' Precisely stated facts of the case are that the respondents filed the ejectment petition, before the learned Rent Controller, against Saif-ur-Rehman and 4 others, seeking their eviction from the questioned property, on the grounds of default in the payment of rent since 1-11-1992, materially impairing the value and utility of the building and personal, use of the owners. The said ejectment petition was contested by Saif-ur-Rehman, through Filing its written reply, thereby controverting the contents of the ejectment petition, inter alia, pleading that after the receipt of legal notice, he, in order to avoid any litigation, started making payment of the demanded rent at the rate of Rs.2353 per mensem. The learned Rent Controller, in exercise of powers under section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, directed Saif-ur-Rehman to deposit the arrears of rent w.e.f. 30-11-1997 to 1-10-1998 at the rate of Rs.1,981 per month and from 1-10-1998 onwards at the rate of Rs.2,476 per month before the 15th of next month and also to deposit future monthly rent before the 15th day of each month, vide order dated 30-7-2001. Thereafter, Saif-ur-Rehman filed the application seeking review of order dated 30-7-2001, which was contested by the respondents on the legal plane that the learned Rent Controller is not empowered to review its own order. Before the said application could be decided, the respondents filed the application, under section 13(6) of Punjab Urban Rent Restriction Ordinance, 1959, contending therein that as the rent deposit order has not been complied with, therefore, the defence of Saif-ur-Rehman be struck off. This application was resisted by Saif-ur-Rehman, who pleaded that in order to avoid any dispute, due rent has been deposited. The learned Rent Controller, after hearing the parties, dismissed the review application, on the ground that he has no jurisdiction to review its order, and accepted respondent's application, under section 13(6) of the Ordinance, struck off the defence of Saifur- Rehman and passed the ejectment order, through two separate orders both dated 17-11-2001. Saif- ur-Rehman challenged the said orders before the Appellate Authority, however, his appeal was dismissed by the learned Additional District Judge, vide impugned judgment dated 14-2-2002, hence the present second appeal.
2. Learned counsel for the appellants has contended that the respondents, in their application filed under section 13(6) of the Ordinance 1959, did not raise the plea that the rent was deposited in the name of a wrong person and their case was that arrears as well as future monthly rent have not been deposited in accordance with law, thus, according to the learned counsel new plea cannot be agitated before this Court in second appeal. He has further submitted that although ejectment petition was not competent, yet Saif-ur-Rehman, in order to avoid any dispute and future complications, deposited the arrears of rent, though in his own name. He has added that the learned Rent Controller has directed the eviction of Saif-ur-Rehman without determining the question as to whether the act of Saif-urRehman, in depositing the rent in his name, was contumacious, deliberate and intentional. He has relied upon Muhammad Arif v. Muhammad Raza PLD 1993 Lahore 121. He, while referring to page 9 of the appeal, has submitted that in fact Saif- urRehman has deposited excess amount of Rs.1,555. Conversely, the learned counsel for the respondents, while refuting the said contentions, has submitted that Saif-ur- Rehman did not deposit the rent in the name of the respondents, as directed by the learned Rent Controller, but deposited the same in his own name, therefore, he has committed default and both the Courts have rightly struck off the defence of Saif-urRehman, which order/judgment are not open to exception. He has referred to the judgments reported as Khawaja Ghulam Mustafa v. Mian Waigar Ahmad PLD 1980 SC 9 and Buzarg Jamil and another v. Haji Abdul Bari and others PLD 2003 SC 477.
He has added that there is no question of waiver on the part of the respondents and it is the duty of the Court to see as to whether the mandatory provision of law has been complied with or not.
3. Admittedly, the learned Rent Controller, in exercise of his powers under section 13(6) of the Ordinance, directed Saif-ur-Rehman to deposit the arrears of rent and future monthly rent before 15th of next month. In reply to respondent's application, under section 13(6) of the Ordinance, 1959, Saif-ur-Rehman though pleaded that this application is not maintainable in view of the pendency of review petition, however, it was stated that in order to avoid any dispute he has deposited the rent as per the directions of the learned Rent Controller and the receipts have been placed on record. Relevant portion of the reply reads as under:- {{URDU TEXT}} ' It flows from the above that the only defence of Saif-ur-Rehman, to respondent's afore-noted application, was that irrespective of pleas raised in the written reply to the ejectment petition, he has complied with the rent deposit order, passed by the learned Rent Controller, and has, in fact, deposited the due rent. The learned Rent Controller, after the examination of the challan forms/rent receipts, produced by Saif-ur-Rehman, came to the conclusion that the rent has not been deposited in the name of Haji Saleh Muhammad, the predecessor-in-interest of the respondents, but the same was deposited in the name of Saif-ur-Rehman himself. I have also examined the receipts/challan forms, photocopies whereof have been placed on record of the appeal, and find that the findings of the learned Rent Controller are in accordance with the record of the case and are not open to exception, as the challan forms show that the rent for the period from January, 1998 to July, 1999 was deposited by Saif-urRehman in the name of Saif-ur-Rehman. These Bank challan forms do not indicate either the name of Saleh Muhammad or any of the respondents. In view whereof, the only conclusion, which can be drawn, is that Saif-ur-Rehman did not deposit the rent in favour of Saleh Muhammad and, in fact, deposited the same in his own name. Obviously, the said deposit of rent is not in accordance with the directions of the learned Rent Controller, as Saif-ur-Rehman was not directed by the learned Rent Controller to deposit the arrears of rent and future monthly rent in his own name and it cannot be termed and considered as compliance with the rent deposit order, passed under section 13(6) of the Ordinance. It is settled law by now that if the rent due has not been deposited in favour of landlord and the same has been deposited either in the name of depositor himself or in the name of a wrong person, that does not amount to tender/deposit of the rent in favour of landlord and cannot be taken as sufficient compliance of the rent deposit order and such defaulting tenant is liable to be evicted. Reference can be made to the judgments reported as Khawaja Ghulam Mustafa v. Mian Waqar Ahmad PLD 1980 SC 9; Bahadur Khan and others v. Ch. Muhammad Hussain and others 1991 SCMR 429; Qari Abdul Rehman and 6 others v. Jamaluddin and another 2000 SCMR 226 and Buzarg Jamil and another v.
Haji Abdul Bari and others PLD 2003 SC 477. Being guided by the aforesaid law declared, I am constrained to hold that Saif-ur-Rehman, by depositing the rent in his own name, did not comply with the directions of the learned Rent Controller, passed under section 13(6) of the Ordinance and his act was deliberate and contumacious, thus, he committed default entailing the penalty of eviction.
4. As regards the judgment, relied upon by the learned counsel for the appellants, suffice it to say that in view of the law declared, as noted above, the said judgments are of no avail to the appellants.
5. In the above perspective, I have examined both the order/judgment and find that both the Courts did not commit any legal errors in passing both the order/ judgment and the same do not suffer from any legal infirmity. I have no reasons to upset the concurrent findings of fact, thus, both the order/judgment are maintained.
6. Upshot of the above discussion is that the present appeal is hereby dismissed, leaving the parties to bear their own costs.
Appeal dismissed.
2005 YLR 2331 [Karachi] Before Anwar Zaheer Jamali and Maqbool Baqar, JJ MUHAMMAD HUSSAIN---Petitioner versus GOVERNMENT OF SINDH and others---Respondents Constitutional Petition No.D-509 of 2004, decided on 25th August, 2004.
