' ZAFAR AHMED RAJPUT, J.---Through instant Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners seek setting aside of the order dated 26.07.2014 passed by the learned 2nd Additional District Judge, Mirpurkhas in Civil Revision Application No. 07 of 2014, upholding the order dated 11.03.2014, passed by the learned 2nd Senior Civil Judge, Mirpurkhas, whereby the application under Order XIV, Rule 5, read with Section 151, C.P.C. , filed by the petitioners/ defendants Nos. 1 to 7 in F.C. Suit No. 49 of 2012, was dismissed.
2. Briefly stated, the relevant facts of the case are that the respondent No 1/plaintiff has filed F.C.
Suit No. 49 of 2012 before the learned 2nd Senior Civil Judge, Mirpurkhas alleging therein that in 1950-60 the people of Satellite Town, particularly the Malik Community, started a "Madarasa", thereafter, few people of the locality formed an Association and got it registered in 1962 and in the memorandum of Association, the said Madarasa was given the name of "Madarasa Ghousia Taleem-ul-Quran Ahle Sunnat Wal Jamat (Hanfee) Mirpurkhas". It is further stated that according to the said, Memorandum, the tenure of the elected body is one year, and The tenure of the present body has expired in October, 2011 but still it is working. It is also stated that the plaintiff is a founder member of the Association and in this connection he approached to defendant No. 8 (Provincial Registrar, Joint Stock Company, Hyderabad) but the defendant No. 8 showed his inability and advised him to seek his remedy from the Court of law. As such, cause of action arose to plaintiff to maintain the suit for declaration, mandatory and prohibitory injunctions against the petitioners/defendants with the following prayers:
(A) DECLARATION to the effect that since there had been no election of the Madarasa as per the Memorandum of Association, hence all those claiming to be the body of Madarasa are not legally authorized to make such claim particularly defendants Nos. 1 to 7, (A-1) Managing Body elected on 15.04.2012 is illegal, improper, wrong, mala fide, fictitious and having no legal entity and body elected during the pendency of this suit will also be fictitious and having no legal entity.
(B) DECLARATION to the effect that since the - defendants Nos. 1 to 7 have been continuing working without any election, therefore, till such time the election is held as per memorandum of Madarasa nobody is entitled to deal with the affairs of the Madarasa.
(C) DIRECT the defendant No. 8 to ensure election of the Madarasa as per Memorandum of the Madarasa duly registered with it.
(D) PERMANENT INJUNCTION be issued against the defendants Nos. 1 to 7 restraining and prohibiting them from claiming themselves to be presiding General Secretary etc. Or any other person to be body of the Madarasa being without election as per the requirement of law and Memorandum of Association.
(E) COSTS be borne by defendants.
(F) ANY other relief which may deem fit and proper to this Hon'ble Court.
3. Petitioners/defendants Nos. 1 to 7 have tiled their written statement wherein they denying the case of the respondent No. 1/plaintiff specifically claimed that the plaintiff is not a member of the Association and having no concern with the Association, except the tenant in the shop of the Association. They have also asserted that the plaintiffs suit is not maintainable as the same has been filed after allowing rent application against him and the same has been tiled to make a defence. They have further claimed in their written statement as additional plea that prior to subject suit, a suit bearing F.C. Suit No. 89 of 2011 was filed wherein the plaint was rejected by the learned Trial Court vide order dated 08.10.2011 but such fact was concealed by the plaintiff.
4. From pleadings of the parties, on 27.04.2013, the learned Trial Court framed following issues:---
(1) Whether the suit is not maintainable?
(2) Whether the body elected on 15.4.2012 is illegal, fictitious having no legal entity?
(3) Whether the defendants Nos. 1 to 7 being elected through illegal election are not entitled to deal with affairs of the Madarasa?
(4) Whether the plaintiff is entitled for any relief as claimed?
(5) What should the decree be?
5. Thereafter, on 19.1.2014, the defendants Nos. 1 to 7 filed an application under Order XIV, Rule 5, read with Section 151, C.P.C., for amendment of following issues:
(i) Whether the plaintiff is member of Association and his membership is still intact or not?
(ii) Whether the plaintiff filed this suit only for defence of rent application?
(iii) Whether the F. C. Suit No. 89 of 2011 rejected was on same grounds?
6. After hearing the learned counsel for the parties, the learned Trial Court dismissed the said application vide order dated 11.03.2014, holding that the proposed issues are not necessary to resolve the controversy between the parties; that the matter is fixed for final arguments as the side of the defendants Nos. 1 to 7 for evidence was closed by the Court due to their negligence, which was subsequently opened by imposing cost of Rs. 2,000/- but the defendant's Nos. 1 to 7 instead of depositing the cost filed a revision application, which is still pending adjudication before the District Judge, Mirpurkhas, and at this belated stage the defendants Nos. 1 to 7 want to get their side for evidence opened technically by moving this application.
7. The defendants Nos. 1 to 7 impugned the said Order of the learned Trial Court dated 11.3.2014 before the learned District Judge, Mirpurkhas in a Civil Revision, under section 115 of C.P.C., bearing No. 07 of 2014, which was heard and dismissed by the learned 2nd Additional District Judge, Mirpurkhas, vide Order dated 26.7.2014. Against this Order, the petitioners/defendants No. 1 to 7 have preferred this Constitutional petition.
