' AMIN-UD-DIN KHAN, J.---Through this civil revision the petitioners-defendants have challenged the judgment and decree dated 5-1-2002 passed by the Additional District Judge, Bahawalnagar whereby appeal filed by the petitioners-defendants was dismissed against the judgment and decree dated 27-9-2000 whereby suit for pre-emption filed by the respondent-plaintiff was decreed.
2. Brief facts of the case are that the respondent-plaintiff filed a suit to pre-empt the sale in favour of the defendants-petitioners through Mutation No,296 sanctioned on 30-6-1994. The suit was filed on 26-10-1994. The written statement was filed. After framing of issues the learned trial court invited the parties to produce their respective evidence. Both the parties produced their oral as well documentary evidence. Vide the judgment and decree dated 27-9-2000 the learned trial court decreed the suit. An appeal was filed which was dismissed on 5-1-2002 by the learned Additional District Judge, hence this civil revision.
3. Learned counsel for the petitioners-defendants relying upon Haq Nawaz v. Muhammad Kabir (2009 SCM R 630) contends that plaintiff-respondent has not pleaded in the plaint the place and time of knowledge of impugned sale and also the making of Talb-e-Muwathibat and further states that even in the alleged notice, of Talb-e-Ishhad the place and time of knowledge of impugned sale as well as making of Talb-e-Muwathibat have not been mentioned.
4. On the other hand, learned counsel for the respondent states that matter relates to the year 1994 and evidence was also recorded at that time therefore at that time the law declared by the august Supreme Court was not in the field.
5. I have heard the arguments advanced by the learned counsel for the parties and have examined the record with their able assistance.
6. No doubt for filing a suit to pre-empt the sale, the pre-requisite is that the plaintiff must plead in his plaint and mention in his notice the date, time and place of knowledge of impugned sale and then also the jumping demand in presence of witnesses in accordance with section 13 of the Punjab Pre-emption Act, 1991 the time, date and place are not mentioned, the plaintiff cannot prove the jumping demand. In this view of the matter the reason advance by the learned counsel for the respondent-plaintiff is not sustainable. Learned counsel for the respondent-plaintiff's unable to rebut the contentions and the case-law cited by the learned counsel for the petitioners. Both the courts below fell in error while recording findings on issue No,2 against the settled law by the August Supreme Court of Pakistan, therefore, findings recorded by both the courts below are contrary to law.
' In the light of what has been discussed above; this civil revision is allowed and the findings recorded by both the courts below on issue No,2 with regard to Talbs are set aside. Resultantly, the judgments and decrees of both the courts below are set aside. The suit shall stand dismissed.
Petition allowed 2013 MLD [Sindh] Before Syed Muhammad Farooq Shah J Sheeraz Ahmed and another---Applicants Versus The State---Respondent Criminal Bail Application Nos.S-184 to 188 of 2012, decided on 1st August, 2012.
Criminal Procedure Code (V of 1898)-L- ----S. 498---Penal Code (XLV of 1860), Ss. 409, 420, 468, 109 & 34---Criminal breach of trust by public servant, cheating and dishonestly inducing delivery- of property, forgery, abetment and common intention---Contempt of Court Ordinance (V of 2003); Ss. 3 & 4---Cancellation of interim pre-arrest bail, recalling of-Interim pre-arrest bail granted to accused was recalled due to his absence from court hearing---Contentions of accused were that he and his brother were abducted by Federal Investigation Agency (FIA) officials from outside the court premises on the date of hearing and in his absence High Court recalled the interim order of pre-arrest bail, and that -brother of accused had filed an affidavit, corroborating the version of the accused-Validity-FIA officials had admitted the assertion taken by brother of complainant that accused was arrested after closing hours of the court from a place situated near the court---Fact that accused, who was resident of a different city, was found present for his arrest outside the gate of the court, did not attract to a prudent mind---Even if the accused was in front of the court premises, question was as to what prevented and refrained him from approaching and attending the court in early hours of the day-Perusal of affidavit filed by brother of accused showed that accused had not absented himself from court deliberately and intentionally- --Order for cancellation of interim pre-arrest bail was recalled and accused was released with the observation that to restore confidence of public in institutions and to eradicate excessive use of power conferred upon public functionaries, proceedings under Ss. 3 & 4 of Contempt of Court Ordinance 2003, against FIA officials should be continued separately from the present case. [p. 139] A & B Sajjad Ahmed Chandio for Applicant. Alleged contemnors present. Pir Riaz Shah, Standing Counsel. Date of hearing: 26th July, 2012.