Sindh Building Control Ordinance (V of 1979)-L'- ----Ss. 7 & 6(1)---Constitution of Pakistan (1973), Art. 199---Prayer in Constitutional petition with regard to demolition of dangerous construction, but absence of prayer with regard to demolition of unauthorized construction---Validity---Duty of authority was to carry out its legal obligations and demolish dangerous building or illegal/unauthorized construction---High Court in both situations was competent to issue necessary directions to concerned functionaries to act in accordance with law to avoid any abuse of process of law--- High Court accepted Constitutional petition in circumstances. [pp. 2333, 23341 A, B & C Noor Muhammad and another v. Building Control Authority and 2 others 1992 CLC 729 ref. Malik Khushhal and Ismail Memon for Petitioner.
Qazi Khalid Ali, Addl. A.-G. Sindh, Anwar Ali Shah, Farooq Hashim and Raja Sikandar Khan Yasir for Respondents.
Date of hearing: 25th August, 2004.
' ANWAR ZAHEER JAMALI, J.---The petitioner Muhammad Hussain claiming himself to be the owner of ground floor of building over site G-1 and G-2 admeasuring 53, 24 and 42 sq. Yds. Over Plot bearing sheet No.O.T/4. Survey No.33, Old Survey No.A-4/48 Old Town Quarters, Karachi, excluding 16.67 sq. Yards portion, which is owned by respondent No.8 along with the first floor, has preferred this petition with the following prayer:-- "It is most respectfully prayed that this honourable Court may be pleased to direct the respondents Nos.1 to 7 to perform their duties in accordance with the law and demolish, remove of the old existing dangerous declared building/structure situated at Plot No.33-0-T/4. Old Town Quarters, Karachi and direct the respondents Nos.8 and 9 to cooperate in the lawful functions of the respondents Nos.1 to 7."
2. Earlier when this petition was taken up for hearing before another Bench of this Court on 1-6- 2004 after hearing learned counsel for the petitioner and respondents 2, 3 and 4 it ' was finally disposed of with the following observations:-- "Subsequently a meeting was called by the Chief Controller of Buildings on 6-4-2004 and attended by the petitioner, respondents Nos.8 and 5. Thereafter the building was re-inspected and it was found that the dangerous portion no longer existed and now "the matter is shifted as unauthorized construction rather than the dangerous building which will be dealt accordingly. We are constrained to hold that the attitude adopted by respondent No.2 is patently mala fide and cannot be sustained on any hypothesis. In the first instance once it had decided that the building required demolition and not merely partial repairs, it is impossible to see how the conclusion to the effect that "the dangerous part" had been demolished was reached. Secondly assuming that respondent No.8 as a tenant in the building had acquired some legal right or interest, one fails to see how the respondent No.2 could arrogate itself the power to protect his interest. Thirdly the petitioner's allegation as to the respondent No.5 being personally interested in the matter, is clearly corroborated by the counter-affidavit filed on behalf of respondents Nos.2 and 3 Fourthly assuming that the building was no longer dangerous but it became unauthorized one fail to see how the responsibility of the respondent No.2 to demolish unauthorized building can be avoided. The petitioner's father has apparently made some allegation of being disgraced humiliated. Normally one would have ignored such allegations without corroboration, we are constrained to observe that in view of the over all conduct of the respondent No.2 it could not be brushed aside.
' Reiterating that the action is not merely illegal but also mala fide oh its very face, we direct the respondent No.2 to demolish the aforesaid building within three months. The petitioner however, is willing to pay costs of the demolition. A copy of this order would be communicated to the City Nazim and Chief Controller of Building directly. The petition stands disposed of accordingly.
3. However, vide order dated 17-8-2004, above order was recalled for the sole reason that at time no opportunity of hearihg was provided to respondent No.8, who is admittedly one of the co-owner of the disputed building.
4. On 20-8-2004 and today we have heard learned counsel for the parties at, length and also perused the report of the Technical Committee of K.B.C.A. Dated 28-4-2004, which was called by this Court vide its order dated 20-8-2004. Relevant portion of such report reads as under: "Previously some portion collapsed then major dangerous portions demolished.
' Remarks: Recently Vodla Syed Volunteer removed dilapidated remaining portion in compliance of the decision by C.C.O.B. In a meeting among the parties to solve the long disputes.
' Recommendation of the Technical Committee.
' Dangerous portions of original stone masonry building have been removed already. Present R.C.C.
Portions (remnants) may be checked and if unauthorized necessary action may be taken."
5. After hearing learned counsel for the parties we have noticed that in both situations i.e. Either the building is dangerotis or its construction is illegal and unauthorized it is the duty of respondent No.2 to carry out its legal obligation and demolish such dangerous or unauthorized construction.
6. Faced with the above situation, contention of Mr. Farooq Hashim, learned counsel for respondent No.8 that since the prayer made in the petition is only with regard to demolition of dangerous construction therefore, no relief can be granted to the petitioner in case of unauthorized construction has no force. In both the situations as also observed in the earlier order dated 1-6- 2004, this Court is competent to issue necessary directions to the concerned functionaries to act in accordance with law to avoid any abuse of the process of law and making it a force. To justify his view learned counsel for respondent No.8 has placed reliance upon the case of Noor Muhammad and another v. Building Control Authority and 2 others 1992 CLC 729, but we have not been able to find any relevancy of this case in the different facts and circumstances of case in hand. Moreso, for the reason that the counsel for the respondent No.8 has failed to place any authentic document on record, such as approved building permission for reconstruction from the then competent authority to show that the existing purported R.C.C. Construction over the disputed property was raised by respondent No.8 before the promulgation of Sindh Building Control Ordinance, 1979. The position of unauthorized construction further finds support from the fact that the notice for declaring the disputed building dangerous was published in the year 1999 and similar notices were also served on the concerned parties during the same year but in response, no such plea was taken by respondent No.8 at that time. The copies of notices dated 17-5-2004 and 28-6- 2004 placed on record by the K.B.C.A. Further lend support to the case of the petitioner that the existing construction whether dangerous or unauthorized is liable to be demolished by them.
7. In addition to the above, we are also persuaded to mention here that the observations given by this Court in its order dated 1-6-2004 about the conduct of respondents Nos.2 and 3 are apt and befitting to their conduct.
8. Mr. Raja Sikandar Khan Yasir, learned counsel for respondent No.9, who is stated to be the owner of second floor of the disputed building, has rightly submitted that being dangerous second floor of the disputed property has already been demolished and petitioner being owner of ground floor is also keen for demolition of the remaining structure declared dangerous but it is only respondent No.8, the owner of first floor along with 16.67 Sq. Yds. Of ground floor, who after issuance of notice by K.B.C.A., declaring disputed building as dangerous, has carried out some illegal construction, and now under the cover of such construction trying to avoid demolition. He, therefore, urged for grant of relief claimed in this petition.
9. For the foregoing reasons we allow this petition and direct respondent No.2 to demolish the aforesaid disputed building within two months. Learned counsel for the petitioner has volunteered on behalf of petitioner to pay demolition charges, which may be recovered from him. It may, however, be observed that even in case the petitioner fails to bear such charges of demolition, the demolition work shall not be delayed on such pretext.
Petition accepted.
2005 YLR 2334 [Lahore] Before Muhammad Muzammal Khan, J MUHAMMAD ALI alias MUHAMMAD DIN and others---Appellants versus PROVINCE OF PUNJAB through The District Collector, Bhakkar and others---Respondents C. R. No.1822 of 2002, heard on 24th June, 2004.
