' QAZI FAEZ ISA, C J.---Through this petition Pakistan Petroleum Limited, a public limited company, has assailed the orders dated 18th June, 2010, 29th June, 2010 and 30th June, 2010 (hereinafter collectively referred to as "the impugned orders") passed by the respondent No,1, the Director- General Mines & Minerals, Government of Balochistan.
2. The petitioners were granted a Prospecting License bearing No, DGMM/PL-Iron Ore (109)/4284-92 dated 12 June, 2004 enabling it to prospect for iron ore over an area of 2,066.12 acres in Pachin Koh, Nokundi, District Chagai of Balochistan pursuant to Rule 7(1) of the Balochistan Mineral Rules, .2002 (hereinafter "the Rules"). Subsequently, pursuant to Rule 46(2) of the Rules, Mining Lease No,ML-Iron Ore (5) in respect of the said area was executed in favour of the petitioner by the Government of Balochistan which came into effect from 1st January, 2007 and was "for the term of 20 years." On 7th June, 2010 the respondent No,1 issued a Show-Cause Notice (hereinafter "the Notice") to the petitioner "to show cause as to why your leases in question should not be cancelled forthwith" since the same was "unworked and unutilized since long" which according to the Notice was a "serious violation of rule 90" of the Rules. The Notice sought cancellation of Mining Lease No, ML-Iron Ore (5) and two other Mining Leases granted to the petitioner and granted 30 days to the petitioner, from the date of issuance of the Notice, to submit reply. However, before the expiry of the said 30 days period the respondent (sic.)
"Subject: ISSUANCE OF REVISED/ REDUCED PLAN OF 929.75 ACRES IN RESPECT OF ML-IRON ORE (5).
' With the prior approval of the Mines Committee, the undersigned is pleased to enclose herewith four (4) copies of the revised/ reduced plan of covering 1136.37 acres situated near Pachin Koh, District Chagai, after excluding the already granted area of Messrs Shahnawaz Pumice for Pumice and Iron Ore in respect of your granted Mining Lease No, ML-Iron Ore (5) for Iron Ore.
' You are directed to return one copy out of the attached plans duly signed in token of having accepted the same alongwith a Challan of Rs,1000 as cost of plan and a Demarcation Certificate signed and issued by the Registered Mining Survey in respect of the revised/reduced area within a period of one month. The other terms and conditions of this office allotment letter No,ML-Iron Ore
(5) 2985-94 dated 26-3-2007 shall remain unchanged."
' From the aforesaid letter it appears that an area of 929.75 acres from the petitioner's Mining Lease No,ML-Iron Ore (5) was given to Messrs Shahnawaz Pumice, respondent No,2, before the expiry of the stipulated 30 days Notice period, thus reducing the petitioner's area to 1,136.37 acres. From the documents on record it appears that on 29th May, 2010 the respondent No,1 had offered to issue a prospecting licence in respect of an area of 929.75 acres to the respondent No,2 provided the amounts mentioned therein were deposited, and on 18th June, 2010 Prospecting License No,PL-Iron Ore (322) 5075-80 was issued to the respondent No,2 by respondent No,1 in respect of 929.75 acres.
A few days thereafter the respondent No,1 issued letter dated 30th June, 2010 permitting respondent No,1 "to start Prospecting/Mining operations for Iron Ore" over an area of 929.75 acres in the said area.
3. The petitioner being aggrieved by the impugned orders preferred an appeal on 8 July, 2010 under Rule 70 of the Rules before the designated appellate authority, i,e. Secretary Mines and Minerals, Government of Balochistan the respondent No,3 herein. The appeal was accompanied with a stay application. The appeal and stay application were taken up on 22nd July, 2010, on which date notices were issued to respondents Nos.1 and 2 for 29th July, 2010, but no order was passed on the stay application and the case was fixed for 2nd August, 2010, when again no orders were passed and it is stated that the appeal was adjourned for an indefinite period.
4. The respondents Nos.1 and 3 filed joint comments and the fact of the issuance of the Prospecting License and the Mining Lease No, ML-Iron Ore (5) in favour of the petitioner was admitted. However, the issuance of the Notice was justified and it was further stated that the impugned orders were "in accordance with rules." The respondent No,2 also filed his comments raising a number of legal objections and justified the actions of the respondent No,1 and supported the impugned orders.
5. Mr. Riaz Ahmed learned counsel for the petitioner assailed the impugned orders inter alia on the following grounds: (a) admittedly Mining Lease No, ML-Iron Ore (5) had been issued and valuable rights had accrued in favour of the petitioner which could not be arbitrarily taken away; (b) there was no justification for issuance of the Notice; (c) having issued the Notice, wherein 30 days was provided to the petitioner to submit reply, no action could have been taken before the expiry of the stipulated 30 days and before providing the petitioner with a hearing; (d) the issuance of the Notice was mala fide as a substantial area from the petitioner's said Mining Lease had already been carved out and given to the respondent No,2; (e) that the issuance of the Notice was a mere ruse to cover the illegal actions that had already been taken by the respondent No,1 on the behest of respondent No,2 and (f) the petitioner had made huge investments as detailed in the petition amounting to over Rupees 153 million. Reliance was also placed upon various provisions of the Rules and on the following reported judgments of the Hon'ble Supreme Court: Hazara (Hill Tract)
Improvement Trust v. Qaisar Elahi, 2005 SCMR 678 and M.D. The Bank of Punjab v. Shahzad Hussain, 2006 SCMR 1023.
6. Mr. Salahuddin Mengal, learned Advocate-General opposed the filing of the petition since the appeal was pending adjudication before the respondent No,3. Mr. Ayaz Zahoor, learned counsel for the respondent No,2, supported the contention of the learned Advocate General and further alleged that the respondent No,2 had applied for prospecting pumice in an area of 1,549.58 acres in the year 1992, which application was accepted on 22 March, 2003 by the Mining Committee by reducing the area to 929.75 acres, but since the offer letter was not accepted the same was withdrawn on 9th August, 2005, whereupon the respondent No,2 filed an appeal before respondent No,3 which was allowed by consent. Subsequently Prospecting License for pumice was issued to the respondents Nos.2 on 13th September, 2005 over an area of 929.75 acres, which was followed by a Mining Lease No,ML-Pumice (6) issued in respect of pumice on 12th May, 2010. On 19th May, 2010 the respondent No,2 sought permission to also mine iron ore in the said area and on 29th May, 2010 the respondent No,1 offered a prospecting licence in respect of an area of 929.75 acres to the respondent No,2 provided the amounts mentioned therein were deposited and on 18th June, 2010 Prospecting License No,PL-Iron Ore (322) 5075-80 for iron ore was issued to the respondent No,2 by respondent No,
1. A few days thereafter the respondent No,1 issued letter dated 30th June, 2010 permitting respondent No,1 "to start Prospecting/Mining operations for Iron Ore" over the an area of 929.75 acres.
7. That the date (13th September, 2005) on which the respondent No,2 was issued Prospecting Licence for prospecting for pumice in respect of 929.75 acres the petitioner already held a Prospecting License for prospecting for Iron Ore, which had been issued to the petitioner on 12 June 2004. The petitioner's Prospecting License enabled the petitioner to prospect for iron ore over an area of 2,066.12 acres in Pachin Koh, Nokundi, District Chagai, Balochistan. A Mining Lease in respect of iron ore over the said area of 2,066.12 acres was executed in favour of the petitioner by the Government of Balochistan "for the term of 20 years," commencing from 1st January 2007, whereas the. Mining Lease in respect of pumice was executed in favour of the respondents Nos.2 on 12th May, 2010. Accordingly, both the Prospecting Licence and the Mining Lease were issued to the petitioners before issuance/execution of similar documents in favour of the respondent No,2.
