' This petition under Article 199 of the Constitution was against an order of Additional District Judge, Sialkot dated 16-12-1992 affirming an order of the trial Court passed on 24-9-1992 restoring the plaintiffs suit for recovery of possession of a piece of property in Sialkot City for its trial on merits in accordance with law.
' Brief facts of the case are :- Suit for possession based on title was instituted by Mst. Rehmat Bibi on 17-5-1990 against Muhammad Riaz petitioner in the Civil Court at Sialkot. Petitioner resisted the suit.
Trial Court raised necessary issues arising for decision from the pleadings of the parties and postponed the suit for taking of evidence on 19-1-1991. Prior to it, the suit was transferred by an administrative order to another Court. On the date already fixed in the suit, the transferee Court issued notice pairvi to the counsel for the parties for 13-2-1991. On the adjourned date, counsel for the plaintiff informed the Court about the demise of the plaintiff and requested for time for filing of an application for the substitution of legal representatives. The case was, consequently, adjourned to 2-3-1991. On the adjourned hearing, counsel for the deceased plaintiff again requested for time because he had not been able to maintain contact with the legal heirs of the deceased plaintiff.
Therefore, the hearing was adjourned to 24-34991. On 24-3-1991, the Presiding Judge was on leave and the case was adjourned for filing of the application for substitution of legal representative on 28-3-1991. On this date of hearing, none appeared for the plaintiff, whereas the counsel for the defendant was in attendance. Consequently, the suit was dismissed for non-prosecution by the trial Court by observing that the plaintiff may have left with no interest in the suit.
' On 30-7-1992, the legal representatives of the deceased plaintiff applied to the trial Court for restoration of the suit dismissed for non-prosecution on 28-3-1991. Defendant to the suit resisted the restoration application. It was stated that besides absence of sufficient cause for restoration of suit, the petition for restoration was barred by limitation. Without taking evidence but hearing arguments on merits of the restoration application, the trial Court vide its order dated 24-9-1992 restored the suit for its trial on merits. Petitioner assailed the restoration order in revision before the District Judge, Sialkot who marked the revision for hearing to an Additional District Judge in the District. Vide order dated 16-12-1992, the revision was dismissed. Hence, this petition in Constitutional jurisdiction at the instance of the petitioner.
' It was urged that there was neither sufficient cause for restoration of the suit nor was the petition filed in time. Further, no application under section 5 of the Limitation Act, 1908 accompanied the restoration application for explaining the delay.
' Original plaintiff Mst. Rehmat Bibi died on 22-12-1990. List of legal representatives of deceased plaintiff accompanied the plaintiff as required by rule 26 of ONer VII, C.P.C. Its copy was not filed alongwith the writ petition nor was its record shown at the hearing. Therefore, it was difficult to ascertain as to who in the event of death of the plaintiff was required to intimate such fact to the Court. Fundamental changes were introduced in Order XXII of Civil P.C. By Ordinance, XII of 1972 and the concept of abatement of civil proceedings was wholly done away with. Present was a case of sole plaintiff. Upon her death, right to sue and continue the suit survived to her heirs. List of legal representatives of the deceased plaintiff was already on file of the trial Court. However, no intimation was given about the death of the plaintiff by a person nominated in the list of legal representatives. Nevertheless, the counsel ' for the deceased plaintiff informed the Court of the death of the plaintiff. Therefore, the trial Court had the necessary information about the demise of the plaintiff and as for her legal representatives, their names were already on file of the trial Court in the list of legal representatives submitted by the deceased plaintiff alongwith the plaint. In view of the amended provisions in Order XXII, C.P.C. If no intimation is given about the death of parties to the suit, the Court can proceed with the suit and any order or judgment made in such circumstances shall be valid and binding on the parties, as if death had not taken place. There was no cavil with the above statement of law. Amended rule 9 of Order XXII CPC gave right to the legal representatives of a deceased plaintiff or defendant to apply to the Court passing the order or judgment for setting aside of it on proof of sufficient cause preventing their appearance before the Court. Application under rule 9, sub-rule (2) was required to be made within 60 days of the date of the order or the judgment. Section 5 of the Limitation Act, 1908 for explaining and condoning the delayed filing of the application for setting aside of the order or judgment passed under rules 3 or 4 of Order XXII, C.P.C. Was inapplicable. Previously, it was applicable to the petitions for setting aside of the abatement under unamended rule 9 of Order XXII, C.P.C. Corresponding amendments were also introduced in Article 171 of the Limitation Act, 1908. Without application of section 5, cases could be visualized of injustice, upon expiry of the period of limitation prescribed in Article 171 of the Limitation Act, 1908. Therefore, desirability of making section 5 of the Limitation Act applicable to the applications under sub-rule (2) of rule 9 of Order XXII, C.P.C. Required consideration by the appropriate quarters. Obviously, adjudication under sub-rule (2) of rule 3, sub-rule (3) of rule 4 of Order XXII, C.P.C. Was on merits, though in absence of the deceased party. The term 'order' has been defined in section 2 (14) of C.P.C. And 'judgment in subsection (9) of section 2 ibid'. Therefore, the term `order' in sub-rule (2) of rule (3) and sub-rule (3) of rule 4 in Order XXII, C.P.C.