(a) Specific Relief Act (I of 1877)--- ----S. 12---Limitation Act (IX of 1908), S. 3 & Art. 113---Suit for specific performance of agreement-- -Limitation---Starting point of limitation---Plaintiffs filed suit for specific performance of contract on 18-4-1995---Agreement to sell dated 19-3-1963 had not provided any period of limitation for transfer of title---Period of limitation was to be calculated from date of refusal of the defendants to discharge their obligation under the agreement-Plaintiff's witness had admitted in cross- examination that defendants had refused execution of agreement to sell dated 19-3-1963 in 1988 and they filed suit for permanent injunction---Such fact manifested denial of the agreement to sell and same was positively asserted by the plaintiffs in year, 1988 which was at least, the starting point of limitation---Had the suit of the plaintiffs been filed before, 1991, it would have been within the limitation but the same was filed on 18-4-1995 thus, it was rightly held by both the Courts below to be barred by limitation. [p. 2337] A, B & C
(b) Specific Relief Act (I of 1877)--- ----S. 12---Civil Procedure Code (V of 1908), S. 115---Suit for specific petformance ---Both the Courts below had correctly decreed the suit---Since no part of judgment was either misread or non-read revisional jurisdiction of High Court was not permissible, under law---No illegality or irregularity in terms of section 115, C. P. C. Was committed by any of the Courts below---Revision petition was dismissed, in circumstances. [p. 2337] D Zafar Iqbal Chohan for Petitioners.
Ch. Muhammad Ayyub for Respondent No.1 .
Nisar Ahmad Dhillon for Respondents Nos.2 to 5.
Date of hearing: 24th June, 2004.
' Instant revision petition assails judgments and decrees dated 12-7-2001 and 2-8-2002 passed by the learned Civil Judge and learned Additional District Judge, Bhakkar whereby suit and appeal of the petitioners were dismissed, respectively.
2. Precisely, relevant facts are that the petitioners filed a suit for specific performance of an agreement to sell dated 19-3-1963for possession of 1/6th share of lot No.7 measuring 200 Kanals under Tube Well Sinking Scheme, village Rakh Mandera, Tehsil Mankera District Bhakkar, averring that Khushi Muhammad son of Shadi predecessor of respondents Nos.2 to 5 was allotted the land in question out of which he agreed to sell land, aforesaid, for an amount of Rs.10,000 and executed a receipt and an agreement to sell dated 19-3-1963 delivering possession of the land to the petitioners. It was pleaded by the petitioners that all the instalments payable by the allottee were to be paid by them and it was settled that after getting the proprietary rights, the land will be transferred to them through some instrument. The petitioners also asserted in the plaint that they after taking over the possession made it cultivable by putting hard labour and incurring huge expenses besides paying the entire governmental dues including the instalments which were payable by the allottee bill in spite of payment of all the instalments, after death of Khushi Muhammad, his heirs changed their mind and refused to transfer land in favour of the petitioners, necessitating filing of suit. The respondents being defendants in the suit filed two separate written statements wherein the claim of the petitioners was denied, besides raising certain preliminary objections. Written statement by respondents Nos.2 to 5 was that of denial wherein they denied execution of the agreement to sell and receipt of earnest money. They also urged that suit of the petitioners was barred by limitation. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned trial Judge who was seized of the matter, after doing the needful vide his judgment and decree dated 12-7-2001, dismissed . The suit of the petitioners.
3. The petitioners aggrieved of the decision of the trial Court, filed an appeal before the learned Additional District Judge but remained unsuccessful as their appeal was dismissed vide judgment and decree dated 2-8-2002. Thereafter, the petitioners filed instant revision petition which was admitted to regular hearing and after completion of record, the same has now been laid for final determination. Respondent No.1 is represented through Ch. Muhammad Ayyub, Advocate whereas the other respondents are represented through Mr. Nisar Ahmad Dhillon,_ Advocate.
4. Learned counsel for the petitioners submitted that issues Nos.2, 3 and 5 were decided by the trial Court in favour of the petitioners whereas the rest of the issues were decided against the petitioners. The respondents did not file any appeal or cross-objections and only the petitioners appeal against the judgment of the trial Court. According to him, the Appellate Court reversed findings of the trial Court on Issues Nos.1, 4 and 7 and while confirming findings of the trial Court on Issue No.6, dismissed the appeal of the petitioners. He further elaborated his arguments by saying that Issue No.6 related to the dispute, as to whether suit was barred by limitation and its onus to prove was placed on the shoulders of the respondents/defendants. He further contended that evidence of the respondents was closed under the provisions of Order XVII, rule 3, C.P.C. Vide order of the trial Court dated 28-6-2001 which was not challenged by the respondents, meaning thereby that there was no evidence on the file from the respondent's side, in absence of which suit of the petitioners could not have been dismissed. It was also argued on behalf of the petitioners that the petitioners in their plaint had pleaded that one month earlier to its institution, the respondents refused performance of the agreement to sell by attempting to interfere into possession of the petitioners over the land in question and thus, in view of provisions of Article 113 of the Limitation Act, 1908, suit of the petitioners was within limitation and has incorrectly been dismissed. It was also submitted that there is no evidence on the file to show that the respondents ever refused performance of their' part of the contract, rendering the suit of the petitioners barred by limitation.
5. Learned counsel. Appearing on behalf of respondent No.1 refuted the arguments of the petitioners, supported the concurrent judgments and decrees of the two Courts below and urging that performance of the agreement to sell, as claimed by the petitioners was refused in the year, 1988 when the petitioners themselves filed a suit for permanent injunction with the prayer that the respondents be restrained from interfering in their possession which in itself amounted to refusal and even if from this time, the period of limitation is calculated, the suit filed on 18-4-1995 was barred by limitation because it had to be filed within three years. He further submitted that in view of provisions of section 3 of the Limitation Act, 1908 it was a bounden duty of the Court to first examine the point of limitation even in absence of any objection from the defendants. According to his submissions, even in absence of any evidence, suit of the petitioners on the face of it, was barred by limitation having been based on an alleged agreement to sell dated 19-3-1963. Learned counsel appearing on behalf of respondents Nos.2 to 5 adopted arguments of respondent No.1 and submitted that the petitioners themselves while appearing in the witness-box admitted that the respondents refused the performance of agreement when they interfered into their possession in the year, 1988.
6. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Undeniably, the only issue out of those, framed by the trial Court which requires determination is Issue No.6, relating to limitation. It is also not denied that there is no evidence on the file from the respondent's side. Under Article 113 of the Limitation Act, 1908, suit for specific performance has to be filed within the period of three years from the date fixed in the agreement for its performance or within three years from the date of refusal of the executant to perform his part of contract. The agreement dated 19-3-1963 subject of suit in hand, does not provide any period of limitation for transfer of title, hence, period of limitation will have to be calculated from the date of refusal of the respondents to discharge their obligations under it.
The petitioners pleaded in para.6 of their plaint that cause of action regarding institution of suit accrued one month earlier to its institution, on refusal of the respondents. Muhammad Ali one of the petitioners/plaintiffs appeared as P.W.8 and admitted in his cross-examination that they filed a suit for permanent injunction against the allottee in the year, 1988 when the allottee refused to make statement before the concerned official regarding their rights under the agreement to sell.