Moreover, and significantly the respondent No,2 was granted Prospecting Licence and Mining Lease only in respect pumice, and not iron ore.
8. The respondent No,2 submitted an application on 19th May, 2010 to the respondent. No,1 claiming that, "During the prospecting of pumice there were frequent showings of iron ore and that might indicate significant iron ore deposits underneath" and as such requested that he "may be allowed to explore and mine the iron ore." The respondent No,2 promptly processed the said application of the respondent No,2 and issued him an offer letter dated 29th May, 2010 and sought deposit of applicable fees. Thereafter on 18th June, 2010 Prospecting Licence No,PL-Iron Ore (322) 5075-80 for iron ore, which has been impugned herein, was issued to respondent No,2, and the same was followed by letter dated 30th June, 2010, also impugned herein, permitting respondent No,1 "to start Prospecting/Mining operations for Iron Ore" over an area of 929.75.
9. That the Notice addressed to the petitioner stated as under: "Subject: SHOW-CAUSE NOTICE.
' It has been observed with great concern that you have kept your granted areas under ML-Iron Ore (1), ML-Iron Ore (4), ML-Iron Ore (5) covering 13660.17 acres, 2551.49 acres, 2066.12 acres situated near Dilband, Mashki Chah, and Pachin Koh District Mastung and Chagai, for Iron Ore unworked and unutilized since long which is a serious violation of rule 90 of the Balochistan Mineral Rules, 2002.
' You are, therefore, directed to show cause as to why your leases in question should not be cancelled forthwith. Your reply must reach to this office within 30 days of the date of issue of this notice."
' The Notice threatened cancellation inter alia of the Mining Lease No,ML-Iron Ore (5) covering 2,066.12 acres and gave the petitioner 30 days to submit a reply, but before the time granted to the petitioner had expired and without hearing the petitioner the respondent No,1 had already issued a prospecting license to the respondent No,2 in respect of 929.75 acres from the petitioner's said land. It will be useful to reproduce Rule 90 pursuant to which the said Notice was stated to have been issued:-- "90. Keeping the Area un-worked/unutilized.---(1) Mining concession holder shall carry out mining operations in a proper skilful and workman like manner over the granted concession. If at any time it is found on inspection that the concession holder is not conforming to the provisions of Prospecting/Exploitation Scheme or has not been able to utilize the entire allotted area or has kept the allotted areas idle for years together continuously, the Licensing Authority shall take action for cancellation of the un-worked/unutilized area and grant the same under the provisions of these rules.
(2) Before taking action under the above rule the concession holder shall be provided opportunity of being heard to explain his position."
Accordingly, the respondent No, 1 not only violated the terms of his own Notice, but also violated the provisions of Rule 90 by not providing the petitioner an opportunity to be heard.
10. That in any event the principle, that, no one should be condemned unheard (referred to in Latin as audi alteram partem) is by now well entrenched in the jurisprudence of Pakistan and even if the same is not specifically provided in the law is deemed to be a part thereof. In this regard the Hon'ble Supreme Court in the Hazara Improvement Trust case (supra), held, that:- "The principle of natural justice enshrined in the maxim "audi alteram partem" is one of the most important principles and its violation is always considered enough to vitiate even most solemn proceedings. Reference in this behalf may be made to the case of Pakistan Internation Airlines Corporation and others v. Nasir Jamal Malik and others 2001 SCMR 934. In this judgment it has been held that where adverse action is contemplated to be taken against the person/ persons, he/ they has/have a right to defend such action, notwithstanding the fact that the statute governing their rights does not contain provision of the principle of natural justice and even in absence thereof it is to be read/considered as a part of such statute in the interest of justice."
11. Moreover, the action of awarding Prospecting License No,PL-Iron Ore (322) 5075-80 for iron ore and permitting respondent No,1 "to start Prospecting/Mining operations for Iron Ore" in respect of 929.75 acres, which formed part of the land in respect whereof the petitioner had been granted Mining Lease No,ML-Iron Ore(5) was also in violation of the specific covenant made by Governor, the issuing authority, in the said Mining Lease, reproduced hereunder:-- "Clause 55. For quiet enjoyment.- The Lessee paying the rent and royalties hereby reserved and observing and performing all the covenants and provisions herein contained and on his part to be observed and performed shall and may peaceably and quietly hold and enjoy the rights and privileges hereby demised for and during the term hereby granted without any unlawful interruption from or by the Governor or any person rightfully claiming authority,"
12. That the action of the respondent No,1 in granting to the respondent No,2 a prospecting licence in respect of the leased land of the petitioner on the twelfth day of the issuance of the Notice, before the stipulated period of 30 days for submitting a reply to the Notice had expired and before granting a hearing to the petitioner smacks of mala fide, bias and favouritism. In issuing the prospecting licence to the respondent No,2 from the leased land of the petitioner, the respondent No,1 violated the Rules and the terms of the Mining Lease executed in favour of the petitioner and the covenant contained therein enabling the petitioner to "peaceably and quietly hold and enjoy the rights and privileges hereby demised for and during the term hereby granted without any unlawful interruption."
13. That in the case of Muhammad Bashir v. Abdul Karim, PLD 2004 SC 271, the Hon'ble Supreme Court held that where a statutory functionary acts mala fide or in partial, unjust and oppressive manner ample power vests in the High Court to issue appropriate directions under Article 199 of the Constitution of Pakistan. It would be appropriate to reproduce the following passages from the said judgment: "It is well-settled by now that "Article 199 casts an obligation on the High Court to act in aid of law, protect the rights of the citizens within the framework of the Constitution against the infringement of law and Constitution by the executive authorities, strike a rationale compromise and a fair balance between the rights of the citizens and the actions of the State functionaries, claimed to be in the larger interest of Society. This power is conferred on the High Court under the Constitution and is to be exercised subject to Constitutional limitations. The Article is intended to enable the High Court to control executive action so as to bring it in conformity with the law. Whenever the executive acts in violation of the law, an appropriate order can be granted which will relieve the citizen of the effects of illegal action? It is an omnibus Article under which relief can be granted to the citizens of the country against infringement of any provision of law or of the Constitution. If the citizens of this country are deprived of the guarantee given to them under the Constitution, illegally or, not in accordance with law, then Article 199 can always be invoked for redress."
"There is ample power vested in the High Court to issue directions to an executive authority when such an authority is not exercising its power bona fide for the purpose contemplated by the law or is influenced by extraneous and irrelevant considerations. Where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has ample power to grant relief to the aggrieved party."
14. That the issuance of the Prospecting License No, PL-Iron Ore (322) 5075-80 for iron ore and permitting respondent No,1 "to start Prospecting/Mining operations for Iron Ore" in respect of 929.75 acres that had been leased to the petitioner also infringed Rule 75(3)(b), since D the said provision stipulates that, "the holder of a prospecting licence shall not exercise any rights" in respect of a "mining area," which, as defined in Rule 2 (zh), "means an area of land, including its lateral limits, to which a mining lease relates."
15. That the aforesaid transgressions and violations reveal that the respondent. No,1 who is required to ensure the enforcement of the Rules and compliance with terms of the prospecting licences/mining leases, has instead demonstrated by his conduct and the impugned orders, that he himself is violating the same, and further that he has effectively acted as the agent of the respondent No,2. Such actions destroy the confidence of investors and public in an important public functionary and will dissuade the much needed investment in the nascent mining industry, which is one of the major and foremost industries of the Province of Balochistan. Needless to state that the mining industry requires heavy capital investment, which is recovered and profits reaped after a long gestation period. Investments made in the mining industry, which is labour intensive, also help to generate employment and the payment of royalties and taxes contribute to the economic well-being of the people. It is thus the duty of public functionaries to act strictly in accordance with law and in a just, fair and transparent manner. Arbitrariness, capriciousness, favoritism and nepotism would stifle the growth of the mining industry.