Contemplated adjudication on merits. Article 171 prescribed 60 days from the date of such an order for setting aside of it. An order for dismissal for non-prosecution which in fact was an order for dismissal of the suit for default in appearance in my view was not contemplated in the aforesaid sub-rules of rules 3 and 4 of Order XXII, C.P.C.. In the instant case, the plaintiff was dead. Her counsel had informed the Court about her death. Authority given to him came to an end with the demise of the plaintiff. Therefore, default in appearance could not be a ground for dismissal of the suit on this score. In my view, sub-rule (2) of rule 9 of Order XXII, C.P.C. Was inapplicable to the facts of this case. Instead, proper rule to apply shall be rule 9 of Order 9 read with section 151 of the Code of Civil Procedure. Section 5 was applicable to the applications under rule 9 of Order 9, C.P.C. It shall be of some advantage to notice that in the commentary of Civil P.C. By Amar Raza, under rule 3 of Order XXII (page 711) it is noted that "however, if the Court comes to know of the death of the plaintiff as for instance where the sole plaintiff dies, but no application under sub-rule (1) has been made, the Court should itself send notice to the legal representatives nominated by the deceased under Order 7, rule 26". Similarly, at page 721 of the book, an observation to the effect "the Court can now even implead legal representatives suo motu on the basis of lists given under Order 7 rule 26 and Order 8 rule 13" existed. No authority was, however, quoted by the learned commentator in support of his view. Opinion expressed above by me respecting applicability of rule 9 of Order 9, C.P.C. To the facts of the instant case found support from the cases in Moulvi Noor Ahmad v. Qari Raza al Mustafa Azami and 3 others, 1989 CLC 1439 (Karachi). Mst. Iffat Masood and 2 others v. Rehmat All PLD 1990 Lahore 359 (this case was decided by me), Mst. Umatullah v. Maqbool Hussain and 4 others, 1990 MLD 2263 (Lahore). Since the suit was dismissed for non-prosecution in absence of the legal representatives of the deceased plaintiff and they expressed no knowledge of it, sufficient cause was made out deserving restoration of the suit for trial on merits. Therefore, it shall be inequitable to interfere for stopping the decision of suit on merits between the parties.
' The result, therefore, is that writ petition must stand dismissed in limine. Records be returned.
' This observation shall be read in continuity of the pervious order of this Court by which writ petition was dismissed in limine on 18-4-1993. At the hearing, it was urged that section 5 of the Limitation Act, 1908 was inapplicable to the amended Order XXII, rule 9 of Civil P.C. On the assumption that the learned counsel gave correct exposition of the amended law, I made certain comments in the body of my judgment and I thought that section 5 may be made applicable to avoid cases of visualised miscarriage of justice. Today, I came across the amendments made in the Code of Civil Procedure by Act IV of 1990, Code of Civil Procedure (Amendment) Act, 1989 published in Gazette of Pakistan on 8th January, 1990 by which section 5 of the Limitation Act was made applicable to applications under sub-rule (2) of rule 9 of Order XXII, Civil P.C. To this extent, therefore, the judgment is reviewed and it is held that section 5 of Limitation Act, 1908 was applicable to amended rule 9 of Order XXII, Civil P.C. From the date of enforcement of Act IV of 1990.