P.W.8 also admitted that the respondents refused execution of agreement to sell dated 19-3-1963 when the earlier suit was filed. He also deposed that at the time of institution of suit in hand, filing of earlier suit was not brought to the notice of the counsel who drafted the present plaint. There is a copy of the judgment dated 5-6-1989 given by the learned Civil Judge, Bhakkar in Civil Suit No.387 of 1988 on the file which shows that the petitioners averred therein that the allottee (predecessor of the respondents) was adamant to interfere into their possession over the land in dispute and for this purpose, they filed this suit. All this manifests denial of the agreement to sell and the same was positively asserted by the petitioners in the year, 1988 which was, at least, the starting separating point of limitation. Had the suit of the petitioners been filed before 1991, it would have been within the limitation but the same was filed on 18-4-1995 thus, it was rightly held by both the Courts below to be barred by limitation.
7. For what has been discussed above, I have no hesitation to hold that both the Courts below have taken a rightful view in support of their judgments and decrees which are in consonance with the record, none part of it, has been misread or non` read, in absence of which, no interference in revisional jurisdiction of this Court is permissible, under law. No illegality or irregularity in terms of section 115, C.P.C. Was committed by any of the Courts below. This revision petition has no merit in it and is accordingly dismissed, leaving the parties to bear their own costs.
2005 YLR 2337 [Peshawar] Before Malik Hamid Saeed, J GHULAM MUSTAFA---Petitioner versus THE STATE---Respondent Criminal Miscellaneous No.11 of 2005, decided on 31st January, 2005.
Criminal Procedure Code (V of 1898)--- ----S. 497---Penal Code (XLV of 1860), S.489-B---Bail, grant of---From the contents of F.I.R., it transpired that it was a case of mere possession against accused and it was yet to be decided whether case against accused fell under provisions of S.489-B or S.489-C, P.P.C. And whether accused had or did not have the knowledge that currency notes in question were forged---Case of prosecution pertained only to the recovery of forged and counterfeit currency notes which attracted provisions of 5.489-C, P.P.C., punishment of which did not fall under prohibitory clause of S.497, Cr.P.C.---Accused was admitted to bail, in circumstances. [p. 2338] A Aftab Khan for Petitioner.
Miss Neelam Khan for the State.
Date of hearing: 31st January, 2005.
' Ghulam Mustafa, accused/petitioner, through the instant application seeks his release on bail in case F.I.R. No.507 dated 24-7-2004, under section 489-B, P.P.C., Police Station, West Cantt.
Peshawar, as the request of the petitioner for release on bail has already been declined by the learned Courts below.
' The charge against the accused/petitioner is that he was allegedly apprehended by the local police of Police Station, West Cantt., Peshawar and recovered from his possession 60 counterfeit currency notes, each note of 1000 denomination.
After hearing arguments of the learned counsel for the parties, I am of the view, that the case against the accused/petitioner is arguable for the purposes of bail as from the contents of the F.I.R.
It transpires that it is a case of mere possession against the petitioner and it is yet to be decided whether the case against the petitioner falls under the provision of section 489-B or section 489-C and whether the accused/petitioner had or did not have the knowledge that the said notes were forged, anyhow, at this stage the case of the prosecution pertains only to the recovery of forged and counterfeit currency notes, which attracts the provisions of section 489-C, P.P.C., the punishment of which does not fall under the prohibitory clause of section 497, Cr.P.C.
' Thus without prejudice to the merits of the case, I accept this application and allow bail to the accused/petitioner in the sum of Rs. One lac with two sureties each in the like amount to the satisfaction of Judicial/Maga/Duty Magistrate.
Bail granted.
2005 YLR 2338 [Lahore] Before Syed Shabbar Raza Rizvi, J SAIF ULLAH---Petitioner versus THE STATE---Respondent Criminal Revision No.467 of 2005, decided on 17th June, 2005.
Criminal Procedure Code (V of 1898)--- ----Ss. 190(1)(b) & 191---Penal Code (XLV of 1860), Ss. 302, 109 & 34---Cognizance of offence by Magistrate---Petitioner was named in the F.I.R. But was declared innocent in successive investigations and was not challaned-- -Additional Sessions Judge took cognizance on material submitted before him through a final report of the Investigation under 5.173, Cr. P. C. And summoned the petitioner to face trial; petitioner appeared before the Court and charge was also framed---Petitioner moved an application under S.191, Cr.P.C. On the ground that he having been declared innocent by all the Investigating Officers, he had an option under S.191, Cr.P.C. To be tried by the same Court or another Court, which right had not been given to .Him by the Addl: Sessions Judge and took the cognizance under S.190(1)(c), Cr. P. C. ---Validity---Held, Additional Sessions Judge had exercised his jurisdiction to take cognizance on the basis of material collected by the Investigating Officer during the investigation and in such-like cases whether it was a Magistrate who received the challan or a Trial Court including Addl: Sessions Judge was fully competent to take or refuse to take cognizance of the case---Addl: Sessions Judge took cognizance of the case and not of the person---Cognizance was taken under S.190(1)(b), Cr.P.C.
And S.191, Cr.P.C. Was only attracted in cases where cognizance was taken under S.190(1)(c), Cr. P. C. ---Police had no authority under the law to declare a person innocent or guilty---Magistrate or a Trial Court could form its opinion regarding sufficiency or otherwise of the evidence and material in order to decide whether to take cognizance of the offence and of the case or not, to summon any person to face a trial or not and to frame a charge against a person or not---Principles. [p. 2341] A Khizar Hayat v. Inspector-General of Police Punjab PLD 2005 Lah. 470 fol.
Abdus Sattar Moola v. Crown PLD 1953 FC 145; 1997 PCr.LJ 953 and 1983 SCMR 16 distinguished 2002 SCMR 63 ref. Ch. Muhammad Ashraf for Petitioner.
' The learned counsel has filed this criminal revision against the order dated 8-6-2005 of the learned Addl. Sessions Judge, Kasur in case titled, "State v. Saleem, etc.". The petitioner was named in F.I.R. No.100 of 2004 under sections 302, 109, 34, P.P.C. At Police Station, Ganda Singh Wala, Kasur, but was declared innocent in successive investigations, therefore, the petitioner was not challaned by the police. HoWever, the learned Additional Sessions Judge/trial Court summoned him to face the trial vide his order dated 22-3-2005. The petitioner appeared before the Court and charge was also framed. The petitioner moved an application under section 191, Cr.P.C. Before Court of competent jurisdiction, but his application was dismissed vide order dated 8-6-2005 which is impugned before this Court in the instant criminal revision.
2. The main ground of the learned counsel was that the petitioner was declared innocent by all the Investigating Officers and he had an option under section 191, Cr.P.C. To be tried by the same Court or another Court, this right was not given to the petitioner by the learned Additional Sessions Judge vide impugned order. The learned counsel believes that the learned Additional Sessions Judge took cognizance under section 190(1)(c), Cr.P.C.
3. The learned Additional Sessions Judge, Kasur dismissed the application of the petitioner on the ground that section 191, Cr.P.C. Is applicable in those cases wherein a Magistrate takes cognizance of an offence under sub- section (1) clause (c) of section 190, Cr.P.C. Whereas, he took cognizance of the case under section 190(1)(b), Cr.P.C. The view of the learned Addl. Sessions Judge is given in para.8 of the impugned order which is reproduced as under:-- "It is noteworthy that section 191, Cr.P.C. Deals with the situation when the Magistrate takes cognizance of an offence under subsection (1) clause (c) of section 190, Cr.P.C. And it is provided in the section 191, Cr.P.C. That that the Magistrate shall ask an offender that he is informed that he is entitled to have the case tried by another Court. It is appropriate to reproduce subsection (1) clause (c) of section 190, Cr.P.C. As under:--- 190(1) Except as hereinafter provided (any Judicial) Magistrate specially empowered in this behalf by the Provincial Government on the recommendation of (High Court) may take cognizance of any offence.