16. Article 18 of the Constitution of Pakistan lists as a Fundamental Right a citizen's right "to conduct any lawful trade or business," which Right is infringed if he is prevented, as in the present case, from utilizing the Mining Lease executed in his favor by the Province, and is subjected to arbitrary and/or capricious action by a public functionary in contravention of the applicable Rules and the terms of the said Mining Lease. The said Right can be enforced pursuant to Article 199(1)(c) of the Constitution.
17. Article 4 of the Constitution of Pakistan enshrines the right "to be treated in accordance with law" and safeguards any action detrimental to a person's property taken except in accordance with law. The official respondents have not dealt with the petitioner in accordance with the Rules'
(supra) and have proceeded against the Mining Lease that was granted to the petitioner contrary to the terms thereof. Accordingly, appropriate declarations can be made and directions issued respectively pursuant to sub-paragraph (ii) and (i) of paragraph (a) to sub-Article (1) of Article 199 of the Constitution.
18. That it was expected that the respondent No,3, before whom the petitioner had filed the appeal along with a stay application, would have acted promptly in this case of blatant violation of the Rules, and in respect of a matter in which the respondent No,1 had contravened the terms of the Mining Lease and also ignored basic concepts of natural justice, but instead the respondent No,3 virtually sat on the appeal preferred before it and did not deem it necessary to pass any orders on the stay application, despite being specifically vested with powers to grant a stay order under Rule 70(5) of the Balochistan Mineral Rules, 2002. Moreover, the filing of joint comments by the respondent. Nos.1 and 3 in the petition preferred before this Court was to say the least, most unusual since the respondent No,3 was the appellate authority and an appeal had been preferred before the respondent No,3 against the impugned orders of the respondent No,l. In such comments the impugned orders were upheld and it was stated that the same, "were in accordance with rules."
Therefore, the respondent No,3 too has, without hearing the petitioner and the pending appeal, effectively decided the same against the petitioner.
19. In view of the reasons stated above we declare that the impugned orders dated 18th June, 2010, 29th June, 2010 and 30th June, 2010 passed by the respondent No,1 to have been passed in violation of the Balochistan Mining Rules, 2002, in contravention of the terms of the Mining Lease held by the petitioner and in disregard of the principles of natural law and as such to be of no legal effect and void ab initio. Consequently the appeal filed by the petitioner before the respondent No,3 against the said impugned orders has become infructuous. However, if the respondent No,1 intends to proceed against the petitioner for any alleged contravention of the Balochistan Mineral Rules, 2002 and/or the infringement of the terms of any Mining Lease granted to the petitioner the respondent No,1 is directed to act strictly pursuant to applicable provisions of the Balochistan Mineral Rules, 2002 and terms of the said Mining Lease(s) and afford to the petitioner sufficient opportunity of a hearing.
' The petition is allowed in the aforesaid terms with special costs of Rs,5,000 (five thousand only), which are to be borne by the respondent No,1.
Petition allowed.
PLD 2011 Quetta 11 Before Qazi Faez Isa, C J ABDUL HAMEED---Petitioner versus JUDICIAL MAGISTRATE and 2 others---Respondents Criminal Miscellaneous Quashment No,36 of 2010, decided on 23th December, 2010.
(a) Balochistan Sea Fisheries Ordinance (IV of 1971)- ----Ss. 3 & 9---Balochistan Sea Fisheries Rules, 1971---Balochistan Sea Fisheries Act (X of 1994), Ss.9, 9-A & 9-B---Criminal Procedure Code (V of 1898), S.517---Illegal fishing---Trial Court sentenced the accused to pay the fine of Rs,15000---Confiscated trawler and fishing equipment, except the prohibited fishing net, were returned to the, accused---Additional Sessions Judge dismissed revision seeking restoration of the said fishing nets---Validity---Trial Court was empowered to sentence the accused to imprisonment and order confiscation of the fishing equipment, rather, confiscation of the fishing equipment was mandatory under S.9 of Balochistan Sea Fisheries Ordinance, 1971---Prohibited fishing net being an instrument of offence, could be ordered to be confiscated even in the absence of any specific provision to that effect---Trial Court was empowered under 5.517, Cr.P.C. To order disposal by destruction, confiscation or delivery to any person of the property used for the commission of any offence---Return of the prohibited fishing net "gujja" to the accused would result in misuse of the same for committing crimes under the Balochistan Sea Fisheries. Ordinance, 1971---Illegal fishing was a serious threat to marine environment and fish population---Despite their confession, accused were not sentenced to imprisonment, instead, lesser punishment of fine was imposed on them---Vessel used in the commission of offence was also restored to them---Use of prohibited nets was a crime against society and nature---No case for invoking inherent powers of High Court had been made out--- Petition was dismissed with order of destruction of confiscated prohibited nets in order to prevent the reuse of such nets. [pp. 16, 17] A, B, C, D, E & F
(b) Criminal Procedure Code (V of 1898)--- ----S. 517---Power of Trial Court to dispose of property used in commission of any offence---Trial Court was empowered under S.517, Cr.P.C. To order disposal by destruction, confiscation or delivery to any person of the property used for the commission of offence. [p. 16] B Criminal Revision No,6 of 2009 distinguished. Jahanzaib Jadoon for Petitioner. Liaquat Ali for the State.
Date of hearing: 27th August, 2010.
' QAZI FAEZ ISA, C.J.---A Constitutional Petition was filed against the order dated 15th September, 2009 passed by the learned Judicial Magistrate Pasni and order dated 14th November, 2009 passed by the learned Additional Sessions Judge Gwadar. However, on 22nd July, 2010 learned counsel for the petitioner requested for conversion of the petition into a criminal miscellaneous petition under .Section 561-A Criminal Procedure Code ("Code") and the said request was allowed and the office was directed to allot criminal miscellaneous petition number to the case.
2. Before facts of the case as stated in the petition are that on 18th September, 2009 the authorities of Ormara Fisheries found that the crew of fishing trawler 'Shahra-e-Madina' number B-17623 was within four nautical miles from the coast of Ormara and was fishing by using prohibited fishing nets ('gujja') and arrested the captain and the driver of the said trawler and seized the trawler along with equipment, including the said fishing nets. Consequently F.I.R. No,3 of 2009 was lodged by the Inspector Fisheries Ormara, Government of Balochistan.
3. Challan was submitted before the Judicial Magistrate Pasni and the nominated accused pleaded guilty, accordingly vide order dated 15th September, 2009 the petitioner was convicted and sentenced to pay fine of Rs,15,000 (Rupees fifteen thousand only) and the said trawler along with all its equipments except the prohibited fishing nets ('gujja') returned to them, whilst the prohibited nets ('gujja') were confiscated in favour of the State. Against the order of the learned Judicial Magistrate criminal revision was preferred before the Additional Sessions Judge Gwadar, who vide order dated 14th November, 2009 dismissed the same and maintained the order passed by the learned Judicial Magistrate Pasni. It is against the said orders dated 15th September, 2009 and 14th November, 2009 (hereinafter, "the impugned orders") that the petitioner has submitted this petition and sought that this court invoke its inherent powers pursuant to section 561-A of the Code, which is reproduced hereunder:-- "561-A. Saving of inherent power of High Court.---Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code; or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
4. Learned counsel for the petitioner stated that the confiscation of the fishing nets cannot be resorted to under section 3 or section 9 of the Balochistan Sea Fisheries Ordinance, 1971 ("Ordinance") and that the fishing nets, which had been seized by the authorities were not prohibited nets (`gujja') and that the, "mesh size of confiscated net are inches and comes to category of local fishing nets". It was lastly contended that the fishing nets are the "only source of fishing and income of the petitioner and other crews." Copy of the Ordinance and copy of the Balochistan Sea Fisheries Rules, 1971, made pursuant to the said Ordinance, were filed along with the petition. Counsel for the petitioner also placed reliance upon the judgment dated 11th May, 2009 of this court authored by Mr. Justice Ahmed Khan Lashari (as he then was) passed in Criminal Revision No,6 of 2009, relevant portion whereof is reproduced hereunder:-- "Section 9 of the Ordinance provides that whoever contravenes any provisions of this Ordinance, or of the rules made thereunder, shall be punishable with simple imprisonment which may extend to one month or with fine up to Rs,5000 or with both., while section 10 thereof speaks that a habitual offender shall, on subsequent conviction, be liable to the confiscation and forfeiture of his fishing craft and fishing gear, or to the suspension of his license. The record does not disclose that the petitioner was habitual offender and was earlier convicted by the court of law regarding illegal fishing, rather when the case came up for hearing before the trial Court, he pleaded his guilty and on the basis thereof he was convicted and sentenced, thus, section 10 of the Ordinance does not attract to the facts and circumstances of instant case, as such, petition is allowed and orders impugned herein to the extent of confiscation of fishing wire net, is set aside. The case property i,e.
