161, Cr.P.C., and other incriminating material brought by the prosecution including the recoveries etc.---Deeper appreciation of evidence was neither permissible nor desirable---Tentative view of the material placed before the court would become necessary because no order could be passed in vacuum.

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

----Ss. 497, 87 & 88---Bail, refusal of---Absconsion of accused---Bail could not be refused only on the ground of absconsion; it was yet to be decided while keeping in view the facts, circumstances and merits of the case---Absconder, though would lose some normal rights of bail, but over all circumstances had to be seen while deciding bail matter---Police and Trial Court was to take the steps mentioned in Ss.87, 88, Cr.P.C., to procure the attendance of accused and complete proceedings---If accused would become fugitive from law, it was obligatory on the Trial Court to initiate the proceedings under Ss.87, 88, Cr.P.C.; unless said action was taken, accused could not be declared an absconder---Bail of accused, could not be refused merely on the ground of absconsion, particularly when the process provided in the Criminal Procedure Code, 1898 for absconder had not been completed.

Fazal-e-Rabi v. State and another 2008 SCR 495; Muhammad Fazal's case 2007 SCR 517; 1994 PCr.LJ 1335 and 1997 MLD 1609 ref.

----S. 497---Bail---Plea of alibi---Scope---Plea of bail or any defence plea along with its supporting material, could be taken into account at bail stage---When it was found that plea of alibi raised by accused and evidence produced by prosecution did not lead to the inference of guilt against accused, accused would become entitled to bail his case being that of further inquiry---No flexible rule, could be laid down that plea of alibi could not be considered at all, at bail stage---Such plea in every case was to be considered in the context of its own facts---Special care was to be taken when the plea of alibi was pressed into service at bail stage---Only way to deal with the plea of alibi at bail stage, was to examine broad outlines of the plea and then to draw an inference as to whether benefit be extended to accused---If on the basis of such assessment plea appeared to be reasonable, accused, would become entitled to grant of bail as a matter of right.

1997 PCr.LJ 881; 1992 MLD 1607; PLD 1990 Pesh. 118; 1990 PCr.LJ 1186; 1979 SCMR 100; 1985 PCr.LJ 3012; 1997 MLD 1615 and 1985 PCr.LJ 488 rel.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 34 & 109---Qatl-i-amd, common intention, abetment---Bail, grant of---Further inquiry---Case of accused fell within the ambit of further inquiry under subsection (2) of S.497, Cr.P.C.---Accused would become entitled for concession of bail on ground of further inquiry when the evidence of two eye-witnesses had been withheld by the prosecution and third one, who got recorded his statement, had not levelled any allegation against accused.

1994 PCr.LJ 1335; 1997 MLD 1609; 2003 YLR 1658; 2004 SCR 359; 2008 SCR 495; 2007 SCR 517; 2008 SCR 632; 2009 PCr.LJ 1095; 2011 SCR 82; 1986 PCr.LJ 1449; 1983 PCr.LJ 502; 1996 SD 795; 1998 MLD 1170; 2000 MLD 1718; 2004 PCr.LJ 964; 2016 PCr.LJ 1793; 2016 PCr.LJ 1737 and 2017 SCMR 325 ref.

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

----S. 497(2)---Bail grant of---Further inquiry---Benefit of doubt---When reasonable grounds, would not exist to believe that accused was connected with the offence, accused would become entitled for concession of bail---Benefit of doubt could be extended to accused, even at bail stage---Bail could not be withheld as punishment on mere allegation or suspicion to connect a person to an offence---When no further evidence was required to be called on and on the basis of available material, his involvement and complicity could be proved, such would be reasonable grounds to believe that accused had committed the offence---If any further evidence was required or on the face of material which created serious doubt regarding his involvement, such would be a case of further inquiry---Law was not to be stretched in favour of the prosecution---Any evidence, if withheld by the prosecution, presumption would be against the prosecution; any witness of the prosecution when would deny its story, also would bring the case within the purview of subsection (2) of S.497, Cr.P.C.

PLD 1988 SC (AJ&K) 14 rel.

Muhammad Younas Tahir for Petitioner.

Rafiullah Sultani for the Complainant.

YLR 2017 SHARIAT COURT AZAD KASHMIR 2466 #

2017 Y L R 2466

[Shariat Court (AJ&K)]

Before Sadaqat Hussain Raja, J

KHIZAR BADSHAH---Appellant

Versus

Mst. TAYYABA FATIMA and 3 others---Respondents

Appeal No.95 of 2016, decided on 23rd May, 2017.

Azad Jammu and Kashmir Family Courts Procedure Rules, 1998---

----R. 13---Azad Jammu and Kashmir Family Courts Act (XI of 1993), S. 5, Sched---Suit for recovery of maintenance allowance--- Service of applicant/ defendant--- Scope--- Ex-parte decree, setting aside of---Limitation---Applicant moved application for setting aside of ex-parte decree which was dismissed being time-barred---Validity---Trial Court neither framed issues nor provided the parties an opportunity to lead evidence in support of their claim and rejected the application in summary manner---Applicant-husband was living abroad and rarely came back to Pakistan---Newspaper in which proclamation was published was not of wide circulation---Applicant was not properly served in circumstances--- Provisions of Civil Procedure Code, 1908 were not applicable in proceedings before the Family Court but general principles of said Code could be applied---Rejection of application for setting aside of ex-parte decree was not justified without framing of issues and providing the parties an opportunity to lead evidence in support of their claim---Ex-parte judgment and decree were set aside in circumstances---Suit would be deemed to be pending before the Family Court---Trial Court was directed to decide the controversy after providing the parties an opportunity to lead evidence in accordance with law---Appeal was allowed in circumstances.

Mst. Nasreen v. Additional District Judge with power of Guardian Judge, Alipur and others PLD 2007 Lah. 576; PLD 2004 SC 154 and 2013 SCR 1119 rel.

Raja Parvez Khan for Appellant.