(a)
(b)
(c) ' Upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed."
' It is worth mention that the proceedings have not been initiated against the accused and other co-accused upon the information received from any person other than police officer or upon the knowledge or suspicion. In this way, provisions of section 191, Cr.P.C. Are not applicable in the instant case. I am guided by the case-law cited as 2002 SCMR 63 , wherein Honourable Supreme Court of Pakistan held as under:-- "Ss.190, 191 and 173:--- Cognizance of offence by Magistrate while taking cognizance under section 190(1)(b), Cr.P.C. On a police report takes cognizance of the offence and not merely of a particular person charged in the report as an offender---Magistrate, therefore, can issue process against other persons who also appear to him to be concerned in the commission of the offence on the basis of the police report and other material placed before him and in doing so Magistrate does not act under clause (c) of section 190(1), Cr.P.C. And section 191, Cr.P.C. Is not applicable."
' Moreover, there is no specific provision of law available in the Criminal Procedure Code while taking cognizance in Sessions trial to provide the opportunity to exercise the option by an accused who is summoned by the Court to face the trial. The accused Saifullah entered into appearance on 30-3-2005 and the instant application has been filed by him on 28-5-2005. It seems that the instant application has been moved just to prolong the proceedings."
4. Before giving my verdict, I would like to refer case-law referred by the learned counsel for the petitioner.
5. The first case is Abdus Sattar Moola v. Crown PLD 1953 Federal Court 145. In this case, it was held that when a case is initiated on the basis of investigating in F.I.R., it cannot be suggested that a Magistrate or trial Court is acting under section 190(1)(c) of the Cr.P.C. Upon information received from a person other than . Police officer or upon his own knowledge or suspicion. Therefore, in such cases, section 191, Cr.P.C. Also is not applicable. For exact guidance the interested reader may read para.2 of pages 148 and 149. The other citation is 1997 PCr.LJ 953. In this case, the learned trial Court after recording of some evidence proceeded to issue process under section 190(1)(c), Cr.P.C.
Therefore, the High Court directed that procedure in section 191, Cr.P.C. Be followed. The third judgment is 1983 SCMR 16. In this judgment, Abdus Sattar Moola v. Crown PLD 1953 Federal Court 145 was reiterated and it was held, "a close scrutiny of the judgment in the last mentioned case has also the judgment relied upon by the learned counsel for the petitioner shows that the benefit of the errors committed by the trial Court taking cognizance of the offence under section 190(1)(c) of the Cr.P.C. Is not complying with the provision of section 191, Cr.P.C. Was made available only to the accused the cognizance of whose case was taken under section 190(1)(c), Cr.P.C. And not to any other accused."
6. I have failed to understand how the above three judgments referred by the learned counsel help him? In Abdus Sattar v. Crown, it was clearly laid down that when a case is instituted on the basis of a F.I.R., it cannot be treated as taking cognizance under section 190(1)(c) of the Cr.P.C. As it is contended by the learned counsel for the petitioner in instant case. As a matter of fact, in the instant case, the cognizance has been taken by the learned Additional Sessions Judge on material submitted before him through a final report of the Investigating Officer under section 173, Cr.P.C.
The learned Additional Sessions Judge has exercised his jurisdiction to take cognizance on basis of material collected by the Investigating Officer during the investigation. In such like cases whether it is a Magistrate who received the challan or a trial Court including Additional Sessions Judge is fully competent to take cognizance or refuse the same. Recently, a Full Bench of this Court in (Khizar Hayat v. Inspector-General of Police' Punjab PLD 2005 Lah. 470) has surveyed the whole case-law on the subject and held that police have no authority under the law to declare a person innocent or guilty. The Honourable Judges have also held that a Magistrate or a trial Court can form its opinion regarding sufficiency or otherwise of the evidence and material in order to decide whether to take cognizance of the offence and of the case or not, to summon any person to face a trial or not and to frame a charge against a person or not. The relevant portion is given on page 56 of the judgment [545 of the Report] which for convenience is reproduced as under:-- "We may clarify here for the benefit of all concerned that an Investigating Officer of a criminal case is not to render any opinion regarding guilt or innocence of an accused person and under the relevant statutory provisions contained in the Code of Criminal Procedure, 1898, the Police Order, 2002 and the Police Rules, 1934 he is only to collect all the relevant evidence and to submit his report and the collected evidence and material before the relevant Magistrate so that the Magistrate or the trial Court can then form their own independent opinions regarding sufficiency or otherwise of the evidence and material in order to decide whether to take cognizance of the offence and of the case or not, to summon any person to face a trial or not and to frame a charge against a person or not. We may further clarify that Column No.2 of the challan submitted in a criminal case is generally misunderstood and the same is erroneously being construed as meant for those accused persons who are found by the police to be innocent. It is generally being ignored that the said column of the challan is to contain the names of the absconding accused persons against whom challan is not being submitted because they could not be associated with the investigation and is also to contain the details of the accused persons being forwarded in custody or released on bond with or without sureties "
' Following above, it is declared and observed that the learned Additional Sessions Judge took cognizance of case F.I.R. No.100 of 2004 of Police Station, Ganda Singh Wala and not of persons. It is also held that the cognizance was taken under subsection (1)(b) of section 190, Cr.P.C. Section 191 is only attracted in cases where cognizance is taken under subsection (1)(c) of section 190, Cr.P.C.
Therefore, following the above discussion, this criminal revision is dismissed at limine stage and declared to be unfounded, frivolous and misconceived.
2005 YLR 2342 [Lahore] Before Mian Saqib Nisar and Syed Sakhi Hussain Bokhari, JJ Chaudhry MUHAMMAD IRSHAD---Appellant versus Chaudhry KHURSHID---Respondent Regular First Appeal No.56 of 1997, heard on 24th June, 2004.
Civil Procedure Code (V of 1908)--- ----0.VIII, R.6---Suit for rendition of account and damages---Set-off---Trial Court had dismissed the suit-Plaintiff was directed to pay Rs.3,07,729 to the defendant as claim of set-off---Plaintiff had claimed Rs.30,58,900 through rendition of accounts against the defendant---Validity--Plaintiff had produced three witnesses and himself appeared as his own witness-- Plaintiff had admitted about veracity of one of the witnesses and also admitted the market price of his commodity as it was at relevant time---Statements of witnesses were convincing and confidence-inspiring and they had corroborated each other---No material was brought on record to disbelieve the witnesses --- Evidence on record clearly showed that plaintiff, intentionally avoided to receive back his commodity because of the low market price---Plaintiff failed to produce any worthwhile evidence in support of his case and as such his version was baseless---Trial Court had rightly dismissed the suit of the plaintiff---Findings of the Trial Court were maintained in circumstances. [pp. 2344, 2345, 2346] A, B, C, D, E, F & G Malik Amjad Pervaiz for Appellant.
Taqi Ahmad Khan for Respondent. Date of hearing: 24th June, 2004.