Petition dismissed. PLD 1993 Lahore 456 Before Gul Zarin Kiani, J MUHAMMAD ISI-IAQUE and 2 others--Petitioners versus DISTRICT JUDGE, SARGODHA and 3 others-Respondents Writ Petition No,11973 of 1992, heard on 20th April, 1993.
Punjab Pre-emption Act (XI of 1991)- 6 & 35---Pre-emption suits instituted or pending between 1-8-1986 and 28-3-1990 and dismissed, could be revived by an application moved within sixty days of the commencement of Punjab Pre- emption Act, 1991, in case right of pre-emption claimed in those suits was available under the new Act---Revival of such suits was subjected to period of limitation and performance of Talb- eIshhad---Plaint of suit in question, did sufficiently indicate a reference to the performance of rituals of Talabs but gave no indication of "Zaroorat" or avoidance of "zarar" in it---Right of pre- emption would be exerciseble only in case of "zaroorat" or to avoid "zarar" in terms of S. 6(2), Punjab Pre-emption Act, 1991---Omission of a clear statement about "zaroorat" or avoidance of "zarar" for claiming pre-emption was fatal to the suit---Plaint in the preemption suit in its existing form, thus, could not qualify for success under the new Act---For resurrection of a dismissed pre-emption.
Suit for its re-trial on merits, existing plaint alone was to be looked into without importing any foreign material into plaint---Suit could not be restored for want of pleas of "zaroorat" or for avoidance of "zarar" in the plaint. [p. 458] A Muhammad Iltaf v. Muhammad Nawaz 1992 MLD 1207; Fazal Ellahi and 2 others v. District Judge, Attock and 3 others 1993 CLC 85 and Falak Sher v.
Muhammad Mumtaz and 2 others 1992 MLD 1879 rel. Muhammad Shahzad Shaukat for Petitioners.
Rana Liaqat Ali Khan for Respondents Nos.2 to 4. Date of hearing: 20th April, 1993.
' Ninety-two Kanals of agricultural land situate in Chak No, 30/Janubi of Tehsil Sargodha belonged to Mst. Rashida Bcgum and two others. By deed registered on 15-1-1989, they sold it in favour of the petitioners for a sum of Rs,6,00,000. Respondents No,2 to 4 claimed pre-emption in respect of the above sale and brought a pre-emption suit for it on 11-2-1989. Superior right of pre-emption was asserted on the ground of being co-owners and participators in immunities. On 31-7-1990, the pre- emption suit was dismissed in the trial Court on the ground that decree in it could not be passed.
No appeal or revision was taken from the dismissal of the suit. Consequently, it attained finality under the law.
' On 4-10-1990, respondents No, 2 to 4 brought a miscellaneous petition under section 36 of Punjab Pre-emption Ordinance, 1990 for resurrection of the pre-emption suit for its trial on merits in accordance with law. Petitioners contested the application. By decision dated 11-7-1991, civil miscellaneous was dismissed by the trial Court. Respondents Nos.2 to 4 preferred a revision to learned District Judge, Sargodha. By his order passed on 30-11-1992, revision was allowed and the pre-emption suit after its revival was remanded to the trial Court for its decision on merits.
Conclusion of the impugned order is summed up in its para 5. It reads, "In view of the above discussion, I admit the revision, set aside the impugned order and allow the application moved under sections 35 and 36 of the Pre-emption Ordinances and Act and restore the preemption suit filed by the plaintiffs petitioners and remand it to the Court of Mr. Zaheer-ud-Din, Civil Judge Ist Class, Sargodha." This decision was questioned in extra-ordinary jurisdiction of this Court by the petitioners. On 21-12-1992, their petition was admitted to hearing and further proceedings before the trial Court were stayed.