YLR 2017 SHARIAT COURT AZAD KASHMIR 2481 #

2017 Y L R 2481

[Shariat Court (AJ&K)]

2017 Y L R 327

[Supreme Court (AJ&K)]

Before Mohammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

Civil Appeal No.24 of 2013

MANZOOR HUSSAIN---Appellant

Versus

FEROZ KHAN and another---Respondents

Civil Appeal No.34 of 2014

FEROZ KHAN---Appellant

Versus

MANZOOR HUSSAIN and another---Respondents

Civil Appeals Nos. 24 of 2013 and 34 of 2014, decided on 29th April, 2016.

(On appeal from the Judgment of the High Court dated 12.02.2013 in Civil Appeal No.134 of 2005).

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

----Ss. 4 & 6---Azad Jammu and Kashmir Shariat Court Act (IX of 1993), S. 6---Suit for right of prior purchase---Pre-empted property being urban---Effect---Suit was dismissed on the ground that pre-empted property being urban was exempted from the operation of right of prior purchase---Validity---Judgment of Shariat Court declaring S. 6 of Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK) against the injunctions of Holy Quran and Sunnah would take effect on 05-10-1999 i.e. the date specified in the same and not retrospectively---Provision of S.6 of Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK) had ceased to have its effect---Discretionary power of Government to exempt the property from operation of right of pre-emption in town area had become ineffective w.e.f. 05-10-1999---Sale deed, in the present case, had been executed on 06-08-2003---Pre-emption suit with regard to sale of such property filed after 05-10-1999 was maintainable---Plaintiff could not be non-suited on the ground of exemption of property from the right of prior purchase---Factual issue with regard to right of prior purchase being a co-sharer had already been resolved in favour of plaintiff---Impugned judgments passed by the courts below were set aside by the Supreme Court and suit was decreed---Plaintiff was directed to deposit sale price of suit property along with expenditures incurred on the same---Vendee would hand over the possession of suit land to the plaintiff on depositing of decretal amount and if plaintiff failed to deposit the said amount within stipulated period then suit would be deemed dismissed---Appeal was allowed in circumstances.

Government of N.W.F.P through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360; Hafiz Hasan Muhammad and 2 others v. Abdul Hameed and 2 others PLD 1982 SC 159; Faqir Ali v. Standard Bank Ltd. Muzaffarabad PLD 1979 SC (AJ&K) 62 and Azad Govt. of the State of Jammu and Kashmir and others v. Kashmir Timber Corporation PLD 1979 SC (AJ&K) 139 ref.

Pakistan v. General Public PLD 1988 SC 645; Muhammad Iqbal and others v. Ghaunsullah Khan and others 2002 CLC 1533; Salah-ud-Din Qureshi v. Federal Land Commissioner and others 1992 CLC 2362 and Federation of Pakistan v. N.W.F.P. Government and others PLD 1990 SC 1172 rel.

Haji Ch. Muhammad Anwar for Appellant (in Civil Appeal No.24 of 2013).

Raja Saadat Ali Kiani for Respondents (in Civil Appeal No.24 of 2013).

Raja Saadat Ali Kiani for Appellant (in Civil Appeal No.34 of 2014).

Haji Ch. Muhammad Anwar for Respondents (in Civil Appeal No.34 of 2014).

YLR 2017 SUPREME COURT AZAD KASHMIR 445 #

2017 Y L R 445

[Supreme Court (AJ&K)]

Before Mohammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

WAPDA through Legal Advisor WAPDA---Appellant

Versus

ANSER MEHMOOD and others---Respondents

Civil Appeal No.126 of 2015, decided on 27th April, 2016.

(On appeal from the judgment of the High Court dated 24.04.2015 in Civil Appeal No.39 of 2008)

Land Acquisition Act (I of 1894)---

----S. 18--- Reference to court---Enhancement of compensation---High Court enhanced compensation amount from Rs.6,25,000/- per Kanal to Rs. 23,98,000/- per Kanal along with 15% compulsory acquisition charges---Validity---Every case had to be decided according to its own record---High Court had not made proper appreciation of evidence produced in record---Average price according to sale deeds referred and relied upon by the land owner would come to Rs.22,01,582/- per kanal---Value of suit land according to valuation table was fixed as Rs.22,00,000/- per kanal---Market value of the land had been proved as Rs.22,00,000/- per kanal---Compensation amount enhansed by the High Court as Rs.23,98,000/- was modified and reduced to Rs.22,00,000/- per kanal.

Sabir Hussain v. Collector Land Acquisition and others 2015 SCR 608; Malik Muhammad Yousaf and others v. Azad Govt. and others 2015 SCR 712 and WAPDA v. Sardar Asif and another 2013 SCR 673 ref.

Ch. Liaquat Afzal for Appellant.

Muhammad Siddique Chaudhary for Respondent No.1.

YLR 2017 SUPREME COURT AZAD KASHMIR 569 #

2017 Y L R 569

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary and 5 others---Appellants

Versus

GHULAM NABI SHAH---Respondent

Civil Appeal No.144 of 2014, decided on 30th June, 2015.

(On appeal from the judgment of the High Court dated 28.2.2014 in Writ Petition No.182 of 2005)

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

----S. 3---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Writ petition---Evacuee property---Acquisition of land---Scope---Evacuee land was allotted to the petitioner which was acquired by the government without payment of any compensation---Petitioner filed writ petition that land allotted to him was not acquired as per law---High Court directed the government to acquire the land according to law---Validity---Land which was reserved for religious purposes did not fall within the definition of "evacuee property" as religions and ideologies were boundaryless---Suit property was neither evacuee land available for allotment to any person nor it could be used for any other purpose---Land in question was permanently dedicated for temple---Government was directed not to utilize the evacuee property for any other purpose and same be kept vacant as dedicated for religious purpose---Custodian of Evacuee Property was creature of statutory law prescribing its powers and duties---Custodian of Evacuee Property could exercise the powers vested in him under the law---Order of Custodian of Evacuee Property with regard to allotment of evacuee property being without jurisdiction and against law was declared void and was recalled---Appeal was disposed of accordingly.

Rehmatullah Khan and 3 others v. Azad Government and 13 others 2014 SCR 1385 and Holy Qur'an and Sannah of the Holy Prophet (P.B.U.H) rel.