' SYED SAKHI HUSSAIN BOKHARI, J.--This appeal is directed against the judgment dated 3-12-1996, passed by learned Civil Judge, Ist. Class, Pasroor, District Sialkot whereby, suit for recovery of Rs.30,58,900 through rendition of accounts, brought by appellant, was dismissed and claim of set off of the defendant/respondent was allowed and plaintiff-appellant was directed to pay Rs.3,07,729.
2. Relevant facts for the disposal of this appeal are that Ch. Muhammad Irshad, plaintiff-appellant, filed a suit for rendition of accounts against the respondent- defendant (Ch. Khurshid) and stated that he was farmer and that defendant owned Cold Storage (Ch. Khursheed Cold Storage) in village Bhilokey, Tehsil Pasroor. He further stated that in April/May, 1992, he stored 4087 bags of potatoes in the cold storage of the defendant @ Rs.55 per bag as rental. He had to take back potatoes till September, 1992 and to pay rental at that time but there was no written agreement regarding the same. The plaintiff maintained that on 29-9-1992 when he reached the cold storage of the defendant- respondent, he came to know that defendant had already sold his potatoes without any justification, therefore, he was bound to pay him price of the same. The plaintiff stated that he had obtained land measuring 160 acres in village Surangian Muktan, Tehsil Pasroor on lease and paid Rs.2,78,000 as lease money and he had to cultivate potato crop in September/October but due to sale of his potatoes by defendant, he could not cultivate the same, therefore, he suffered loss of Rs.3,20,000 and defendant was bound to pay him this amount. He further stated that when defendant-respondent sold his potatoes, market price of the same was Rs.700 per bag but he sold his potatoes at the rate of Rs.450 per bag, therefore, he was bound to pay him Rs.24,60,900. He claimed Rs.30,58,900 in toto. The respondent-defendant mentioned in written statement that the plaintiff stored 3981 bags and out of the same, he purchased 1000 bags from him at the rate of Rs.240 per bag. He further mentioned that for the remaining bags (2981), he had to pay Rs.60 per bag as rental. The defendant stated that he brought potatoes bags to his cold storage at his own expense and spent Rs.99,525 for the same. He further stated that he paid Rs.1 lac in advance to the plaintiff and Rs.4,50,000 through Cheque as loan and plaintiff promised to repay said amount after selling Sunflower Crop till 15th of June but he failed to pay the same. He averred that the plaintiff never came back to receive his potatoes bags and failed to pay their charges amounting to Rs.1,78,860, amount received in advance (Rs.1,00,000) and loan received through cheque (Rs.4,50,000) price paid for purchasing Gunny Bags (Rs.15,924), thus total Rs.8,44,309. He stated that on 29-9-1992, in the presence of at least twenty respectables, 2981 bags of Potatoes belonging to the plaintiff-appellant were sold at the rate of Rs.180 per bag to Muhammad Aslam, resident of Fruit Market, Gujranwala, along with his own potatoes (1000 bags) and now Rs.3,07,729 were outstanding against the plaintiff and defendant was entitled to get the same. On the pleadings of the parties, following issues were framed:--
(1) "Whether the plaintiff stored 4087 bags of potatoes including 1600 bags of potatoes seeds, 2487 bags of ration potatoes in the Cold Storage of the defendant up till 30-9-1992 at the rate of Rs.55 per bag as mentioned in para.No.2 of the plaint? OPP
(2) Whether on 27-9-1992 the plaintiff went to the Cold Storage of the defendant for lifting his material? OPP
(3) Whether defendant wrongly and without permission of the plaintiff sold the bags of potatoes as detailed in para.No.2 of the plaint? OPD
(4) Whether the plaintiff agreed to store 3983 bags of potatoes in the Cold Storage of the defendant and thereafter refused to complete the terms of the agreement? OPD
(5) Whether the defendant purchased 1000 bags of potatoes at the rate of Rs.240 per bag from the plaintiff and paid a sum of Rs.2,40,000 to the plaintiff? OPD
(6) Whether the defendant stored the potatoes bags of the plaintiff at his own expense by spending a sum of Rs.99,525? OPD
(7) Whether the plaintiff was to pay a sum of Rs.178,860 as the fare of 2981 bags at the rate of Rs.60 per bag to the plaintiff? OPD
(8) Whether the defendant gave Rs.1,00,000 as advance and Rs.4,50,000 as loan to the plaintiff on 8-3-1992 as alleged in para.No.2 of the written statement? OPD ( ) Whether the plaintiff failed to make the payment of fare of storage of the potatoes and also the sums given as advance as loan and thus the defendant. In the presence of respectables of the area sold 2981 bags of the potatoes of the plaintiff for Rs.5,36,580 and adjusted this amount towards his claim? OPD
(10) Whether after the adjustment of Rs.5,36,580 a sum of Rs.307,729 is still due from the plaintiff to the defendant? OPD
(11) Whether the defendant is entitled to special costs? OPD
(12) Relief."
The parties adduced evidence in support of their respective claims and after hearing the parties, the learned trial Court dismissed the suit brought by plaintiff-appellant, and he was directed to pay Rs.3,07,729 to defendant-respondent as claim of set off vide judgment dated 3-12-1996. Hence this appeal.
3. We have heard the arguments and perused the record.
4. As mentioned above, the appellant had filed suit for recovery of Rs.30,58,900 through rendition of accounts against the respondent/defendant. The case of appellant is that it was agreed between the parties that respondent could not sell potatoes before 30-9-1992.
5. The plaintiff examined P.W.1, Syed Mushtaq Hussain, P.W.2, Muhammad Younas, P.W.3, Ghulam Hussain and he himself appeared as P.W.4 in support of his version. On the other hand, defendant examined D.W.l, Muhammad Aslam, D.W.2, Noor Hussain, D.W.3, Khalid Basheer Bhatti, D.W.4, Arshad, D.W.5, Muhammad Ashraf, D.W:6 Ghulam Mustafa and he himself appeared as D.W.7. The plaintiff while appearing as P.W.4 admitted in cross- examination that Muhammad Aslam (purchaser of potatoes) was a gentleman. He (Muhammad Aslam) appeared as D.W.l and stated that he had purchased 40.Bags of potatoes @ Rs.180 per bag. He further stated that at the relevant time, rate of potatoes was from Rs. 150 to Rs.200 per bag and he had purchased potatoes from defendant on the last day of September, 1992 and that the same belonged to plaintiff. D.W.2 Noor Hussain, also corroborated his statement. The statements of D.Ws.1 and 2 are convincing and confidence- inspiring and there is nothing on record to disbelieve the same. D.W.3, Khalid Bashir Bhatti, deposed that he along with Ghulam Mustafa visited the house of Agha Ghulam Haider, where he (Ghulam Mustafa) asked the plaintiff to take back his potatoes, who promised to do so but, later on, failed to receive the same because he had no money with him. D.W.4 Arshad, stated that he brought 4,000 bags of potatoes from village Kaswa l and defendant paid him fare of the same. D.W.5, Muhammad Ashraf is 'Munshi' of Cold Storage of defendant. He too supported the version of the defendant. The defendant while appearing as D.W.7, clearly stated that the plaintiff agreed to store 5,000 bags of potatoes in his cold storage. He further stated that plaintiff obtained loan of Rs.45,000 from him but did not storq the potatoes, therefore, he brought 3981 bags of potatoes by a trolley and stored the same in his cold storage. He deposed that out of said potatoes bags, he purchased 1000 bags for Rs.2,40,000 and paid him the price of the same. The defendant stated that plaintiff had to store the potatoes at his own expense in his own bags but he did nothing, therefore, he purchased bags for Rs.1,00,000 and paid fare at the rate of Rs.4 per bag (totalling Rs. 1,600). He deposed that he had to charge Rs.60 per bag as rental but plaintiff failed to pay any amount and he had to get Rs.3,00,000 from him. The defendant also deposed that after the expiry of season, the plaintiff did not take back his potatoes, therefore, he sold the same and now Rs.3,07,729 were outstanding against him. It is clear from the evidence available on record that plaintiff failed to pay fare, amount spent by the defendant for purchasing gunny bags and rental for storing potatoes. He also failed to take back potatoes after the expiry of season, therefore, defendant was constrained to sell the same. It is clear from the record that plaintiff intentionally avoided to receive back potatoes due to low market price. Even otherwise, plaintiff* has failed to produce any worthwhile evidence in support of his case. His version is baseless. So, in the circumstances of the case, we find that learned trial Court has rightly dismissed the suit brought by plaintiff-appellant.
