' Instant civil revision assails the judgment and decree dated 24-5-2004 passed by the learned Additional District Judge, Chakwal, whereby appeal of the respondents was accepted and their suit was decreed, by reversing the judgment and decree 26-4-2003 of the trial Court.
2. Precisely relevant facts are that the respondents filed a suit for declaration with consequential relief of possession/permanent-mandatory injunctions, challenging Mutation No, 616 dated 22-7- 1977 sanctioned regarding inheritance of late. Ch. Khan, grading it to be illegal, void and of no legal consequence qua their rights. It was averred in the plaint that Mst. Maqsoodan Begum being the only daughter of late Ch. Khan was entitled to inherit his estate to the extent of 1/2 share but instead the disputed mutation was attested giving her only 1/4th share and the rest of 3/4 share was wrongly mutated in the names of the petitioners as descendents of collaterals. Mst.
Maqsoodan Begum the original plaintiff had prayed for a decree for permanent injunction against the petitioners, restraining them from changing the nature of the suit property or to alienate the same by any means whatsoever.
3. The petitioners being defendants in the suit contested it and out of them, defendants Nos.6 to 10 and 12 to 14 filed their written statement wherein certain preliminary objections were raised and on merits, it was submitted that the last male holder i.e, Ch. Khan died before promulgation of Shariat Act, therefore, Mst. Maqsoodan Begum was not entitled to share in the property of her father.
Controversial pleadings of the parties necessitated framing of issues and recording of evidence.
The learned Civil Judge who was seized of the matter, after doing the needful, dismissed the same on the basis of his appraisal of evidence vide his judgment and decree dated 26-4-2003. The original plaintiff . Maqsoodan Begum being aggrieved of decision of the trial Court filed an appeal before the learned Additional District Judge but pending the appeal she died. Respondents were substituted in her place, as appellants. The First Appellate Court vide judgment and decree dated 24-5-2003 accepted the appeal, reversing the judgment and decree of the trial Court and decreed the suit of the respondents, holding that Mst. Maqsoodan Begum being the only daughter of Ch. Khan was entitled to 1/2 share of his estate. The petitioners being aggrieved. Now have filed the instant petition against the appellate judgment before this Court.
4. The learned counsel for the petitioners submitted that the original owner Ch. Khan was governed by customary law of the Punjab and died before partition of Indo-Pak. Sub-Continent and earlier to promulgation of Shariah Law, whereunder the daughters did not inherit the estate of their fathers, hence, the respondents were not entitled to the decree prayed. According to him, Mutation No,616 was sanctioned on 22-6-1977 when limited estate held by daughter of Ch. Khan was terminated on account of her marriage, hence, she was rightly given 1/4 share but a contrary view taken by the Appellate Court is not in consonance with the law. He further submitted that the predecessor of the respondents never objected to the mutation in question till the time she filed her suit on 21-10-1997, thus, she was estopped to challenge the same under the principle of acquiescence. The learned counsel for the petitioners also submitted that the suit by Mst. Maqsoodan was barred by limitation as the same was filed after lapse of more than two decades.
5. It have minutely considered the arguments of the learned counsel for the petitioners and have examined the record, appended herewith. Undeniably, Mst. Maqsoodan Begum was daughter of Ch. Khan who succeeded by progeny of his only daughter and the collaterals. She was entitled to 1/2 share in the legacy of her deceased father under Muslim Law of inheritance. The only controversy, which hinged. For determination was as to whether on termination of limited estate held by a widow, or daughter on marriage or death, after promulgation of Shariat Application Act 1962, who will inherit the estate and to what extent. Maqsoodan Begum being unmarried daughter was given the entire estate of her father under Punjab Customary law. According to showings of the petitioners themselves, it terminated on her marriage in the year 1977. Let us assume that limited estate terminated in 1977 which though under law, extinguished on promulgation of Shariat Application Act, 1962 and the property reverted back to Muslim heirs, according to their Sharai shares, who were alive at the time of death of last male owner i.e, Ch. Khan. Mst. Maqsoodan Begum was admittedly alive at the time of death of his father, as she was given property of her father for maintenance purposes till her marriage or death, she was entitled to her Sharai share to the extent of 1/2 share in the legacy of her deceased father but instead she was given only 1/4 share which could not be justified under any law. Objection regarding estoppel against Mst.
Maqsoodan Begum and regarding her suit being barred by limitation, are of substance, as on death of her father or termination of her limited interest, her share vested in her, the moment her father breathed his last or the limited interest was extinguished by this analogy, she had become a co-sharer along with the collaterals i.e, the petitioners and no period of limitation would run against her. Similarly principle of estoppel by acquiescence would not be attracted because a co- share in possession of joint property, will be considered to hold share of the other co-sharers out of possession, on their behalf. My this view is fortified by the consistent judgments of the Honourable Supreme Court in the cases of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 Supreme Court 1; Maqbool Ahmad v. Government of Pakistan 1991 SCM R 2063 and the judgment by this Court in the case of Anjum and 2 others v. Mst. Sufaidan and the judgment by this Court in the case of 3 others PLD 1989 Lahore 103.