Wire-net be released to the petitioner.
5. In view of the fact that the mesh size or opening of the fishing nets was not mentioned in the petition and it was stated that, "the mesh size of the confiscated fishing nets are inches," the respondent No,3 produced the specimen of the confiscated nets under the joint signatures of Messrs Hamid Mir, Deputy Director Fisheries Department and Saleh Muhammad, Section Officer Fisheries Department. The specimen taken from the confiscated nets when stretched was measured and the mesh opening was found to be less than 1-1/2 inches. Learned counsel for petitioner did not dispute that the specimen produced in court was not from the confiscated nets.
6. The copy of the Ordinance attached with the petition and relied upon by the counsel for the petitioner did not reflect the amendments made in the Ordinance vide the Balochistan Sea Fisheries (Amendments) Act, 1986 (Act No,IV of 1986) and the Balochistan Sea Fisheries (Amendment) Act, 1994 (Act No,X of 1994). Sections 3 and 9 as originally enacted and as subsequently amended are reproduced hereunder:-- Section 3 before amendment:-- "No person shall operate any fishing craft or use any fishing gear in Baluchistan waters without a licence in the prescribed form issued by the licensing authority for each fishing craft."
' Pursuant to the Balochistan Sea Fisheries (Amendment) Act, 1986, section 3 was bifurcated into two subsections, the section as existing was renumbered as subsection (1) and the following new subsection (2) was added: "3(2) No person shall be allowed to fish with encircling net or improvised purse seine net locally called "wire net" or "gujja" or ring net and bottom trawls locally called "trawls" or "gujja" in the closed 'bays of Sonmiani and Kalmat and twelve nautical miles from shore along the rest of Baluchistan coast."
Section 9 before amendment: "(9) Whoever contravenes any provision of this Ordinance or of the rules made thereunder, shall be punishable with simple imprisonment which may extend to one month with fine which may extend to five thousand rupees or with both."
' The Balochistan Sea Fisheries Act, 1994, raised the amount of fine mentioned in section 9 to rupees One Lac and the following new sections were inserted:-- "9-A'. Custody of Poachers and Poaching Vessel.--The Fisheries Officer will handover the poachers and their poaching vessel in the safe custody of Tehsildar/Assistant Commissioner of the respective areas as soon as they are brought ashore and until such time they are prosecuted."
"9-B. Auction of illegal fish.---The illegal fish catch, is a perishable commodity and the Fisheries Officers straight away proceeds to dispose of the same through open auction and keep the auction amount in safe custody till the poacher is prosecuted and the prescribed period for appeal expires. Where upon the auction money is deposited under the Head of Fisheries Receipt. In case of acquittal, the amount is returned to the poacher."
7. It may be mentioned that the said two sections have been further amended by the Balochistan Sea Fisheries (Amendment) Act, 2009, wherein subsection (3) has been added to section 3, as under:-- "(3) A fishing license granted under these sections does not authorize the licence to fish. With encircling net or improvised purse seine net locally called "wire net" or "gujja" in internal waters and 12 nautical miles from the base line and that he will fish by gillnets with a mesh size not less than 5 inches and "Tukri nets" having mesh size not less than 2.5 inches beyond internal waters and 3 nautical miles away from the base all along Balochistan Coast except fishing nets aimed for Indian mackerels (Rastrillger karanguta) locally called Bhangra and will not disrupt already laid fishing nets. Fishing nets locally called "Bullo Gujja" nets (Estuaries set bag net) and "Kado" nets are hereby banned."
' Section 9 has been substituted with the following section:- "(9) Whoever contravenes any provision of this Act or of the rules made thereunder, shall be punishable with imprisonment which may extend to one year or with fine which may extend to one hundred thousand rupees or with both: ' Provided that the contravention of section 3 shall be punishable with imprisonment of either description for a term which may extend to three years or with fine which shall not be less than 300,000 and shall not exceed to Rs,600,000 or both.
' Provided further that the banned fishing gear/nets harnessed in the offence shall be confiscated and in case of habitual offenders, the fishing vessels shall also be enable to be confiscated."
8. The Balochistan Sea Fisheries (Amendment) Act, 2009 (Act No,VII of 2009) however is not relevant for the purpose of the instant matter as the amendments made therein came into effect after the lodging of the F.I.R. On 13th September, 2009 and after passing of the impugned order dated 15th September, 2009. As per Balochistan Gazette Notification dated 3rd November, 2009 published in the Balochistan Gazette on the same day Act No,VII of 2009 was assented to by the Governor of Balochistan 24th November, 2009.
9. The law existing on the day when the crime was committed (13th September, 2009) prohibited the use of "wire net" or "gujja" within 12 nautical miles from shore along the coast of Balochistan and stipulated simple imprisonment of one month, maximum fine of Rs,100,000 or both and confiscation of the fishing craft. Accordingly, the Judicial Magistrate on the date of conviction could have awarded the petitioners sentence of simple imprisonment for a term extend up to one month or with fine of Rs,100,000 or with both and confiscated the fishing craft involved in the offence. It could in fact be contended the confiscation of the fishing craft was mandatory as the proviso to section 9 stipulated that, "the fishing craft shall be liable to confiscation", however, the State did not file an appeal against the said order therefore this point is not being considered in the instant matter. The reliance placed upon the judgment authored by Mr. Justice Ahmed Khan Lashari (as he then was) would also not help the petitioner as the same did not take into consideration the amendments made to the law and as such may not be cited as a precedent.
10. The question that requires consideration is whether the trial Court could have ordered confiscation of the prohibited fishing net since on the date when the offence was committed the law did not specifically provide for such confiscation. In my opinion any prohibited fishing net can be ordered to be confiscated even though there was no specific provision as it was the instrument whereby the crime was committed. Moreover, section 517(1) of the Code gives the trial Court the discretion to order disposal of property by "destruction, confiscation or delivery to any person of the property used for the commission of any offence." Moreover, if the prohibited fishing net "gujja" is returned to the petitioner the same may again be used for committing crimes under the Ordinance. In fact it would most certainly be so used as there is no other use for the same and as the petitioner audaciously states that it is his only source of livelihood.