' The findings recorded by learned trial Court on all the issues are accordingly affirmed.
6. For what has been discussed above, we are of the considered opinion that his appeal has no force and the same is accordingly dismissed.
' No order as to costs.
Appeal dismissed.
2005 YLR 2346 [Peshawar] Before Ejaz Afzal Khan, J AMBAR SHAH---Appellant versus THE STATE---Respondent Jail Criminal Appeal No.112 and Criminal Miscellaneous No.77 of 2005, decided on 11th April, 2005.
Control of Narcotic Substances Act (XXV of 1997)--- ----S. 9---Appreciation of evidence---All witnesses consistently deposed that accused was apprehended on the spot pursuant to a raid and that Charas weighing 2016 grams was recovered from a shopping bag held by him in his right hand---Samples taken from the suspected substance were sent to Forensic Science Laboratory which were found to contain Charas--- Charge against accused, in circumstances stood proved beyond any shadow of doubt---Finding of conviction recorded by Trial Court against accused could not be interfered with, in circumstances, but since quantum of sentence had to be proportionate to the quantum of substance recovered, maintaining conviction of accused, sentence awarded to him by Trial Court was reduced from 7 years R.I. To 2 years R.I and fine from Rs.1,00,000 to Rs.10,000 accordingly. [p. 2347] A Aftab Khan for Appellant.
Akhtar Naveed Khan Dy. Advocate-General for the State.
Date of hearing: 11th April, 2005.
' Appellant who was proceeded against in the Court of learned Judge Special Court on the charge of having been found in possession of 2 K.Gs. Of Charas in a case registered against him under section 9 C.N.S. Act vide F.I.R. No.635 dated 13-9-2001 Police Station, Nowshera Cantt. And on its proof was convicted and sentenced to 7 years R.I. With a fine of Rs.1,00,000 or in default to undergo 6 months' S.I. Vide judgment dated 23-12-2004, preferred the instant appeal to assail his conviction and sentence.
2. The learned counsel appearing on behalf of the appellant by highlighting various minor and insignificant discrepancies tried to make out a case for acquittal of the appellant but when sensed that his arguments in this behalf are not expected to deliver goods he straightaway asked for reduction in sentence by submitting that since the magnitude of sentence is to be in proportion to the magnitude of the crime the sentence of 7 years with a fine of Rs.1,00,000 would be too harsh as punishment for possessing 2 K.Gs of charas.
3. As against that the learned D.A.-G. Appearing on behalf of the State argued that the evidence on record besides being consistent and confidence-inspiring is not suffering from any infirmity as could give rise to any doubt, therefore, he was rightly convicted by the learned trial Court. However, he could not convincingly resist the argument of the learned counsel for the appellant for reduction in sentence.
4. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
5. A perusal of the evidence on record would reveal that all the witnesses consistently deposed that the appellant was apprehended on the spot pursuant to a raid and that charas weighing 2016 grams was recovered from a shopping bag held by him in his right hand. The .Samples taken from the suspected substance were sent to F.S.L. Which were found to have contained charas. When this is the state of evidence, we have no doubt in our mind that the charge against him stands proved beyond any shadow of reasonable doubt. Therefore, we will not like to interfere with the finding of conviction. But since the quantum of sentence has to be proportionate to the quantum of the substance recovered, the argument of the learned counsel for the appellant for reduction in sentence is not without force, therefore, we while maintaining his conviction would reduce the sentence of imprisonment from 7 years' R.I. To 2 years' R.I. And that of fine from. Rs.1,00,000 to Rs.10,000 or in default to undergo S.I. For 3 months.
' With the above modification, this appeal is dismissed.
Order accordingly.
2005 YLR 2347 [Lahore] Before Syed Jamshed Ali, J MUHAMMAD ASLAM---Appellant versus JAMIL AHMED---Respondent Civil Revision No.1127-D of 1998, heard on 21st July, 2004.
(a) Punjab Pre-emption Act (IX of 1991)--- ----S.6(2)---Constitution of Pakistan (1973), Art. 203-D---Zarar and Zarorat---Plaintiff had not pleaded "Zarar" and Zarorat--- Section 6(2) of the Punjab Pre-emption Act, 1991 was held to be repugnant to the Injunctions of Islam by the Federal Shariat Court in the judgment dated 30-5- 1991---Such order was appealed againsi---By virtue of Article 203-D of the Constitution its operation stood suspended---Section 6(2) of the Act remained on the Statute book till 31-12-1993- --Present suit was filed on 2-7-1992 and, therefore, the requirement to comply with the provisions of S.6(2) could not be dispensed with. [p. 2349] A Haji Rana Muhammad Shabbir Ahmad Khan v.
Government of Punjab Province, Lahore PLD 1994 SC 1 quoted Mst. Bashiran Bibi v. Muhammad Kashif Khan and others PLD 1995 Lah. 200 ref.
(b) Punjab Pre-emption Act (IX of 1991)- 13---Talb-i-Muwathibat---Making of Talbs---Pleadings---Time, place, source of knowledge--- Names of two witnesses were not mentioned in the plaint as witnesses of "Talb-i-Muwathibat" but were referred to as the witnesses of Talb-i-Ishhad---Time of information of the sale was stated to be 12/1 noon---One of the witnesses . Was brother of plaintiff and Government employee---Evidence of witnesses regarding making of Talb-i-Muwathibat by the plaintiff was falsified and it was not proved that Talb-i-Muwathibat was at all made---No merit being in revision petition same was dismissed. [p. 2350] B & C Rana Farman Ali Sabir for Petitioner.
Mian Ghulam Rasul for Respondent.
Dates of hearing: 20th and 21st July, 2004.
' This is a revision petition by the pre-emptor, whose suit has been dismissed in appeal although it was decreed by the learned trial Court. The relevant facts are briefly noted hereunder.
2. Vide registered sale-deed dated 24-3-1992 Muhammad Amin, sold the land in dispute measuring 12 Kanals and 2 Marlas in favour of Jameel Ahmad, respondent. Muhammad Aslam, the petitioner herein, claiming superior right of pre-emption on the ground, inter alia, of being a co- sharer pre-empted the said sale. It was averred that the plaintiff-petitioner came to know of the sale on 14-5-1992, he made immediate demand which was followed by the notice of Talb-i-Ishhad.
3. The suit was contested on a number of grounds including the pleas of estoppel and waiver. It was averred that the plaintiff pre-emptor knew about the transaction even before the sale and that he had not fulfilled the requirements of "the Talbs" in accordance with law.