In terms of subsection (1) of section 35 of Punjab Pre-emption Act, 1991 (Act IX of 1991) pre-emption suits instituted or pending between 1-8-1986 and 28-3-1990 and dismissed could be revived on an application moved within sixty days of the commencement of the above Act, in case the right of pre-emption claimed in those suits was available under the new Act. Revival in subsection (1) was subjected to subsection (2) of section 35 regarding period of limitation and the performance of `Talab-e-Ishhad'. A glance at the plaint of the pre-emption suit would sufficiently indicate a reference to the performance of rituals of Talabs but it gave no indication of `Zaroorat' or avoidance of `Zarar' in it. The plaint was silent on this score. In fact, there was no averment, whatsoever, regarding `Zaroorat' or avoidance of `Zara? In the plaint of the pre-emption suit.
Section 6(2) of Act IX of 1991 provided that right of pre-emption shall be exercisable only in case of `Zaroorat' or to avoid 'Zarar'. This was notwithstanding the statement of qualifications for pre- emption enumerated in subsection (1) of section 6 of the Act. Language of subsection (2) was imperative. In Muhammad Iltaf v. Muhammad Nawaz 1992 MLD 1207, Fazal Ellahi and 2 others v.
District Judge, Attock and 3 others 1993 CLC 85, I had an occasion to express on the fulfilment of imperative requirement of subsection (2) of section 6 in the plaint of a pre-emption suit. I took the view that omission of a clear statement about `Zaroorat' or avoidance of `Zarar' for claiming pre- emption was fatal to the suit.This view was upheld in the Supreme Court. My learned brother Munir A. Sheikh, J. In case of Falak Sher v. Muhammad Mumtaz and 2 others 1992 MLD 1879 subscribed to similar view. As a necessary corollary of the above line of thinking in the Court, it was evident that the plaint of the pre-emption suit in its existing form could not qualify for success under the new law of preemption. Without amendment to the plaint for incorporation of a statement about `Zaroorat' or avoidance of 'Zara? In it, revival of the suit could not take place. I am afraid amendment towards the above end for ordering revival of the dismissed pre-emption suit was open to grave doubts. If the revival of the dismissed pre-emption suit was valid in strict compliance with the saving clause in section 35 of Punjab Pre-emption Act, 1991, subsequent amendment to the plaint was in the discretion of the Court. But for resurrection of a dismissed pre- emption suit for its retrial on merits, in my opinion, existing plaint alone was to be looked at without importing any foreign material into it. When the matter was looked at in this perspective, I could not persuade myself to agree with the learned District Judge for upholding his view. I would, accordingly, accept the petition, set aside the impugned order and restore the order passed by the trial Court dismissing the revival application with no order as to costs regarding this litigation in all the Courts.
PLD 1993 Lahore 459 Before Ausaf Ali Khan and Mian Abdul Khaliq, JJ ABDUL JAB BAR---Appellant versus THE STATE---Respondent Criminal Appeals Nos.10 and 11 of 1992, decided on 13th April, 1993.
(a) Penal Code (XLV of 1860)--- ----S. 392---Appreciation of evidence---F.I.R. Containing minute details of the incident had been recorded with promptitude without deliberations and preliminary investigation---Names of accused having come to the knowledge of the police and the prosecution witnesses on the day of occurrence, there was no need of any identification parade of the accused---Recovery of incriminating articles at the instance of accused had supported the prosecution case--- Prosecution witnesses who had no animus or motive against accused had given a straightforward and reliable evidence---Conviction of accused was maintained in circumstances with reduction in sentence which appeared to be harsh. [pp. 465, 466] A, B & D
(b) Criminal Procedure Code (V of 1898)--- ----Ss. 242 & 537---Penal Code (XLV of 1860), S.392---Omission by Trial Court to separately record the question-answer of the accused while framing formal charge had not caused any miscarriage of justice to the accused and the defect, if any, was curable under S.537, Cr.P.C. Without causing any damage to the validity of the trial. [p. 466] C Sadaqat Ali for Appellant.