11. Illegal fishing and fishing through illegal means and methods endangers the marine environment and fish stocks which in turn threatens the economic opportunities both for the fishermen as well as the local population. By using fine mesh nets large number of juvenile fish are caught which wipes out the chance of such fish reaching maturity and spawning further generations to replenish the fish stock. On the other hand if legally permissible nets with large mesh size are used juvenile fish would be able to escape and to reach maturity. The use and management of coastal fishing resources should be in a - manner that benefits the local community in the long run. Over fishing, illegal fishing and resorting to unnecessary killing and catching of juvenile fish ruptures the ecological web, results in the decline of marine resources and damages the sea and the coast, bringing with it untold suffering to the communities living along the coastal areas who are dependent upon fishing both to feed themselves as well as to provide them with much needed livelihood. The greed of a few imperils all.
12. The Balochistan Sea Fisheries Ordinance was promulgated in 1971 and over of period of time enhancement in punishment have been made therein. In the instant case convicts were ordered to pay fine of only Rs,15,000 and no sentence of imprisonment was passed despite their confessing that the crime was committed by them. Moreover, their vessel was ordered to be released to them.
Under such circumstances it was expected that the petitioner would have been pleased with how very lightly he was let off, but instead he seeks to recover his prohibited nets on the ground that the said prohibited "fishing nets are his" only source of fishing and income." This is tantamount to a murderer asking for the return of his weapon, because murder is his only source of livelihood. Use of prohibited nets is a crime both against society as well as God's creatures, who do not have a voice. It is our duty to ensure that the rights of the people are protected and the large scale capture and killing of juvenile fish avoided. Accordingly, no ground for invoking the inherent powers of this court have been made out that require prevention of the abuse of the process of the court or otherwise to secure the ends of justice. On the contrary the petitioner wants to obtain the prohibited fishing nets to continue with his criminal activity. Therefore, this petition being without any merit is dismissed.
13. The confiscation of the prohibited nets in favour of the State, however, does not stand to reason as the fishing nets cannot be used or auctioned by the State and it would have been appropriate if the trial Court had ordered their destruction. Moreover, storage of the said nets will be expensive and serve no purpose. Accordingly, to prevent misuse of the confiscated nets it is ordered that the confiscated nets be destroyed by the State in the presence of the Judicial Magistrate and the impugned orders stand modified to such extent.
14. It was noted that the learned counsel were not aware of the amendments made in the Balochistan Sea Fisheries Ordinance, 1971, accordingly the respondent No,3 is directed to provide copies of the Ordinance with latest amendments to the fishing authorities in the coastal areas of Balochistan and with copies thereto to all the concerned Judicial Magistrates, Additional Session Judges and Sessions Judges as well as to district attorneys and public prosecutors, so that the laws made by the representatives of the people of Balochistan are implemented and enforced.
' Copy of this order be sent to Government of Balochistan through Secretary Fisheries and all judicial officers serving in the coastal areas of Balochistan for information and/or compliance, as the case may be.
Petition dismissed.
PLD 2011 Quetta 18 Before Ghulam Mustafa Mengal, J MUHAMMAD KHAN---Appellant versus THE STATE---Respondent Criminal Appeal No,135 of 2010, decided on 8th February, 2011.
West Pakistan Arms Ordinance (XX of 1965)- ----Ss. 8, 9 & 13(e)---Explosive Substances Act (VI of 1908), Ss.3/4--- Anti-Terrorism Act (XXVII of 1997), S.7(a)---Possessing arms and explosive substances and terrorism---Appreciation of evidence---Counsel for accused had mainly contended that neither the recovered weapon was sealed at the spot; nor the same was sent to the Ballistic Expert for his opinion, as to whether same was in working condition or not---Validity---Recovered weapon was not required in any other case, so that it could have been sealed at the spot--No question had been suggested to the witnesses by the defence Counsel that the weapon produced in court was not in working condition---In the present case recovery of weapon (pistol) having been denied, contention raised by counsel for accused that pistol was neither sealed at the spot nor it was in working condition had no force---Weapon which required licence could hot be kept in possession, even if it was not in working condition---Non-sending of pistol to expert for opinion, was an omission on the part of Investigating Officer; and was not fatal to the prosecution case---In absence of any illegality or infirmity in the impugned judgment warranting interference by High Court, appeal filed by accused was dismissed and impugned judgment was maintained. [pp. 1'), .:11 A & B Mujeeb Ahmed Hashmi for Appellant.
Sardar Ahmed Halimi and Qazi Abdul Malik for the State.
Date of hearing: 26th January, 2011.
' GHULAM MUSTAFA MENGAL, J.---This Criminal appeal under section 410, Cr.P.C. Has been directed against the judgment dated 26-5-2010 passed by Special Judge, Anti Terrorism Court-II, Quetta, whereby appellant has been found guilty under section 9 and section 13-E of Pakistan Arms Ordinance and sentenced to three years' R.I. With tine of Rs,10,000 and in default to further suffer 20 day's S.I. With benefit of section 382-B, Cr.P.C.
' Briefly stated, the facts of the prosecution case are that on 18-12-2009 at about 6-30 p.m. In between Kamal-II and Salahuddin pickets accused was apprehended by F.C. Personals and from possession of accused/appellant one T.T. Pistol of 30 bore, 3 Hand-grenades with one device, one detonator along with remote wire, two packet explosive material (8/1/2 k.g.) a Nokia Mobile along with Afghani Sim No,2100, one purse containing Rs,518 Pakistani Currency Ind 80 Afghani Currency were recovered. Upon registration of case under sections 3-4, Explosive Substances Act read with section 13-E, Arms Ordinance, and 7-A.T.A. 1997, investigation was conducted by p.W.4. Muhammad Yaqoob, I.P. And challaned the appellant to face his trial.
' At the trial charge was framed under sections 3-4 of Explosive Substances Act and section 13-E, Arms Ordinance on 13-2-2010, to which appellant did not plead guilty and claimed for trial.
' At the trial prosecution examined P.W.1., Anar Badsha, Naib Subedar, who was co-mashir of the recovery memo; Exh.P/1-A, and seizer of Pistol Article, P/1-A and 5 rounds article, Article P/1-B, Rs,518 Pakistani Currency Article P/1-C, 80 Afghani Currency, Article P/1-D and a Purse containing Pakistani and Afghani Currency Article P/1-B. Respectively. P.W.2. Hawaldar Mureed Abbas, witness to the recovery memo; Exh. P/1-A. P.W.3., Major Farrukh Mirza, was/the complainant, who produced Murasla, Exh. P/3-A. P.W.4., Muhammad Yaqoob, I.P, who conducted formal Investigation. He produced F.I.R as Exh.P/4-A, sketch of the place of arrest of accused, Exh.P/4-B and Challan, Exh.P/4-C, Exh.P/4-D and delivery certificate, Exh.P/4-E. After close of prosecution side, statement of the appellant was recorded under section 342, Cr.P.C. Wherein he denied the allegation levelled against him. He produced D.W-1, Abdul Wali and D.W.2. Muhammad Gul in his defence. The learned trial Court concluded the proceedings by means of judgment dated 26-5-2010, whereby the appellant has been convicted and sentenced in the aforementioned terms. The appellant being aggrieved by the impugned judgment preferred this appeal.
Mr. Mujeed Ahmad Hashmi, learned counsel for the appellant has mainly contended that neither recovered weapon was sealed at the spot nor the same was sent to the Ballistic Expert for his opinion as to whether it was in working condition or not.
' On the other hand Mr. Sardar Ahmad Haleemi, learned Special Prosecutor, A.T.A. Supported the impugned judgment and argued that the charge framed against the appellant contains the allegation about recovery of unlicensed T.T. Pistol from the possession of appellant, as defined under section 13-E of Arms Ordinance, therefore, mere non-sealing and non-sending of Pistol to Expert is an irregularity and comission on the part of Investigating Officer, is not fatal to the prosecution case.
' I have heard the learned counsel for the parties and have gone the record.
' As regards the contention of the learned counsel for the appellant, it is pointed out that the recovered Pistol was not required in any other case so that it could have been sealed at the spot.