6. For the reasons noted above, I have no hesitation to hold that the appellate Court correctly concluded the lis and findings returned in support of the impugned judgment are strictly in consonance with the evidence on the record and the law applicable. No illegality/ irregularity amenable to revisional jurisdiction of this Court, was committed, in absence of which no interference therein, can be made under section 115, C.P.C. This petition consequently has no merit in it and is accordingly dismissed in limine.
Revision dismissed.
2005- YLR 861 [Karachi] Before Rahmat Hussain Jafferi and Gulzar Ahmed, JJ SHAMSUDDIN---Appellant versus THE STATE---Respondent Criminal Appeal No,45 of 2002, decided on 30th January, 2003.
Control of Narcotic Substances Act (XXV of 1997)--- ----S.9(b)---Criminal Procedure Code (V of 1898), S.342---Appreciation of evidence-- Examination of accused---Report of Chemical Analyser in respect of Charas allegedly recovered from the accused, was in positive, but such report was not put to accused in his statement under 5.342, Cr. P. C. Despite that accused was convicted on the basis of alleged recovery of Charas--- State counsel had conceded that trial Court had committed material irregularity by not putting evidence of Chemical Analyser Report to accused as required under S. 342, Cr. P. C. And that said illegality could not be cured---Conviction and sentence awarded to accused by Trial Court was set aside and C case was remanded to the Trial Court for recording statement of accused under S. 342, Cr.P.C. Afresh and decide case in accordance with law. 862] A Rahim v. Crown PLD 1952 FC 1; Aminul Hag v. Crown PLD 1952 FC 63; Muhammad Mumtaz v. The State PLD 1997 SC 689 and Din Muhammad v. The State 1969 SCM R 777 ref. Nisar Ahmed G. Abro for Appellant.
Ali Azhar Tunio, Assistant A.-G. For the State.
Date of hearing: 30th January, 2003.
' RAHMAT HUSSAIN JAFFERI, J.---The present appeal is directed against the judgment dated 24-4- 2002 passed by the learned 1st Additional Sessions Judge and Special Judge for Control of Narcotic substances, Jacobabad in Special Case No,5 of 2001 State v. Shamsuddin by which the learned Judge had convicted the appellant under section 9(b), Control of Narcotic Substances Act, 1997 (hereinafter referred as C.N.S. Act) and sentenced him to suffer R.I. For 7 years and to pay fine of .Rs,50,000 or in default thereof to suffer S.I. For 6 months more with benefit of section 382-B, Cr.P.C.
' The facts giving rise to the present appeal are that on 4-2-2001 at 6-15 p.m. At Phool Bagh Road the appellant was found in possession of 1000 gms of Charas which was secured by the police party headed by S.I.P. Mazhar Ali Dharejo of Police Station, Civil Lines Jacobabad. The property was sent to Chemical Analyzer for examination and report. The report was in positive. After completing the investigation, the appellant was challaned in the Court where he was tried and convicted as mentioned above under the impugned judgment. The appellant was dissatisfied with the said judgment, hence preferred this appeal.
' The Advocate for the appellant has stated that under section 342, Cr.P.C. Each piece of evidence appearing in the evidence against the accused person's to be put to the accused for obtaining his explanation but a question regarding the Chemical Analyser Report was not put to the appellant in his statement under section 342, Cr.P.C. And that the appellant has been convicted on the basis of the alleged recovery of Charas which could only be proved through the Chemical Analyser as such when no such evidence was put to the appellant in the statement under section 342, Cr.P.C. Then the said evidence cannot be used against the appellant while convicting him. He has further stated that it is material irregularity which cannot be cured hence he has requested for setting aside the judgment.
'Mr. Ali Azhar Tunio, Assistant A.-G. For the State after going through the R and Ps has stated that learned trial Court has committed material irregularity by not putting the evidence of Chemical Analyser Report to the appellant as required under section 342, Cr.P.C. And that the said illegality cannot be cured therefore, the impugned judgment requires interference. He has requested that the case may be remanded to the trial Court for recording the statement under section 342, Cr.P.C.
Afresh and then proceed further in accordance with the law.
' We have given due consideration to the arguments and perused the record and find that the above arguments have great force as no question was asked from the appellant in his statement under section 342, Cr.P.C. With regard to the Chemical Analyser Report. It is well-settled principle of law that conviction can only be based upon the evidence which is put to the accused in his statement under section 342, Cr.P.C. For obtaining his explanation and if such evidence is not put to the accused in such statement then it cannot be used against him. Reliance is placed upon Rahim v. Crown PLD 1952 FC 1; Aminul Haq v. Crown PLD 1952 FC 63. The point was also examined in a case of Muhammad Mumtaz v. The State PLD 1997 SC 689 and after relying upon an other authority of the Honourable Supreme Court of Pakistan in a case of Din Muhammad v. The State 1969 SCM R 777.
It was observed that appellants when examined under section 342, Cr.P.C. Were not put the report of Chemical Analyser, then it was found violative of mandatory provision of law.
' In view of above position, the conviction and sentence awarded under the impugned judgment is set aside. The case is remanded to the trial Court for recording the statement of appellant under section 342, Cr.P.C. Afresh and then decide the case in accordance with the law. The appeal is allowed in the above.