Ashraf Akhtar for the State.
Date of hearing: 13th April, 1993.
' MIAN ABDUL KHALIQ, J.---The criminal appeals have been filed against the judgment dated 12-4- 1992 passed by Mr. Fakhar-ud-Din Siddiqui, Judge, Special Court for Suppression of Terrorist Activities (constituted under the Special Courts) Act, 1975, Bahawalpur Division, Bahawalpur whereby the appellants were convicted and sentenced to undergo ten years' R.I. Each and a fine of Rs,Two lacs each, in default of payment of fine to further suffer three years' R.I. Each in case F.I.R.
197/91 dated 13-7-1991 registered at Police Station Kot Samaba, District Rahimyar Khan under sections 392/411, P.P.C.
2. Shabbir Ahmad, absconder-accused, alongwith appellants was tried in absentia and was also sentenced as stated above. This judgment shall dispose of Cr. Appeal No,SC(T)10/92/BWP and Cr.A.
No, SC(T) 11/92/BWP as both of them arise out of the same judgment.
3. Briefly, the prosecution case is that P.W. 1, Mukhtar Ahmad on 13-7-1991 at the spot made the statement Exh.PA to the effect that he was working as Munshi of Syed Azhar Ali Shah, owner of National Petrol Pump service in the area of Chak No, 78-P and on 13-7-1991 he alongwith Abdul Hakeem P.W.2, employed as Oilman, and Muhammad Aslam P.W. 3 were present at the petrol pump at about 3-00 p.m. On Motor Cycle Yamaha 100 c.c. Red colour without registration number, three persons, one of them blackish colour, thin body, long stature wearing light blue colour Shalwar-Qamiz with .7 mm rifle; the second one, blackish colour, thin body wearing cream colour Shalwar-Qamiz, armed with .30 bore pistol and third one wheatish colour of middle body wearing white colour Shalwar-Qamiz armed with .30 bore pistol, all with muffled faces, reached there. The person taller in height armed with .7 mm. Rifle fired. The other two armed with pistols entered the show room and demanded the keys of the cash drawer. The complainant refused on which one of the accused gave a slap on his face and due to fear, he handed over the keys. The accused took out Rs, 9,568 cash with identify card, a driving licence of Habib Ullah, Driver and also forcibly got removed Seiko-5 wrist watch from the wrist of the complainant. Both the accused made firing in the show room all the three accused were speaking rustic Punjabi. The accused present outside who was armed with .7 mm. Klashnikov addressing the accused in the show room said "Amjad hurry up". The accused after locking the complainant in the show room while firing bolted the show room and went on motor-cycle towards Rahimyar Khan. The above mentioned P.Ws. Had witnessed the occurrence and due to fear, the P.Ws. Did not go after the accused. The complainant had sent for owner of the petrol pump from Rahimyar Khan. The empties were present at the spot and the complainant was waiting for the owner of the Petrol Pump.
4. P.W.12, Muhammad Yousaf, S.H.O., P.S. Kot Samaba had reached the spot after the receipt of information and recorded statement Ex. PA of the complainant P.W.1 and sent the same to the police station through Muhammad Sarfraz, Constable where on its basis formal F.I.R. Exh.PA/1 was recorded. P.W.12 secured two empties of .7 m.m Klashnikov type from near the place of occurrence from the courtyard and from the show room five empties of .30 bore pistol P.1/1-5 vide memo Exh.PB attested by P.Ws.2 and 3. The appellants were formally arrested on 29-7-1991 by P.W.12, Muhammad Yousaf who after completion of investigation had challaned the appellants.
5. The appellants were formally charged under section 392, P.P.C. To which they denied and claimed trial.
6. The prosecution had examined 13 P.Ws, in all to substantiate its case. P.W. 1, Mukhtar Ahmad, complainant narrated the facts mentioned by him in complaint Ex. PA and also stated that on 4-8- 1991 after the recovery of National Identity Card and driving licence from the accused, he had identified the same. P.W.2, Abdul Hakeem, an eye-witness had stated that on 13-7-1991, he alongwith P.W.3, Muhammad Aslam and Mukhtar Ahmad P.W.1 was present at the National Petrol Pump when three persons on a Yahmaha motorcycle reached and Abdul Jabbar accused was armed with Klashnikov who made firing outside the Petrol Pump. The accused looted Rs,9,568, wrist watch, his National Identity Card and driving licence of Habib Ullah Driver. After the incident, the police reached and secured five empties P.1/1-5 and two big empties Exh.P.2/1-2 from the spot vide memo Ex. PB thumb marked by him.