Muzaffar Hussain Mughal for Appellants.

Raja Amjad Ali Khan for Respondent.

YLR 2017 SUPREME COURT AZAD KASHMIR 677 #

2017 Y L R 677

[Supreme Court (AJ&K)]

Before Mohammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

MUSHTAQ AHMED---Appellant

Versus

Mst. RAKHMAT JAN and 6 others---Respondents

Civil Appeal No.33 of 2014, decided on 27th June, 2016.

(On appeal from the judgment of the High Court dated 25.04.2014 in Civil Appeal No.15 of 2013)

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

----S.12---Limitation Act (IX of 1908), Art. 113 [As amended by Azad Jammu and Kashmir Limitation (Amendment) Act (X of 1992)]---Suit for specific performance of contract---Limitation---Suit was dismissed being time barred---Validity---Date for performance of agreement to sell had been fixed as 1st July, 2002---Limitation for filing of suit would start from 1st July, 2002---Plaintiff was entitled to file suit within 6 years from 1st July, 2002 which expired on 3rd July, 2008---Present suit was filed on 16th July, 2010---No illegality was pointed out in the judgment and decree passed by the High Court---Appeal was dismissed in circumstances.

Custodian of Enemy Property, Islamabad v. Hoshang M. Dastur and 6 others PLD 1977 Kar. 377; Dewan Ali Khan v. Jehandad Khan and others 1995 CLC 136 and Amanat Ali v. Mst. Sardar Bibi and 2 others 2003 MLD 299 ref.

Mumtaz Hussain Khan and 5 others v. Muhammad Hussain and 3 others 2001 CLC 946 rel.

(b) Administration of justice---

----Court had power to grant moulded relief.

Sardar Nazar Muhammad Khan for Appellant.

Sardar Shamshad Hussain Khan for Respondents.

YLR 2017 SUPREME COURT AZAD KASHMIR 746 #

2017 Y L R 746

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

SHAHID SHARIF and 22 others---Appellants

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT, through Chief Secretary and 12 others---Respondents

Civil Appeal No.36 of 2015, decided on 16th March, 2015.

(On appeal from the judgment of the High Court dated 17.10.2014 in Writ Petition No.23 of 2013).

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

----S. 52-A---Azad Jammu and Kashmir Land Acquisition Rules, 1994, R. 14---Land acquisition---Utilization of acquired land for another purpose---Effect---Land acquired for establishment of Sericulture Department was transferred to Health Department and Army Public School---High Court dismissed petition of land owners against transfer of land for some other purpose---Validity---Due process for transfer of acquired land had not been adopted by the authorities---Property acquired for public purpose would vest in the President of Azad Jammu and Kashmir and same could not be transferred without following the prescribed legal manner and mode---Process adopted for transfer of acquired land was not in accordance with law and same could not be given the legal cover---If land acquired for public purpose was utilized accordingly and some of land remained unutilized then same could be used for any other public purpose---Such public purpose should be reflected from an approved scheme of the government---If acquired land wholly or portion of it thereof remained unutilized then same should be reverted back to its original owner in due process of law---Government property could only be transferred by the Government in the manner regulated by law---Whole process of transfer of land in question had been conducted while bypassing the relevant provisions of law---Supreme Court observed that court being custodian of Constitution should look into such like illegalities---Transfer of acquired land was declared to be illegal having been made without lawful authority---If government desired to transfer the acquired land to Army Public School then at first it should be determined whether the land which was acquired for Sericulture Department was no more required for said department and whether the said land could be transferred to Army Public School, if so then Government might proceed with the matter in accordance with law---Judgment passed by the High Court was set aside---Appeal was accepted in circumstances.

Azad Jammu and Kashmir Government and 4 others v. Mohi-ud-Din Islamic University and 2 others 2014 SCR 382; Rehmat Ullah Khan and 3 others v. Azad Government and 13 others 2014 SCR 1385 and Ghulam Rasool and another v. Said Ahmed and others 2012 CLC 1655 rel.

Sardar Karam Dad Khan Advocate for Appellants.

Ch. Shaukat Aziz Additional Advocate General for Respondents.

YLR 2017 SUPREME COURT AZAD KASHMIR 786 #

2017 Y L R 786

[Supreme Court (AJ&K)]

Before Mohammad Azam Khan, C.J. and Masood Ahmed Sheikh, J

WAPDA PAKISTAN through General Manager---Appellant

Versus

NAIK MUHAMMAD and 3 others---Respondents

Civil Appeals Nos.293 and 302 of 2014, decided on 24th August, 2015.

(On appeal from the judgment of the High Court dated 11.9.2014 in Civil Appeals Nos. 24 and 25 of 2010).

Land Acquisition Act (I of 1894)---

----Ss. 18, 23, 24, 6, 9 & 25---Reference to court--- Compensation--- Factors to be considered for determination of compensation---Referee Judge enhanced compensation amount from Rs. 1,35,000/- to Rs. 3,35,000/- along with 15% compulsory acquisition charges---Validity---Collector Land Acquisition was to take into consideration the damage affecting the property movable or immovable or earning while determining the compensation amount---If in consequence of the acquisition of land the person interested was compelled to change his residence or place of business then reasonable expenses incidental to such change should also be taken into consideration---Court was not to take into consideration any damage which was likely to be caused to the land acquired after the publication of declaration---Compensation amount, in the present case, had been enhanced up to Rs. 3,35,000/- without considering the claim of the landowner in his application before the Reference Judge---Landowner had claimed only Rs. 2,50,000/- as compensation---Order for enhancement of compensation was not justified---Increased amount could not be allowed to the landowner---Landowner was only entitled for compensation amount to the tune of Rs. 2,50,000/- along with 15% compulsory acquisition charges---Impugned judgment was modified by the Supreme Court to that extent---Appeal was disposed of accordingly.

Azad Government of the State of Jammu and Kashmir and 2 others v. Muhammad Rafique Khan and 9 others 2009 CLC 1378; Muhammad Sharif and 7 others v. Azad Government and another 1998 CLC 2052 and Azad Government v. Muhammad Mirza Khan and 9 others 2009 SCR 479 rel.