No question has been suggested to the witnesses by the defence counsel that the pistol produced in Court was not in working condition. In the instant case the recovery of Pistol has been denied, therefore, the contention so raised by the learned counsel that the Pistol was neither sealed at the spot nor it was in working condition has no force. Sections 8 and 9 of the West Pakistan Arms Ordinance, 1965 reads as under:--
(8) Prohibition Of Going Armed Without Licence.---(1) No person shall go armed with any arms except under a licence and to the extent and in the manner permitted thereby.
(2) Any person so going armed without a licence or in contravention of its provisions may be disarmed by any Magistrate, Police Officer or other person empowered by Government in this behalf by name or by virtue of his office.
(3) Nothing in subsections (1) and (2) shall apply to a person carrying arms under a written authority issued in accordance with the rules.
(9) Unlicensed possession of arms, etc.---No person shall have in his possession or under his control any arms, or any ammunition or military stores, except under a licence and in the manner and to the extent permitted thereby.
' Section 3 (1) (a) defines the definition of word ammunition; as under:--
(a) "ammunition: includes---
(i) ammunition of all types for light and heavy automatic weapons, revolvers, pistols, rifles, carbines, muskets and shot-guns;
(ii) ammunition constructed and modified for firing projectiles or gas or smoke containers;
(iii) gun wads, gun finds, percussion caps, fuses, friction tubes and detonators;
(iv) all types of grenades, bombs, rockets, mines and fuels for flame throwers;
(v) all types of explosives, fulminating material and propellants, including all articles specially designed for torpedo operation and depth charges;
(vi) all parts of ammunition, but does not including lead, sulphur or saltpeter; The plain reading of definition of above sections, show that weapon which requires licence can not be kept in possession, even if it is not in working condition, as such, non-sending of Pistol to Expert for opinion is an omission on the part of Investigating Officer and is not fatal to the prosecution case.
' For what has been discussed above, I found no illegality or infirmity in the impugned judgment, warranting interference by this Court. The appeal filed by appellant is dismissed and impugned judgment is maintained.
Appeal dismissed. PLD 2011 Quetta 21 Before Jamal Khan Mandokhail and Mrs. Syeda Tahira Safdar, JJ MUHAMMAD KHALIL and another---Petitioners versus EXECUTIVE DISTRICT OFFICER, REVENUE, PISHIN and another---Respondents Constitutional Petition No,212 of 2009, decided on 13th January, 2011.
(a) Words and phrases ----"Domicile", meaning, types and purposes, explained. [p. 23] A
(b) Pakistan Citizenship Act (II of 1951)---
(c) ----S. 17---Certificate of domicile---Nature and scope---Domicile certificate was a prima facie, proof of the place of permanent residence of a person, who intended to permanently reside at a particular place---First stage of domicile certificate was that when the person intended to permanently reside at a particular place, would apply for a domicile certificate and second stage was after obtaining a domicile certificate, the holder of certificate, would continue to permanently residing at a particular place---In the first circumstance, when a person would apply for a domicile certificate, the authority had to consider as to whether the applicant relinquished his earlier permanent place of residence before selecting his new place of domicile while the second was that the authority on its own or on the objection of any person concerned, could conduct an inquiry with regard to a permanent residence of holder of a certificate for a particular place. [p. 24] B & E
(c) Words and phrases-- ----"Permanent" defined and explained. [p. 24] C
(d) Words and phrases-- ----"Residence ", defined and explained. [p. 24] D
(e) Pakistan Citizenship Act (II of 1951)--- ----Ss. 16 & 17---Constitution of Pakistan, Art.199---Constitutional petition---Issuance and cancellation of domicile certificate-ScopeAuthority's hands were not tied---Once, the Authority had issued domicile certificate, it had the powers to cancel it, in case it was proved that same had been obtained by means of fraud, misdeclaration, misrepresentation or concealment of any material facts---In such a situation, an action was to be taken in accordance with the provisions of the Pakistan Citizenship Act, 1951-In the present case, it had been proved that the certificate had been obtained by the petitioners by means of concealment and misrepresentation of facts; and on a false declaration-Certificate, in circumstances, was rightly cancelled---Petitioners had failed to point out any illegality, irregularity or any jurisdictional defects in the impugned order to interfere- Constitutional petition filed by the petitioners, was dismissed. [p. 26] F Ghulam Mustafa Buzdar for Petitioner.
Abdul Aziz Khilji, Additional Advocate-General for Respondents.
' JAMAL KHAN MANDOKHAIL, J.---Facts, in brief, are that petitioner No,1 was appointed in the Police Department, Government of Balochistan and was posted in District Pishin, in the year 1984. At that time, he had no domicile certificate, however, he, for the first time in the year, 2006, applied for the issuance of a domicile certificate from Pishin. He enlisted petitioner No,2 in the domicile certificate being his son. Petitioner No,2, later on, applied for the separation of his certificate, which was granted to him in the year 2008.
' Respondent No,1, after receiving an objection regarding both the domicile certificates, conducted an inquiry and has cancelled both the certificates by means of an order dated 1st April, 2009, hence, this petition.
' The learned counsel for the petitioners submitted that in spite of the fact that petitioner No,1 is serving in the Police Department at District Pishin as a constable, his domicile certificate has been cancelled on the ground that he is not permanently residing there. Petitioner No,2, being son of petitioner No,1, has separated his certificate from the domicile certificate of his father, but his domicile certificate has also been cancelled contrary to the facts and material available on record.
According to him, once the certificates have been issued to the petitioners, a right has been created in their favour, therefore, they cannot be deprived of it.
' The learned Additional Advocate-General strongly opposed the contention and argued that petitioner No,1 was employed in the Police Department as a constable in the year, 1984, but he did not opt to obtain the certificate till the year 2006. The petitioners are permanently residing at Dera Ghazi Khan and their place of residence mentioned in their certificates is temporary and only for the purpose of getting benefits of the backward District. He stated that due to their misstatement and concealment of facts, respondent No,1 has rightly cancelled their domicile certificates.
We have heard the learned counsel for the parties and have perused the record. The matter pertains to a domicile certificate, therefore, the purpose and meaning of a domicile has to be considered at first. The word 'Domicile' has not been defined under the Citizenship Act, 1951. The Black's Law Dictionary (Seventh Edition), defines the word ' Domicile' as a person's true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere.--also termed permanent abode. .
' Plain reading of the definition gives the meaning of a domicile as proof of a permanent residence of a person. The concept of a permanent residence as defined in the terms of a domicile is of two types, one by birth and the other by choice. A person, who desires to select his permanent residence by choice means that he intends to relinquish his original place of abode and to choose another place for the purpose of his permanent residence. Once the facts of relinquishment and acquisition are established, a domicile undergoes a change and the person acquires a new domicile and has a permanent home, at least in the notional sense at the new place. The domicile has to be considered a synonym for home. The domicile has been discussed by Lord Granworth in the case of Whicher v. Home, relevant portion of which is reproduced here in below:-- "By domicile we mean home; the permanent home; and if you do not understand your permanent home, I am afraid that no illustration drawn from foreign writers or I think the best I have heard is one which describes the home as the place 'Uncle sitdiscess-urus-sl-nihi avocet under cum profectusest peregrine arividetur. I think that the best illustration and I use that word rather than definition, to describe what I mean."
' The above discussion leads us to the conclusion that the domicile certificate is a, prima facie, proof of the place of permanent residence of a person, who intends to permanently reside at a particular place.
' The Oxford Dictionary has defined the word 'permanent' as "lasting or expected to last for a long time or forever", whereas the word 'temporary' has been defined as "lasting or meant to last for a limited time only". Similarly, the word 'Residence' has been defined as a house, the state of living in a particular place. Thus, the Perth anent residence means the state of living at a particular place for all the time or at least for a longtime, whereas a temporary residence means living for a short time.