' SYED MUHAMMAD FAROOQ SHAH J.---A prayer to recall the order dated 21-6-2012 of cancellation of interim ball granted to accused Sheeraz Ahmed Memon has been made with a further request that he may be released and sent up to the same position as he was prior to his abduction on the grounds that on 20-6-2012 both applicants were present in the Court and on the next day i,e, 21-6- 2012 due to absence of the Applicant No, 1 interim pre-arrest bail granted to him on 20-2-2012 was recalled and notice to the Surety of the applicant was issued.
' It is stated by learned counsel for the applicant that on 21-6-2012, the applicant Sheeraz Ahmed was available along with Nayyar-ul-Ahsan in the premises of this Court for attending his hearing and remained present in Court room. During break time the applicant and his brother Babar Bashir went to Cafeteria, from where they were called by FIA officials and they were taken outside the Court premises and then applicant and his above named brother were forcibly taken into a vehicle and were brought to FIA office, Karachi. The applicant/ accused Sheeraz was kept at FIA office and in his absence this Court has recalled the interim order of his pre-arrest bail. This application is duly supported along with affidavit of one Babar Bashir claiming to be real brother of the accused Sheeraz Ahmed Memon has fully corroborated the contents of the application. Another application under sections 3, 4 Contempt of Court Act (M.A. No, 4242 of 2012) has also been filed wherein the legal plea of arrest of Sheeraz Ahmed by the FIA official during interim pre-arrest bail has been agitated and a prayer to convict FIA officials, namely Rizwan and Ali Murad under section 4 of Contempt of Court Act has been made. The Contempt application is also supported along with affidavit of brother of Applicant No, 01 Babar Bashir. On notice, both contemnors have filed their parawise comments on application under sections 3 and 4 of Contempt of Court Act, whereby they have categorically denied the contents of the application and its supporting affidavit. However, they have admitted that on 21-6-2012 at 16-25 hours, the applicant/accused was arrested from a place situated at much distance from this Court and after quite a big gap of closing hours of this Hon'ble Court. It is further stated that the applicant/ accused is habitual absentee and in this connection this Court has already issued his bailable warrants on 2-6-2012. In para-15 of their comments, the contemnors have stated that the applicant/accused was granted pre-arrest bail by this Court on 20-2-2012 and thereafter he remained on such pre-arrest bail till 21-6-2012, when this Court recalled the order of pre-arrest bail due to his absence. Lastly, a prayer to dismiss the contempt application has been made.
' I have considered the arguments advanced by the learned Counsel for the applicant/accused and learned A.P.-G. Representing the State and have also carefully perused the record.
In reply of contempt application, both contemnors have admitted the assertion taken by brother of applicant Babar Bashir about date and place of arrest appears at para-3 of their comments to the contempt application, they have stated that on 21-6-2012 at 16-25 hours, the applicant/accused was arrested from a place situated at much distance from this Court and after closing hours of this Court.
' It is not attracting to a prudent mind that the applicant/accused Sheeraz Ahmed, resident of Hyderabad was found present for his arrest outside the gate of this court at 16-25 hours. If at all, he was found in front of Court premises then what presented and refrained him to approach and attend this Court in the early hours of the day. This shows some fishy part on the side of the contemnors. Without proceeding further, against the contemnors under sections 3 and 4 of Contempt of Court Act, at the first instance, while considering the contents of the affidavits of brother of the applicant trustworthy, who stated that the absentee/accused was very much present in the Court premises and thereafter, he was tactfully apprehended and arrested by the PIA officials and subsequently due to his absence, the order of interim pre-arrest bail was recalled.
This does not show a deliberate and intentional absence of the applicant/accused Sheeraz Ahmed on 21-6-2012. Believing the statement made in application (M.A. No, 4389 pf 2012) and its supporting affidavit, the order dated 21-6-2012 of cancellation of interim bail granted to the accused Sheeraz Ahmed is recalled and he be treated on the same earlier position. He should be released forthwith, if found arrested in this case. Need arises to observe here tentatively that to restore the confidence of public in institutions and to eradicate excessive use of powers conferred upon the public functionaries, the proceedings under sections 3, 4 of Contempt of Court Act,' however, shall be continued, separately.