Ch. Shabir Ahmed, Advocate for Appellant (in Civil Appeal No.293 of 2014).

Muhammad Yaqoob Khan Mughal, Advocate for Respondents (in Civil Appeal No.293 of 2014).

Muhammad Yaqoob Khan Mughal, Advocate for Appellant (in Civil Appeal No.302 of 2014).

Ch. Shabir Ahmed, Advocate for Respondents (in Civil Appeal No.302 of 2014).

YLR 2017 SUPREME COURT AZAD KASHMIR 925 #

2017 Y L R 925

[Supreme Court (AJ&K)]

Present: Raja Saeed Akram Khan and Masood Ahmed Sheikh, JJ

Mst. ZOHRA BIBI and 3 others---Appellants

Versus

ASHIQ HUSSAIN and 2 others---Respondents

Civil Appeal No.157 of 2014, decided on 4th August, 2015.

(On appeal from the judgment and decree of the High Court dated 11.3.2014 in Civil Appeal No.40 of 2007)

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

----Ss. 42, 12 & 39---Civil Procedure Code (V of 1908), O. II, R. 2---Suit for declaration, specific performance and cancellation of document---Non-making of prayer for possession in the plaint---Effect---Condition for praying consequential or further relief in the plaint---Scope---Contention of plaintiff was that he was owner in possession of suit land and gift deed was liable to be cancelled---Suit was dismissed to the extent of declaration but decreed to the extent of cancellation of gift deed and specific performance of agreement to sell---Validity---Condition of praying for further or consequential relief in the plaint which was required to be prayed under S.42 of Specific Relief Act, 1877 had not been imposed under S.39 of the said Act---Suit for cancellation of deed or instrument was filed under S.39 of Specific Relief Act, 1877 which conferred a right of being independent of the provisions of S.42 of the said Act---Plaintiff was not bound to pray for possession in his suit along with prayer for cancellation of gift deed under S.39 of Specific Relief Act, 1877 purported to be made to defeat his right---Plaintiff had competently filed suit for cancellation of gift deed and specific performance of contract as consequential relief---If a contract of sale had been executed between the parties then it would be incumbent upon the plaintiff to claim the possession of suit property as well---Plaintiff had filed suit just for enforcement of agreement to sell after cancellation of gift deed and prayer for possession was not necessary---Relief of possession might also be prayed by the plaintiff in his suit but asking for such relief was not at all necessary as the same would spring out of contract of sale---When such a suit was decreed then plaintiff in his execution of sale deed would also be entitled to get possession of suit property without further filing of suit---Plaintiff might claim possession of suit property in the execution petition or to file another independent suit for possession after execution of contract into sale deed---Prayer for possession in a suit for specific performance was not necessary---Delivery of possession in the present case was incidental to the relief of which plaintiff was entitled for decree of specific performance having arisen out of a contract for sale---Contract for sale would include not only the execution of necessary documents but also putting the vendee for possession of suit property---Bar under O. II, R. 2, C.P.C. would not be attracted if plaintiff opted to file subsequent suit for possession based on the sale deed executed in pursuance of decree for specific performance of contract in the first suit---Present suit for cancellation of gift deed and for specific performance of contract was competent without asking for further relief of possession---Plaintiff had proved his case by leading oral as well as documentary evidence---Defendant was bound to prove that agreement to sell was forged and fraudulent document---Defendant had failed to prove that transfer of suit property in favour of his mother was with good faith and bona fide intention---Agreement to sell did not create any title and Trial Court had rightly dismissed the suit to the extent of declaration of ownership of the plaintiff---Appeal was dismissed in circumstances.

Muhammad Riaz v. Muhammad Riyasat and 8 others 2008 SCR 308; Manzoor Hussain v. Muhammad Fazal and 8 others 2002 CLC 1165; Muhammad Najeeb v. Muhammad Javed and 4 others 2013 SCR 172; Said Muhammad Khan v. Muhammad Yousaf and 2 others 2007 SCR 235; Rana Ishtiaq Ahmed v. M.H. Industries (Pvt.) Ltd., Faisalabad through Chief Executive 2005 CLC 955; Dilnawaz Begum and another v. Muhammad Akbar Khan Afridi and 4 others 2013 SCR 1184; Rashid Ahmed Barry through legal Heirs and 7 others v. Muhammad Iqbal and another PLD 2009 Kar. 382 and Rashid Naseem through Attorney v. Mrs. Amnia Fahim and another PLD 2009 Kar. 390 ref.

Khadim Hussan and 2 others v. Waris Ali and another 2005 CLC 1144; Arjun Singh v. Sahu Maharaj Narain AIR 1950 Allahabad 415; Nur Muhammad v. Mst. Karim Bibi PLD 1959 (W.P.) Lah. 932; Wali Muhammad and others v. Zaib-un-Nisa 2001 MLD 1705; Birgis Jahan Bajiga Malik v. Muhammad Hasan and others PLD 1964 Dacca 202 and Momtazul Karim and others v. Abu Hussain and another 1970 SCMR 816 rel.

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

----S. 42---Suit for declaration---Requirements---Proviso to S.42 of Specific Relief Act, 1877 imposed an embargo on grant of mere a decree for declaration if plaintiff failed to pray for consequential relief in his plaint which he was otherwise able to pray for---Declaration prayed for must relate to legal character, title or right as to any property and if plaintiff prayed for mere declaration in his plaint but did not opt to pray for consequential relief the one which he was able to pray for the prayed declaration could not be granted and his suit must fail.

Raja Imtiaz Ahmed and Mirza Zaidullah Khan, Advocates for Appellants.

Bostan Chaudhry, Advocate for Respondent No.1.

YLR 2017 SUPREME COURT AZAD KASHMIR 973 #

2017 Y L R 973

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

MISRI KHAN and 48 others---Appellants

Versus

GULL MUHAMMAD KHAN and 51 others---Respondents

Civil Appeal No.24 of 2011, decided on 29th April, 2013.