' P.W.3, Muhammad Aslam, eye-witness had stated that on 13-7-1991 at about 3-00 p.m. He was present with P.Ws. 1 and 2 at the spot where three persons reached. Abdul Jabbar, accused made firing outside and called by name Amjad All appellant in the cash room who also made firing and demanded cash from P.W.1 and on his refusal, one of them gave him slap on his cheek. The accused looted Rs,9,568, wrist watch, national identity card of Mukhtar Ahmad and a driving licence of Habib Ullah, Driver and after the incident, the accused went away on their motor-cycle towards Rahimyar Khan and after about 10/15 minutes, the police reached the spot and collected five empties Ex.P. 1/1-5 and two big empties Ex. P.2/1-2 and secured the same vide memo Exh. PB, thumb marked by him. PW. 3 also joined the investigation on 4-8-1991 when Amjad Ali appellant while in police custody led the police party to his house and got recovered Rs,330 Exh. P.3/1-6 (three notes of rupees one hundred and three notes of rupees ten), one national identity card P. 4 and wrist watch which the police secured vide memo Exh.PC, thumb marked by him. On the same day, Abdul Jabbar, appellant, led the raiding party to his house and got recovered Rs,345 Exh. P.6/1-8 (one five-rupee cote, 4 notes of Rs,10 and three notes of Rs,100) in his presence., Abdul Jabbar also produced licence of Habib Ullah Driver which was secured vide memo Exh.PD thumb marked by him.
' Habib Ullah, P.W.4 on 4-8-1991 joined the police investigation and in is presence Amjad Ali, appellant led to the recovery of Rs,330 Ex. P.3/1-6 (3 otes of rupees one hundred and 3 notes of rupees ten), one national identity ird, one wrist watch in his presence and the police secured the same vide iemo Exh. PC attested by him. On the same day, Abdul Jabbar, appellant while in police custody led to the recovery of currency notes of Rs,345 Ex. P.6/1-8, one driving licence P.7 of P.W.4 which was secured by the police vide memo Exh.PD attested by him which was snatched from the National Petrol Pump on the day of occurrence. P.W.4 was driver of the owner of petrol pump, Azhar All Shah and was not present at the time of occurrence and his licence was lying there.
' P.W.5, Dilawar Hussain on 13-7-1991 i,e, on the day of occurrence was standing at Pull Sultanpur waiting for the bus and witnessed all the three accused i,e, Abdul Jabbar, Amjad All and absconder coming on motor-cycle from Khanpur side and going towards Rahimyar Khan at about 3-15 p.m.
And had also witnessed that Abdul Jabbar was sitting in centre on the motor-cycle having something wrapped on his hand seemed like weapon. The accused were previously known to him and thereafter he had come to know that all the three accused had committed dacoity and after looting ran away on motor-cycle to Rahimyar Khan. He went to the place of occurrence and narrated the story as stated above.
' P.W.6, Zahid Farooq joined the police investigation on 18-7-1991 when Abdul Jabbar appellant led to the recovery of Klashnikov, one leather bag containing 54 live rounds P.10/1-54, one magazine P.11 containing 15 live rounds Exh. P.9/1-15 and 32 currency notes of rupees one Exh. P.14/1-32 and 3 notes of rupees two Exh. P.15/1-3, wrist watch Exh. P.13 motor-cycle P.16 without registration number which the police secured vide memo Ex. PE attested by him. Amjad Ali, appellant led to the recovery of pistol P.17 from one Almirah and six bullets Exh. P.18/1-6, driving licence of Rashid Farooq and photo-copy of national identity card of P.W.6 Exh. P.19 which were secured by the police vide memo.