' There are two stages of a domicile certificate, one is, that when the person intended to permanently reside at a particular place, as such, applies for a domicile certificate. Secondly, after obtaining a domicile certificate, the holder of a certificate continues to permanently residing at a particular place. Thus, in the first circumstance, when a person applies for a domicile certificate; the authority. Has to consider as to whether the applicant relinquished his earlier permanent place of residence before selecting his new place of domicile. As far as the second circumstance is concerned, the authority on its own or on the objection of any person concerned can conduct an inquiry With regard to a permanent residence of a holder of a certificate for a particular place.
' Admittedly, petitioner No,1 was appointed as constable in the police department in the year 1984 without having a domicile certificate of District Pishin. He obtained it in the year, 2006, mentioning his residence as Teachers' Colony, District Pishin. It is important to point out here that at the time of applying for the certificate, the CNIC was issued to petitioner No,1 in the year, 2002. It indicates his temporary and permanent residence as "Bassi Khail Sokhar, Post Office Khas, Tehsil Tonsa and District Dera Ghazi Khan". Petitioner No,l, later on, obtained another CNIC in the year, 2009. This time, he changed his temporary residence as "Teacher's Colony, Pishin", but his permanent residence remained as District Dera Ghazi Khan in it.
' In his certificate, though he has mentioned the names of his children, showing their arrival at Pishin, but the academic documents relied upon by petitioner No,2 indicates his place of education, as District Dera Ghazi Khan. In their petition too, the petitioners stated the fact that their family is residing at Dera Ghazi Khan for the purpose of a better education.
' The material available on record, especially the CNIC of petitioner No,1, proves his intention to permanently reside in District Dera Ghazi Khan. It is a fact that from the date of his appointment till May, 2006, he did not apply fora domicile certificate of District Pishin. In the domicile certificate, he has shown his date of arrival at District Pishin as 1984. He has neither expressed his intention to relinquish his permanent place of abode from Dera Ghazi Khan, nor disclosed his willingness to choose the District Pishin as his new permanent residence. Moreover, no document has been placed no record to prove that his family ever shifted to Pishin, either temporarily or permanently.
The temporary residence of petitioner No,1 in District Pishin is only being employed there.
' As far as petitioner No,2 is concerned, he was, admittedly, residing at Dera Ghazi Khan. He completed his entire education from there, as such, there is no material on record to show his temporary or permanent residence at Pishin. He simply separated his certificate from his father, without his relinquishment from his permanent resident of Dera Ghazi Khan. Mentioning the name of petitioner No,2 in the domicile certificate of his father is not enough to prove his intention to reside at Pishin.
' It seems that the authority, while granting the domicile certificates, has not properly, considered the above stated facts. There is no proof on record, showing that, at the relevant time, petitioner No,1 had relinquished his permanent residence from Dera Ghazi Khan and opted to reside permanently in District Pishin.
' The petitioners have concealed the material facts and false declaration was made at the time of obtaining the domicile certificates. The record indicates that the, applications of the petitioners were not properly processed and detailed inquiry in this behalf was not conducted. The CNIC of petitioner No,1, alone, was indicative of the fact that his both temporary and permanent residence were of the District Dera Ghazi Khan. The certificates have been obtained, only for the purpose of getting benefits, meant for 'the people of the backward area of Balochistan. Even the petitioners have not produced any document or evidence to prove their intention to shift to District Pishin.
' No doubt, petitioner No,1 is performing his duties there for a long period, but mere length of his stay at Pishin by itself does not create a right to obtain a domicile certificate, nor it establishes his permanent residence. A person being a permanent resident of place 'A' may select to reside temporarily at place '13' in connection of his service, business etc, but it does not entitle him to claim his temporary residence as a permanent one, without following the above criteria. Same is the case of petitioner No,1, as he is residing temporarily in Pishin in connection of his service. The petitioners have failed to produce a single proof of their permanent resident in District Pishin at the time of obtaining the certificates. To the contrary, the Councilor, Naib Nazim and Nazim of Union Council City, Pishin have verified that the petitioners are not residents of the District Pishin.
There is no provision of law that the authority's hands are tied. Once it has issued a domicile certificate, it has the powers to cancel it, in case it is proved that the same had been obtained by means of fraud, misdeclaration, misrepresentation or concealment of any material facts. In such a situation, an action is to be taken in accordance with the provisions of the Citizenship Act, 1951.
' In view of above, it is proved that the certificates have been obtained by the petitioners by means of concealment and misrepresentation of facts and made a false declaration, therefore, resppndent No,1, after proper scrutiny, has come to a just and proper conclusion and has rightly cancelled the certificates.
' The learned counsel for the petitioners has failed to point out any illegality, irregularity or any jurisdictional defect in the impugned order to interfere, hence, we are not inclined to accept the petition, whick is hereby dismissed in limine.
Petition dismissed. PLD 2011 Quetta 26 Before Jamal Khan Mandokhail, J CHAKAR KHAN and 3 others-Petitioners versus AZAD KHAN and 5 others---Respondents Civil Revision No,50 of 2009, decided on 10th January, 2011.
(a) Civil Procedure Code (V of 1908)--- ----S. 96---Single appeal against common judgment/decree passed in two suits consolidated by Trial Court---Maintainability:-Two suits once consolidated would cease to have independent existence, wherein only once judgment/decree could be passed to regulate both suits---Trial Court had framed consolidated issues in both suits relating to same subject-matter---One appeal under S. 96, C. P.C., was allowed from a decree--- Common judgment/decree of Trial Court could be challenged through a single appeal, for appeal being a continuation of suit---Such appeal was maintainable---Principles. [pp. 29, 30] A, C & D Allah Bakhsh v. Mst. Shamshad Zohra and others 1985 SCMR 959 rel.)
(b) Civil Procedure Code (V of 1908)- ----S. 151---Consolidation of suits---Scope---Suits involving common questions of law and facts should be consolidated in order to avoid multiplicity of litigation and conflicting findings--- Disposal of such suits through one and same court would be proper---Purpose of consolidation of suits would be to minimize cost of litigation-Two suits once consolidated by an order of court would cease to have independent existence, thus, only one judgment/decree could be passed to regulate both suits. [p. 30] B & C
(c) Specific Relief Act (I of 1877)--- ----Ss. 8 & 42---Balochistan Tenancy Ordinance (XXI of 1978), Ss.33, 44---Civil Procedure Code (V of 1908), S. 9---Suit for declaration and possession-Non-payment of share in agricultural produce by defendant-tenant---Defendant denied relationship of landlord and tenant between parties and claimed ownership over suit land for being in possession thereof for a considerable long period--- Defendant's plea that plaintiff could claim possession of suit through Revenue Court, but not civil court---Validity---Had there been any relationship of landlord and tenant between the parties, then remedy under Balochistan Tenancy Ordinance, 1978 could have been filed---Cause of action under S. 42 of Specific Relief Act, 1877 accrued to plaintiff on denial of his title to suit land by defendant --- Such suit, was competent in circumstances. [p. 30] E
(d) Possession--- ----Mere possession over a land for any long period would not entitle a person to become its owner. [p. 31] F
(e) Civil Procedure Code (V of 1908)--- ----S. 115---Revisional jurisdiction of High Court---Scope---Such jurisdiction could be exercised only in case of violation of any law by courts below. [p. 31] G Khushnood Ahmed Khan for Petitioner.
Muhammad Sadiq Ghuman for Respondents. Date of hearing: 3rd December, 2010.