(On appeal from the judgment and decree of the High Court dated 21.11.2009 in Civil Appeal No.170 of 2005)

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

----S. 42---Suit for declaration---Limitation--- Compromise decree, revocation of--- Fraud--- Effect---Compromise decree was set aside by the courts below---Contention of defendants was that suit was time barred---Validity---Defendants had failed to substantiate their case that land in question remained in their ownership---Person who never remained the owner of suit land could not enter into compromise with other person---Entries made on the basis of compromise decree were fictitious in nature---Compromise decree as well as proceedings of the Court were completed within one day---Compromise decree was nullity in the eye of law as same was based on the document which had no authenticity in law---Question of limitation did not arise as compromise decree was obtained by committing fraud---If any transaction was made through fraud, same had no foundation to stand---Concurrent findings could only be interfered with if there was mis-reading or non-reading of evidence---No mis-reading or non-reading of evidence had been pointed out in the present case---No illegality or infirmity had been pointed out in the impugned judgment and decree passed by the courts below---Appeal was dismissed in circumstances.

Mst. Bibi Jan v. Qutab Din and 3 others 2003 SCR 28 rel.

(b) Fraud---

----Fraud would vitiate the most solemn proceedings.

Sardar Muhammad Suleman Khan for Appellants.

Sardar Shamshad Hussain Khan for Respondents.

YLR 2017 SUPREME COURT AZAD KASHMIR 1238 #

2017 Y L R 1238

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

MUHAMMAD YOUNUS---Appellant

Versus

ZAMEER HUSSAIN SHAH and 2 others---Respondents

Criminal Appeal No.05 of 2014, decided on 12th December, 2014.

(On appeal from the order of the Shariat Court dated 31.01.2014 in Criminal Revision No.326 of 2013)

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

----S.497---Bail---Points to be considered---While dealing with the bail matters, the court had to confine itself to examine the material i.e. the statements recorded under S.161, Cr.P.C., allegation levelled in the FIR and the medical evidence---Deeper appreciation of evidence was not warranted under law.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302, 147 & 149---Qatl-i-amd, rioting, common object---Bail, cancellation of---Principles---Trial Court had dismissed application for grant of bail, but Shariat Court accepted revision petition against dismissal order and released accused on bail---Validity---All prosecution witnesses, while recording their statements under S.161, Cr.P.C., remained consistent on the point that accused person caught hold the deceased and that cause of death of the deceased was head injury---Trial was in progress and statements of some witnesses had also been recorded---Prima facie, prosecution witnesses made the statements in line with the allegations levelled and statements recorded under S.161, Cr.P.C.---Prosecution witnesses had fully supported the version of the prosecution---Role attributed to accused persons, could be termed as "an active role in the commission of murder of the deceased" which clearly amounted to facilitating the commission of offence---Reasonable grounds existed for believing that accused persons had been guilty of offence punishable with death or imprisonment for life or imprisonment for 10 years---Provisions of S.497(1), Cr.P.C., were attracted in the case, which imposed embargo to release accused on bail---Benefit of S.497(2), Cr.P.C., could not be given when there was no ambiguity in the role attributed to accused---Accused persons had actively participated in the occurrence in furtherance of their common intention---Principle for grant of bail and cancellation of bail were quite different and for cancellation of bail there must be some overwhelming and extraordinary circumstances, but, in the present case circumstance as floated on the surface of the record, led to believe that accused persons, had facilitated main accused in commission of offence of murder---If the court would come to the conclusion that the courts below had exercised the discretion in an arbitrary manner and in derogation of norms of justice, then the commencement of the trial, could not be allowed to be a hurdle in cancellation of bail---Reasonable grounds existed to believe that accused persons, had committed a non-bailable offence, punishable with death or imprisonment for life or imprisonment for ten years---Bail granted to accused persons by the Shariat Court, was recalled by the Supreme Court---Accused persons, were directed to be taken into custody and remanded to jail for facing trial.

Shoukat v. The State 2010 MLD 1137; Hakim Ali v. The State 1991 SCMR 412; Nazir Shehzad and another v. The State 2009 SCMR 1440; Muhammad Ashiq v. State 1998 PCr.LJ 996, Hussain Ahmed v. The State 2004 PCr.LJ 669; Soofan alias Tahir v. The State 2009 PCr.LJ 540; Muhammad Naeem v. The State 2005 YLR 3182; Irfan Khan v. The State 2009 MLD 120; Abdul Naeem v. The State 2005 MLD 428 and Abdul Hameed v. The State PLD 1997 Lah. 164 ref.

Ishtiaq v. The State and another 2011 SCR 78; Inayat Khan v. Zahid and 2 others 2011 YLR 761; Muzzamil Hussain v. Allah Nawaz and another 2011 PCr.LJ 1352; Muhammad Bashir v. The State and 6 others 2011 PCr.LJ 1510 and Director FBR, Intelligence and Investigation Directorate, Lahore v. Akhtar Zaman Khan and others 2011 SCMR 1951 distinguished.

----S. 497(1)(2)---Bail---Further inquiry---Scope---Section 497(1)(2) Cr.P.C.---Scope of application---Provided that, if it would appear to an officer or court at any stage of the investigation, inquiry or trial, as the case may be, that there were no reasonable grounds for believing that accused had committed non-bailable offence, but there were sufficient grounds for further inquiry into his guilt; accused, would, pending such inquiry, be released on bail; or at the discretion of such Officer or court, on the execution by him of a bond without sureties for his appearance---Provision of S.497(2), Cr.P.C., was not meant to be applied, where there were reasonable grounds for believing, that, an accused had committed a non-bailable offence---Application of subsection (2) of S.497, Cr.P.C., was not to make the provisions contained in subsection (1) of S.497, Cr.P.C., redundant, nugatory and inoperative---Subsection (1) of S.497, Cr.P.C., specifically provided that when any accused of any non-bailable offence, was arrested, or detained without warrant by an Officer Incharge of Police Station; or appeared or was brought before a court, he could be released on bail, but he would not be so released, if there appeared reasonable grounds for believing that he had been guilty of an offence punishable with death or imprisonment for life, or imprisonment for 10 years---No court was empowered to release an accused on bail on the ground of further inquiry without first coming to the conclusion that there were no reasonable grounds for believing that accused had not committed non-bailable offence---Mere possibility of further inquiry which always would exist almost in every criminal case, could not be made a ground for treating the matter as one falling under S.497(2), Cr.P.C.