4. Necessary issues were framed and the suit was tried. The parties led evidence in support of their respective pleas. Vide judgment dated 22-11-1994 the suit filed by the petitioner was decreed by the learned trial Court with the finding that he had superior right of pre-emption and that the "Talbs" had duly been made. Issue No.4 covered the controversy whether the suit had not been filed on the basis of necessity. {{URDU TEXT}}According to the finding of the learned trial Court, onus to prove the issue was on the defendant but no evidence was produced by him.
5. The respondent filed an appeal before the learned District Court which was allowed vide judgment and decree dated 17-2-1998. The view taken by the learned first Appellate Court was that the petitioner/plaintiff had not pleaded {{URDU TEXT}}which was necessary under section 6(2) of the Punjab Pre-emption Act, 1991. In this approach the judgment of this Court in Mst. Bashiran Bibi v.
Muhammad Kashif Khan and others PLD 1995 Lahore 200 was relied upon. Section 31(1) Punjab Pre- emption Act was also relied upon, according to which, it was incumbent on the officer registering the sale-deed or attesting the mutation to give public notice within two weeks. Reliance was also placed on Muhammad Ramzan v. Lal Khan 1995 SCMR 1510. It was observed that the plaintiff had never stated that he had no notice from the Registering Authority. Thus, it was presumed that the plaintiff-petitioner had knowledge of the registration of the sale-deed and, therefore, he failed to "fulfil the demands" as required by section 13 of the Punjab Pre-emption Act, 1991.
6. The learned counsel for the petitioner contends that section 6(2) of the Punjab Pre-emption Act was declared as repugnant to the Injunctions of Islam by the learned Federal Shariat Court vide judgment dated 30-5-1991 which was affirmed by the Honourable Supreme Court in Haji Rana Muhammad Shabbir Ahmad Khan v. Government of.Punjab Province, Lahore PLD 1994 SC 1. Therefore, it was not necessary to plead {{URDU TEXT}} to avoid {{URDU TEXT}} in the plaint. Reliance was placed on Abdul Malik v. Muhammad Iqbal 1994 CLC 788. As far as the case of Muhammad Raman, supra is concerned, his contention was that it was nobody's case that charges for the notice contemplated by subsection (3) of section 31 of the Punjab Preemption Act, 1991 had been recovered by the Sub-Registrar at the time of registration of the sale-deed nor that the Sub-Registrar had displayed the notice of the sale as required by subsection (2) of section 31 of the Punjab Pre-emption Act, 1991. He next contended that testimony of P.W.2 and P.W.3, besides the statement of the plaintiff clearly established that Talb-i-Muwathibat had duly been made. A notice through registered post evincing the " Talb-iIshhad" was addressed to the vendee which was received by his real brother as deposed by P.W.1 as vendee and his brother were living together.
7. On the other hand the learned counsel for the respondent submitted that the matter stands concluded by concurrent findings of the learned two Courts. He contended that in accordance with the judgment of the learned Shariat Appellate Bench in the case of Haji Rana Muhammad Shabbir Ahmad Khan, supra, the date from which the judgment of the learned Shariat Appellate Bench, inter alia, in respect of section 6(2) was effective was 31st Decehther, 1993 while the present suit was filed on 2-7-1992 and, therefore, the rule laid down in the case of Abdul Malik, supra, was not attracted. He relied on the case of Muhammad Ramzan, supra. He next contended that the petitioner had not pleaded the time, place and source of his knowledge of the sale and the witnesses in whose presence "Talb-i-Muwathibat" was made. The two witnesses referred to in the plaint were the witnesses of the notice of Talb-i-Ishhad. He, therefore, submits that irrespective of the defect of non-compliance of the provisions of section 6(2), the Talb-iMuwathibat was not proved to have been made. He particularly relied on the fact that the vendor was the cousin of the preemptor, who had informed the petitioner of the sale.
8. The submissions made by the learned counsel for the parties have been considered. Although, section 6(2) of the Punjab Pre-emption Act was held to be repugnant to the Injunctions of Islam by the learned Federal Shariat Court in the judgment dated 30-5-1991, it was appealed against.
Therefore; by virtue of Article 203-D of the Constitution of Islamic Republic of Pakistan, its operation stood suspended and in accordance with the rule laid down by the learned Shariat Appellate Bench in the case of Haji. Rana Muhammad Shabbir Ahmad Khan, section 6(2) remained on the statute book till 31-12-1993. In the present case the suit was filed on 2-7-1992 and, therefore, the requirement to comply with the provision of section 6(2) could not be dispensed with. The rule laid down by this Court in the case of Mst. Bashiran Bibi was, therefore, attracted. It may also be noted that in the case of Mst. Bashiran Bibi, supra, this Court also noted that the judgment of the learned Shariat Appellate Bench was effective from 31-12-1993 and it was prospective. In the said case also preemption suit was filed before the judgment of the learned Shariat Appellate Bench became effective. In the case of Abdul Malik, supra, amendment allowed by the learned trial Court to add averment of {{URDU TEXT}} was assailed before this Court and on the basis of judgment of the learned Shariat Appellate Bench, it was held that it was no more necessary.
9. As far as the case of Muhammad Ramzan, supra, is concerned, the Honourable Supreme Court found that Talb-i-Muwathibat had not been made by the plaintiff pre-emptor. However, even if, the suit of the petitioner could not be dismissed on the basis of the provisions of section 31(2), the record shows that there was no satisfactory evidence to establish "Talb-i-Muwathibat".
10. Since the petitioner had not pleaded time, place, source of knowledge of sale and the persons in whose presence " Talb-iMuwathibat" was made the evidence produced by the petitioner was required to be carefully examined. In support of the assertion that he came to know of the sale on 14-5-1992. Muhammad Akram, real brother of the petitioner was examined as P.W.2 and Muhammad Yaqoob was examined as P.W.3. They stated that on 14-5-1992 when the plaintiff was irrigating his fields, the respondent vendee came from the Bus stand and informed the petitioner of the sale on which he demanded return of land from the respondent otherwise, he will file a pre- emption suit. The names of these two witnesses were not mentioned in the plaint as the witnesses of " Talb-iMuwathibat", although they were referred to as the witnesses of Talb-i-Ishhad. This omission is significant. The time of information of the sale stated by these two witnesses was 12/1 Noon. Apart from the fact that P.W.2 was the real brother of the plaintiff, P.W.3 was in the Government employment and claimed that on 14-5-1992, he was on leave, P.W.2 also admitted that he does not remember the dates and the plaintiff had reminded him of the date of knowledge of sale. The petitioner stated in cross-examination that he was informed by the vendor himself.
Although, he did not indicate the point of time when the vendor had informed him. He, however, admitted that during the previous year his turn for water was in the night while both the P. Ws.
Stated that it was 12-1 Noon, when the information of sale was passed on to the petitioner.
Therefore, the evidence of P.W.2 and P.W.3, regarding making of Talb-i-Muwathibat by the petitioner stands falsified and they could not, thus, be believed. It is also in the evidence of the petitioner (as P.W.4), that the plaintiff resides in a different village while the vendee lived in a different village. Jameel Ahmad, the vendee was examined as D.W.S. He categorically stated that he had never informed the plaintiff of the sale on 14-5-1992. In view of the evidence produced in the case it was not proved that Talb-i-Muwathibat was at all made by the petitioner as alleged.
11. Accordingly, there is no merit in this revision petition which is dismissed.