' JAMAL KHAN MANDOKHAIL, J.---Briefly stated facts of the case are that the respondents filed a suit for declaration, permanent injunction, consequential relief and possession against the predecessor of the petitioners. It is alleged that the petitioners are the owners of the property bearing Khasra Nos.513, 515 and 516, situated at Mouza, Sultan Kot, Tehsil and District, Sibi (called hereinafter, the land in dispute). The possession of the property was given to the father of the petitioners for cultivation on the basis of Bazgari. Since the share of the petitioners out of the produce has not been paid to them, therefore, they have filed the present suit for the recovery of the possession.
' The suit was contested by the predecessor of the petitioners by way of filing his written statement, wherein, several legal objections regarding maintainability of the suit were raised. One of the legal objections of the petitioners was in respect of the jurisdiction of the Civil Court. It is stated that the plaintiffs could have claimed through the Revenue Court, as such, the present suit was not competent. On merits too, the petitioners totally denied the ownership of the respondents and claimed their possession as owners. They have straightaway denied the relationship of the landlord and the tenant between them and the respondents.
' During pendency of the suit, the petitioner also filed a suit for the cancellation of the mutation entries in respect of the land in dispute, which were on the name of the respondents.
' Both the matters were consolidated and tried. On conclusion of the cases, the Trial Court, vide the judgment and decree dated 31st January, 2009, dismissed the suit of the respondents and decreed the suit of the petitioners. Feeling aggrieved, the respondents preferred an appeal before the Court of the District Judge, Sibi, who reversed both the judgments and decrees. Resultantly, the suit filed by the respondents was decreed and the suit filed by the petitioners was dismissed, hence this petition.
2. The learned counsel for the petitioners stated that the appellate Court has erred in the law by not considering the legal objections raised by the petitioners in respect of the maintainability of the appeal and the suit of the respondents. He contended that single appeal against two judgments and decrees was not competent, but the Appellate Court has wrongly entertained it. It has not properly dilated upon the evidence and material available on record and it, while dismissing the suit of the petitioners by maintaining it as barred by time, has not considered the fact that, the limitation starts from the date of knowledge. The moment the petitioners came to know about the fraudulent mutation entries, they immediately filed a suit, which was very much within time.
According to him, the judgment and decree of the appellate Court are not well-reasoned. The learned counsel, at last, submitted that in view of what has been stated, the impugned judgments and decrees passed by the appellate Court are not only without jurisdiction, but are also void, illegal and unlawful.
3. On the other hand, the learned counsel for the respondents submitted that both the suits were consolidated and were decided through a common judgment. Since the entire proceedings were consolidated, therefore, a single appeal was filed against the judgment and decree of the Trial.
Court. The learned counsel states that in the appeal, the respondents challenged the findings of the Trial Court on both the suits. Since, a common judgment and decree were passed, therefore, the single appeal was competently filed.
' He argued that as regards the objection on the maintainability of the suit is concerned, after the denial of the petitioners regarding the relationship of the landlord and the tenant, the only remedy left for the respondents was to file a suit for possession under section 42 of the Specific Relief Act.
Moreover, the respondents were recorded as tenants of the Provincial Government. In view of a policy of the Government, the ownership of the land was transferred to the tenants on the basis of which, the respondents became owners of the land. It is sufficient proof of the fact that, the respondents' were already in its possession as tenants. Presently, the possession of the petitioners over the land in dispute is illegal, therefore, the respondents are entitled to claim the possession from them: ' The learned counsel submitted that on the other hand, the suit of the petitioners was hopelessly barred by time, therefore, it has rightly been decided by the Appellate Court. The petitioners have no right, title or interest into the property in dispute, therefore, the Trial Court, after considering the entire material, has come to a just and proper conclusion.
4. I have heard the learned counsel for the parties and have perused the record. In the first instance, let me dilate upon the objection raised by the petitioner on the maintainability of the appeal. It is an admitted fact that, initially, both the suits were consolidated by the Trial Court and, finally, these were disposed of through a common judgment and a decree. The respondents have challenged the judgment and decree through a single appeal.
' If common question of law and facts are involved in the suits, with a view of avoiding the conflicting findings, it is just and convenient that the suit be disposed of by one and the same Court. In such like cases, normally, the suits are being consolidated in order to avoid the multiplicity of the litigation and the contrary demands. One of the purposes of consolidation is to minimize the, unnecessary cost of the litigation. When by an order of the Court, two suits are consolidated these have no independent, existence. As a result of the consolidation, only one judgment and decree could be passed to regulate both the suits.
' Admittedly, in present case, both the suits were consolidated by the Trial Court for the reason that these relate to same subject matter on the premises. Out of both the suits, consolidated issues were framed and decided the suits by one and a common judgment and a decree. An appeal is governed by section 96 of the C.P.C. It says that an appeal lies against every decree. In this Section, the word "An" has been used, which means one or single. Thus, from a decree, only one appeal is allowed. The appeal is since a continuation of the suit, therefore, through a single appeal, a consolidated judgment and a decree of the Trial Court would be challanged. Reliance is placed of the case of Allah Bakhsh v. Mst. Sharnshad Zohra and others, reported in 1985 SCMR 959. Relevant portion whereof is reproduced herein-below:-- "As provisions of C.P.C. Other than sections 10 and 11 are inapplicable to the proceedings the technical objection of filing of a single appeal against a consolidated judgment when it was manifestly directed against the decision in both, would not stand in the way adjudication in accordance with law.
' We do not consider it a fit case for leave to appeal. The petition is dismissed."
The second objection of the petitioner was in respect of the maintainability of the suit on the ground that, the matter relates to the Tenancy Ordinance. It is important to mention here that, in the written statement, the petitioners categorically denied the relationship of the landlord and the tenant. They claimed their ownership in capacity of being in the possession of the, land in question for a considerable long period. Had there been any relationship of the landlord and the tenant, then, of course, a remedy under the Balochistan Tenancy Ordinance could have been filed, but the moment, the title of the respondents is denied, then, the cause of action, within the meaning of section 42 of the Specific Relief Act, accrues to the respondents, therefore, the present suit for the possession was quite competent.
' As far as merits of the case are concerned, it has come on record through the mutation entries that, the respondents were initially recorded as Morushi Bazgar of the Government .Of Balochistan.
After pronouncement of a policy by the Government, all the occupancy tenants were awarded the ownership rights. Taking its advantage, the respondents, being tenants, applied through proper channel for the allotment of the land in question, which was granted to them after fulfillment of all the formalities. The documentary proof is evident of the fact that, right from the beginning, the respondents were in possession of the property in question, Pleadings of the parties show that, presently, the land in dispute is in possession of the petitioners, but they claimed their possession for decades. Perusal of the statements of the witnesses does not support the contention of the petitioners regarding long standing possession. In any case, the possession of the petitioner over the land in dispute is illegal and unlawful. Even otherwise, mere possession over a land for how long it may be, does not entitle a person to become an owner.
' It is also a fact that the suit of the petitioners for cancellation of the mutation entries has been dismissed for the reason that they have not been able to show their ownership. Since the petitioners have not been able to prove their entitlement in respect of the land in dispute, on the other hand, the respondents have successfully been able to prove their previous possession and, thereafter, they are justified in claiming the possession of the property from the petitioners.
' The Trial Court, while deciding the appeal, has thoroughly and properly considered the evidence and material available on record, which findings do not suffer from any misreading and non- reading of the evidence.
The jurisdiction of this Court under section 115, C.P.C. Is limited, which can only be exercised if any violation of law has been committed by the Courts below. The learned counsel for the petitioners has failed to point out any infringement of law, any illegality or irregularity in the impugned judgment and decree warranting interference by this Court.
5. Thus, in view of what has been stated and discussed hereinabove, the petition is hereby dismissed.
6. These are the reasons of my short order dated 3rd December, 2010.