Asjad Mahmood and another v. The State and another 2014 SCR 173; Wazir v. Ghulam Mustafa and 2 others 2003 YLR 1884; Ameer Qabal v. The State and another 2014 YLR 1771 and Mst. Parveen Akhtar v. The State and others 2002 SCMR 1886 rel.

Tahir Aziz Khan, Advocate for Appellant.

Raja Muhammad Atif Khan, Advocate for Respondents.

M.R. Khan, Additional Advocate-General for the State.

YLR 2017 SUPREME COURT AZAD KASHMIR 1258 #

2017 Y L R 1258

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

MUHAMMAD ISHAQ KHAN and 5 others---Appellants

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 7 others---Respondents

Civil Appeal No.79 of 2012, decided on 16th March, 2013.

(On appeal from the judgment of the High Court, dated 29.2.2012 in Writ Petition No.187 of 2010)

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

----Ss. 4 & 18---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44--- Writ petition--- Maintainability---Alternate remedy---Land acquisition---Compensation, determination of---Scope---Contention of petitioner was that compensation of shops was not assessed while issuing the award---High Court dismissed the writ petition on the ground that alternate remedy of reference was available---Validity---Whether shops were constructed prior to the issuance of notification under S. 4 of Land Acquisition Act, 1894 or after issuance of the said notification was a disputed question of fact---Disputed question of fact which needed inquiry could not be resolved in writ jurisdiction---Where alternate remedy was also efficacious then writ petition was not maintainable---Land owners challenged the award on the ground that compensation for the shops had not been paid to them---Compensation could be claimed by the interested persons under S. 18 of Land Acquisition Act, 1894---Reference could be filed for determination of Court with regard to measurement of land; amount of compensation; person to whom it was payable or apportionment of the compensation amongst the persons interested---Question raised before the High Court was with regard to non-payment of compensation of the shops built over the land acquired---Petitioners could successfully challenge the award under S. 18 of Land Acquisition Act, 1894 for payment of compensation---High Court had correctly dismissed the writ petition---Petitioners would be at liberty to move the authorities for conducting inquiry into the matter whether shops were constructed in the land prior to the issuance of notification under S.4 of Land Acquisition Act, 1894 and if proved then compensation be paid to them accordingly---Appeal was dismissed in circumstances.

Zaffar Umar Khan and another v. Agricultural Development Bank and 5 others 1996 SCR 321 and Nusrat Bibi v. SHO and another 2011 MLD 223 rel.

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

----S. 44---Writ jurisdiction of High Court---Scope---Disputed question of facts could not be resolved in writ jurisdiction.

Raja Muhammad Hayat Khan v. Board of Revenue AJ&K and 3 others 1999 YLR 147; Ch. Arshad Hussain v. Rukhsar Ahmed and others 2006 SCR 85 and Muhammad Mahmood Bawani v. Deputy Controller Building Zone-B and others 2007 SCMR 1209 rel.

----S.44---Writ petition---Maintainability---Alternate remedy---Alternate remedy was not always a ground for refusal of writ---Where alternate remedy was not efficacious one, writ petition was maintainable.

Sadaqat Hussain Raja, Advocate for Appellants.

Farooq Hussain Kashmiri, Advocate for Respondents.

YLR 2017 SUPREME COURT AZAD KASHMIR 1492 #

2017 Y L R 1492

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

MAQSOOD KAUSAR---Appellant

Versus

REVENUE DEPARTMENT through Collector and 91 others---Respondents

Civil Appeal No.31 of 2014, decided on 22nd April, 2015.

(On appeal from the judgment and decree of the High Court dated 29.03.2013 in Civil Appeal No.198 of 2007)

Specific Relief Act (I of 1877)---

----Ss. 42 & 8---Land Revenue Act (XVII of 1967), Ss.172 & 53---Suit for declaration and possession---Main-tainability---Correction of entries in the revenue record---Suit was dismissed on the ground that Civil Court had no jurisdiction under S. 172 of Land Revenue, 1967---Validity---Neither the contents of plaint had been discussed nor the nature of suit and the relief prayed for had been considered by the courts below---Suit had been dismissed merely confining the same to the extent of correction of revenue record which was not a proper course of law---Courts below could have properly appreciated the averments of the plaint as a whole and thereafter draw the proper conclusion---Plaintiff had attributed some acts of tampering with record to the officials of revenue department and had also prayed for declaratory decree as well as decree for possession---Suit could not be dismissed merely on the ground that one of the remedy prayed for in the plaint could not be granted while ignoring the others---Matter of remedies had to be resolved by the Trial Court at the time of final disposal of suit as to which of the remedy had to be granted or refused---Suit could not be dismissed while picking one of the remedies out of several, if others were permissible under law---Party aggrieved by the entries in the revenue record could file declaratory suit---Jurisdiction of Civil Court was barred in certain matters which were specifically enumerated in S. 172 of Land Revenue, 1967---Suit for declaration with regard to adverse entries in the revenue record could competently be filed by an aggrieved person in a Court of competent civil jurisdiction---Impugned judgments and decrees passed by the courts below were set aside and case was remanded to the Trial Court for conducting proceedings according to law---Appeal was disposed of in circumstances.

Sardar Khan v. Ghulam Hussain and 31 others 2003 YLR 1788 ref.

Kh. Muhammad Akbar and 5 others v. Kh. Fateh Muhammad 16 others 2000 SCR 211; Ghulam Rasul v. Hidayat Ullah 1987 MLD 35 and Mir Rehman Khan v. Sardar Asadullah Khan PLD 1983 Quetta 52 rel.

Manzoor Hussain Advocate for Appellant.

Raja Hassan Akhtar Advocate for Respondents.