8. We have heard the learned counsel for the petitioners and perused the material available on record.
9. Mr. Rana Sohail Mehmood, the learned counsel for the petitioners has inter alia contended that the respondent No. 1/plaintiff, who is not a member of the Association but a tenant in a shop of the Madarasa, has falsely claimed himself in his civil suit as one of the founder members of the Association, despite the fact that the petitioners/defendants No. 1 to 7 have specifically denied the said claim and locus standi of the plaintiff to challenge the election of the Association in their written statement, the learned Trial Court did not frame any issue on this factual controversy. He has also contended that the learned Trail Court while framing issues in the civil suit failed to take in consideration the defence plea of the petitioners, so also the fact that on the similar set of facts the learned Trail Court has already dismissed a civil suit bearing No. 89 of 2011; therefore, the suit of the respondent No. 1 is barred under section 11 of the. C.P.C., but the learned Trial Court did not frame any issue on this legal point; therefore, the petitioner filed an application for amendment of issue, which ought to have been allowed but the learned Courts below failed to examine the pleadings of the parties and to consider the issue sought to be amended, which are in fact legal issues and very necessary to be amended to decide the controversy between the parties properly and consequently committed error in passing the impugned orders, which are liable to be set aside.
10. We have given our anxious consideration to the contentions raised by the learned counsel for the petitioners.
11. With the exception of the reasons assigned by the learned Trial Court for rejection of the petitioners' application for amendment in issues, it appears that the petitioners have proposed three additional issues in their said application. In our view there is no necessity of framing issues of the nature proposed at serial (i) and (iii) as the same relate to the locus standi of the plaintiff to maintain the suit and res-judicata, which stands reflected in the issue already framed by the Trial Court as Issue No. 1 i.e. Whether the suit is not maintainable. As maintained by the petitioners, the respondent No. 1/ plaintiff is not a member of the Association of Madarasa Ghousia Taleem-ul- Quran Ahle Sunnat Wal Jamat (Hanfee) and he is just a tenant in the shop of the said Madarasa, then accordingly the suit filed by him seeking declaration and injunction with regard to the holding of the election of the said Association and working of its elected body may not be maintainable in law as he would not have any locus standi or legal character to maintain the said suit. Similarly, if any previous decision in F.C. Suit No. 89 of 2011 operates as resjudicata in subsequent suit of the respondent No. 1, all that can be said is that the subsequent suit being barred under section 11 of the C.P.C. Is not maintainable in law.
12. So far the proposed issue at serial (ii) is concerned, it appears to be argumentative and only an elaboration of the defence plea of the petitioners in the suit. It is suffice to say that under sub-rule
(1) of Rule 1 of the Order XIV, C.P.C. The issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other and under sub-rule (2) the material propositions are those propositions of law and fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. The proposed issue at serial (ii) does not qualify as material proposition of fact or law; it just alleges the motive of the respondent No. 1/plaintiff for maintaining the suit against the petitioners/defendants, therefore, no such issue is required to be framed by the Trial Court.
13. For the forgoing reasons, we have found no illegality or irregularity in the impugned Orders passed by the learned lower Courts below which requires any interference by parties. The Court has repentantly noticed that no evidence as to the actual commission of murder has been collected by the investigating officer during the investigation. When the investigating officer had collected the evidence of abduction of the deceased, then he ought to have collected evidence for the commission of murder. It has been noticed that at the time of getting recovered the dead- body of the deceased in an interrogatory way, the appellants confessed to have murdered the deceased to his burial but that part of statements of the PWs being inadmissible cannot be read as an evidence, therefore, relying upon Article 40 of the Qanoon-e-Shahadat Order, 1984, only to the extent of discover or recovered event can be taken into consideration whereas the disclosure of an accused cannot be read as an evidence and simultaneously cannot be relied upon, therefore, there is no obsession with the Court to hold that the prosecution has miserably failed to prove the charges under section 302/34, PPC against the appellants, therefore, the conviction and sentence of the appellants under the said provisions of law is hereby set aside.
15. Now we have other piece of evidence of recovery of the dead-body. Though jointly the appellants pointed out and got recovered the dead-body but it may goes out being joint one but at the same time when the dead-body was identified by the PWs, his cause of death was unnatural as has been declared by the doctor, this technical aspect of the case may be ignored in the larger interest of justice, therefore, conviction and sentence of the appellants under section 364/ 201, PPC is maintained and their appeal qua the said charges is dismissed.
16. Needless to dilate upon the recovery of weapons of offence including the Kassi because no evidence exists to lead being murdered by the appellants, however, the quantum of sentences under the penal provisions of law in which the appeal stands dismissed can be taken into consideration and the discretion lies with the Court to reduce it appropriately. It has been noticed that the appellants were apprehended in this case on 15.05.2006 while in police custody they earned the conviction and sentence but they were allowed bail by this Court by suspending their quantum of sentences on 17.05.2010 and even if the period of incarceration of the appellants is reckoned, then it goes to four years whereas for the last about nine years, they are in the corridors of the Courts. Under section 201, PPC, they are convicted and sentenced to three years' rigorous imprisonment, which they have already undergone whereas under section 364, PPC to undergo ten E years' rigorous imprisonment, so by taking a lenient/clement view their quantum of sentences are reduced upto the periods already undergone. They both are on bail, therefore, their sureties are discharged from their liabilities. By these modifications in the convictions and sentences of the appellants, instant appeal stands dismissed.
17. In view of decision in Crim. Appeal No. 1381 of 2007 by modifying the convictions and sentences of the appellants/respondents herein, Crim. Revision No. 779 of 2007 has lost its relevance, thus, the same is dismissed accordingly. Convictions/Sentences Modified/