YLR 2017 SUPREME COURT AZAD KASHMIR 1571 #

2017 Y L R 1571

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

JAWARIA MAQSOOD---Appellant

Versus

JOINT ADMISSION COMMITTEE FOR MEDICAL COLLEGES through Chairman and 3 others---Respondents

Civil Appeal No.396 of 2015, decided on 16th January, 2016.

(On appeal from the judgment of the High Court dated 15.12.2015 in Writ Petitions Nos. 1969, 2324, 2426, 2433 and 2474 of 2015).

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

----S. 44---Writ petition---Educational institution---Medical College---Nomination for Special Seats reserved for the residents of Leepa and Neelum (AJ&K)---Findings of High Court in an earlier writ petition that notification dated 17-04-2014 issued by Government with regard to nomination for such seats would be applicable to the onward sessions 2015-16---Scope---High Court in the present writ petition recorded findings that no embargo could be placed on the nomination of candidates who had completed their F.Sc. prior to issuance of notification dated 17-04-2014---Validity---High Court had taken the contradictory view as on the one hand it was held that notification dated 17-04-2014 was applicable for nomination against the seats reserved for the session 2015-16 whereas on the other hand direction was issued that no embargo could be placed on the nomination of candidates who passed their F.Sc. examination prior to the issuance of said notification---Said notification would operate prospectively and was applicable for session 2015-16---No one could be nominated in violation of conditions imposed in the said notification---High Court was not justified to grant the claimed relief to the candidate contrary to its own judgment which had attained finality---Impugned judgment was quashed and nomination if any made in the light of said judgment was set aside---Appeal was allowed accordingly.

Abdul Shakoor v. Mrs. Shamim Khalid and 5 others 2004 PLC (C.S.) 7 distinguished.

(b) Notification---

----Notification or an executive order would operate prospectively and not retrospectively unless specifically provided otherwise.

Hashwani Hotels Limited v. Federation of Pakistan and others PLD 1997 SC 315 and Abdul Shakoor v. Mrs. Shamim Khalid and 5 others 2004 PLC (C.S.) 7 rel.

Miss Bilqees Rasheed Minhas, Advocate for Appellant.

Sardar Shahid Hamid Khan, Advocate for Respondents Nos.1 to 3.

Kh. Imtiaz Ahmed Khan, Advocate for Respondent No.4.

YLR 2017 SUPREME COURT AZAD KASHMIR 1655 #

2017 Y L R 1655

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

IFTIKHAR MEHMOOD and another---Appellants

Versus

STATE through Advocate-General of Azad Jammu and Kashmir and another---Respondents

Criminal Appeal No.35 of 2014, decided on 27th January, 2015.

(On appeal from the order of the Shariat Court dated 26.5.2014 in Revision Petition No. 14 of 2014).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 337-F, 337-A, 341, 147, 148 & 149---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-i-amd, attempt to commit qatl-i-amd, Ghayar-Jaifah, causing Shajjah, wrongful restraint, rioting, common intention---Bail, grant of---Trial of the case could not be conducted after lapse of more than two years and nothing spelt out from the record that such delay was occasioned due to the conduct of accused persons---Statutory right had accrued in favour of accused persons on non-conclusion of trial within stipulated period---Bail could not be withheld, if no other condition was attracted which could impose an embargo for releasing accused persons on bail---Case of accused persons did not fall under the definition of "hardened, desperate and dangerous criminals"---Mere cause of death by firing, was not sufficient for declaring an accused as hardened, desperate and dangerous criminal---Fact that occurrence took place on Eid day, would not debar to release accused person on bail, until the case of accused persons, otherwise would come within the purview of Fourth proviso to subsection (1) of S.497, Cr.P.C.---Nothing was on record from where it could be ascertained that accused persons were previously convicts or had been involved in any other criminal case---Injuries received by accused, would also be seen in the light of the evidence provided by the parties---Such aspect of the case could not be ignored at bail stage---Commencing of the trial, would not impose any clog for releasing accused persons on bail---Accused persons were directed to be released on bail, in circumstances.

Muhammad Siddique v. Muhammad Behram and another 1998 PCr.LJ 358 and Zahid Hussain Shah v. The State PLD 1995 SC 49 ref.

Naeem Akram Khan v. Mumtaz Ahmed and another 2004 PCr.LJ 837; Muhammad Asif v. The State 2002 PCr.LJ 1102 and Mansab Dar and 2 others v. The State PLD 1975 Lah. 530 distinguished.

Raja Imtiaz Ahmed Khan, Advocate for Appellants.

Ch. M. Ashraf Ayyaz Addl. Advocate-General for the State.

Malick M. Zarait, Advocate for the Complainant.

YLR 2017 SUPREME COURT AZAD KASHMIR 1852 #

2017 Y L R 1852

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

CRIMINAL APPEAL NO.13 OF 2013

(On appeal from the judgment of the Shariat Court dated 20.02.2013 in Criminal Revision Petitions Nos. 3, 11 and 12 of 2013).

AKBAR ALI---Appellant

Versus

MUNIR AHMED and 3 others---Respondents

CRIMINAL APPEAL NO.33 OF 2013

(On appeal from the judgment of the Shariat Court dated 11.05.2013 in Criminal Revision Petitions Nos. 13 and 83 of 2013).

AKBAR ALI---Appellant

Versus

MOBEEN LIAQUAT and 3 others---Respondents

CRIMINAL APPEAL NO.40 OF 2013

(On appeal from the judgment of the Shariat Court dated 10.07.2013 in Criminal Revision Petition No. 76 of 2013).

AKBAR ALI---Appellant

Versus

TABASSUM YOUNIS and another---Respondents

Criminal Appeals Nos.13, 33 and 40 of 2013, decided on 27th February, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302, 34, 147, 148 & 149---Arms Ordinance (XX of 1965), S.13---Qatl-i-amd, common intention, rioting, rioting with deadly weapon, common object---Bail, cancellation of---Case was of circumstantial evidence and no direct evidence was available---Case was mainly based upon the disclosure made by accused persons before the Police---No sufficient material was available to connect accused persons with the alleged offence---Only a bird eye view of evidence had to be made at bail stage and deeper appreciation was not possible---Co-accused were released on bail---When the bail was granted to an accused by the court of competent jurisdiction, very strong reasons were required to cancel the same---Grounds for grant of bail, were altogether different as compared to cancellation of bail---Discretionary powers exercised for grant of bail by the Trial Court and the Shariat Court were normally not interfered with by the Supreme Court; especially when the discretion exercised by the Trial Court and Shariat Court for release of accused persons on bail was perfectly legal and in accordance with law and rules governing the grant/refusal of bail---No force was found in the appeals filed against concurrent judgments of the Trial Court and Shariat Court---Supreme Court declined interference.

Muhammad Asghar v. Arshad Anwar and another 2010 SCR 491; Waqar Aslam v. Zargham Haider Shah and another 2012 YLR 1880; Nazir Ahmed and 3 others v. Ghulam Hussain and another 2014 SCR 409; Zaffar Mehmood v. Muzaffar and another 2014 PCr.LJ 1512 and WAPDA and another v. Shahid Mehmood and 2 others 2014 SCR 579 ref.

Raja Khalid Mehmood Khan, Advocate for Appellant (in Criminal Appeals Nos.13, 33 and 40 of 2013).

Mehmood Hussain Chaudhary, Additional Advocate-General for the State (in Criminal Appeals Nos.13, 33 and 40 of 2013).

Bostan Chaudhary, Advocate and Raja Inamaullah, Advocate for Respondents (in Criminal Appeal No.13 of 2013).

Khalid Rasheed Chaudhary, Advocate and Abdul Hameed Khan, Advocate for Respondents (in Criminal Appeal No.33 of 2013).

Raja Inamullah, Advocate for Respondent (in Criminal Appeal No. 40 of 2013).

YLR 2017 SUPREME COURT AZAD KASHMIR 1895 #

2017 Y L R 1895

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia, and Raja Saeed Akram Khan, JJ

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary, Muzaffarabad and another---Appellants

Versus

WAHEED AHMED KHAN and 10 others---Respondents

Civil Appeals Nos.382 of 2015 and 164 of 2016, decided on 10th February, 2017.

(On appeal from the judgment of the High Court, dated 22.5.2015 in Civil Appeals Nos.187 and 205 of 2012).

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

----Ss. 18, 12 & 9---Acquisition of Land---Reference to Court---Limitation---Commencement of---Award issued in absence of landowner---Notice---Necessity--- Expressions "any person interested who has not accepted the award" and "whichever period shall first expire"---Scope---Issue, non-framing of---Effect---Collector Land Acquisition was bound to give immediate notice to such persons interested who were not present personally or by their representatives when award was issued---When property was acquired and award was issued in absence of land owner then Collector Land Acquisition was bound to issue immediate notice to such person---If no such notice was issued then limitation for reference petition would start from the date of knowledge and not from the date of award---Pre-condition for acceptance or non-acceptance of a thing was awareness and knowledge of such thing or an offer from the other side---Service of notice under Ss. 9 & 12 of Land Acquisition Act, 1894 was mandatory requirement which could not be dispensed with---When notice was issued under S. 12(2) of Land Acquisition Act, 1894 then limitation to file reference petition would be six weeks from the date of receipt of notice---If no such notice was issued then limitation would be six months from the date of award---If Collector Land Acquisition failed to give immediate notice and same was issued after passage of five months of award and land owner received the said notice before expiry of six months then period of six months would be lesser as compared to six weeks from the date of receipt of notice---If notice was not issued under S.12(2) of Land Acquisition Act, 1894 to the interested person and he acquired knowledge after a period of five and half month then lesser period would be six weeks and limitation would be six weeks from the date of knowledge and not six months from the date of knowledge---When award was issued under S.12(2) of Land Acquisition Act, 1894 and no notice was issued to the land owner then limitation in such case would be six weeks from the date of knowledge---No notice under S.12(2) of Land Acquisition Act, 1894 was issued, proceedings of award became without lawful authority and of no legal effect due to non-compliance of mandatory requirement of law---Reference petition was filed after a period of one year, three months and seven days of the award---Referee Judge neither framed issue on the question of limitation nor decided the same---Question of knowledge with regard to limitation could not be determined without recording evidence of the parties---Question of limitation was mixed question of fact and law which could not be resolved without recording evidence---Supreme Court framed additional issue and remanded the case to the Reference Judge with the direction to provide an opportunity of leading evidence to the parties and decide the same afresh---Impugned judgments passed by the Courts below were set aside---Appeal was allowed in circumstances.

Muhammad Jan and 4 others v. Azad Government and 7 others 1996 CLC 1967; Government of Pakistan and another v. Syed Ghulam Haider Shah and 5 others 2007 SCR 175; Azad Govt. of The State of Jammu and Kashmir and 2 others v. Muhammad Rafique Khan and 9 others 2009 CLC 1378; WAPDA through Chief Engineer Mangla and another v. Sardar Asif Ayub Khan and another 2013 SCR 673; Muhammad Meharban and 4 others v. Collector Land Acquisition and 3 others 2015 SCR 1034; Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer and another AIR 1961 SC 1500; Tariq Javaid v. Azad Govt. and 5 others 2015 SCR 653; Sardar Tariq Mehmood Khan and 21 others v. Barkat Ali and 26 others 2016 SCR 902; State of Punjab v. Mst. Qaiser Jehan Begum and another AIR 1963 SC 1604; Col. Bashir Hussain and others v. Land Acquisition Collector and others PLD 1970 Lah. 321 and Mst. Sardar Begum v. Lahore Improvement Trust and others PLD 1972 Lah. 458 rel.

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

----S. 4 (4)---No person should be deprived of his property save in accordance with law.

Sardar Javed Naz, Additional Advocate General for Appellants (in Civil Appeal No.382 of 2015).

Sardar Muhammad Rauf Khan for Respondents (in Civil Appeal No.382 of 2015).

Sardar Muhammad Rauf Khan for Appellants (in Civil Appeal No. 164 of 2016).

Sardar Javed Naz, Additional Advocate General for Respondents (in Civil Appeal No.164 of 2016).