Exh. PF attested by him. P.W.7, Muhammad Akhtar joined the police investigation and the police secured driving licence Exh. P.20 and pistol Exh. P.21 from the house of the absconder accused Shabbir Ahmad vide memo Exh.PG attested by him. P.W.8 on 29-7-1991 delivered one sealed parcel in the office of Forensic Science Laboratory, Lahore in tact on 31-7-1991.
' P.W.9, Younis Ali, H.C. While working as Moharrir had received complaint Exh.PA on 31-7-1991 and had, on its basis, correctly recorded F.I.R. Exh. PA/1 and on the same day, the investigating officer delivered him one sealed parcel which he sent to the Forensic Science Laboratory which after objection was returned and again was sent through P.W.8 on 31-7-1991 after removing the objection. The Investigating Officer had handed over to him three more sealed parcels which he kept in Malkhana and thereafter handed over the same to P.W.10 for delivery to the concerned quarter. P.W.10, Imam Bakhsh on 18-8-1991 had delivered three sealed parcels in the office of Forensic Science Laboratory, Lahore in time. P.W.11, Manzoor Ahmad has received written proclamation Exh.PH in respect of the absconder/accused Shabbir Ahmad which could not be traced and made report Exh. PH/1.
' P.W.12 Muhammad Yousaf, S.H.O. Inspector on 13-7-1991 received information of the present occurrence and at 3-45 p.m. Recorded the statement Exh.PA of P.W.1 and sent the same to police station for registration of the case. He secured two empties of Klashnikov P.2/1-2 and five empties of pistol P.1/1-5 from the place of occurrence and made it into a sealed parcel and secured vide memo Exh.PD, and complete the formalities at the spot.
' Appellants Abdul Jabbar and Amjad All were arrested by B-Division Police and P.W.12 formally arrested them on 29-7-1991 and on 4-8-1991 Amjad All appellant in police custody led to the recovery of Rs,330 Exh. P.3, national identity card, wrist watch P.5 which he secured vide memo Ex.
PC. Abdul Jabbar, appellant on the same day while in police custody had led to the recovery of Rs,345, Exh.P.6/1-8 and one driving licence Exh. P.7 of Habib Ullah and P.W.12 secured the same vide memo. Exh.PB. On 10-8-1991, he secured the deadly weapons recovered by B-Division Police and sent the same to Forensic Science Laboratory P.W.12 prepared report under section 173, Cr.P.C. And challaned the appellants. P.W,13, Muhammad Iqbal, Si. Had submitted an application before the Ilaqa Magistrate for obtaining the proclamation order of Shabbir Ahmad.
7. The appellants Abdul Jabbar and Amjad All when examined under section 342, Cr.P.C. Denied the prosecution evidence against them and stated that the police had created a fabricated case against them. They produced D.W.1, Ashiq Hussain, D.W.2, Muhammad Siddiq D.W.3, Abdul Jabbar D.W.4, Muhammad Yousaf in defence and also made statements on oath under section 340(2), Cr.P.C.
8. D.W.1, Ashiq Hussain stated that the police took away Abdul Mbar, Appellant on 13-7-1991 at about 9/10-00 p.m. From the shop of D.W.1 and at the time of the arrest of the appellant, Shabbir Ahmad absconder/accused ran away. D.W.1 further stated that Shabbir Ahmad absconder co-accused of Abdul Jabbar had been involved in criminal cases due to enmity with Sangi, P.W. D.W.2, Muhammad Siddiq stated that police arrested Abdul Jabbar, appellant on 13-7-1991 at about 9/10- 00 p.m. When he was sitting at the shop of D.E.3. Abdul Jabbar appellant appeared as D.W.3 to state that the was arrested by the police on 137-1991 from his shop at about 9. 10/00 p.m. Shabbir Ahmad, absconder/accused was sitting with him and after witnessing the police party, he ran away and he was falsely arrested by the police and was innocent. D.W.4, Muhammad Yousaf deposed that he was a welder helper in Lever Brothers at Rahimyar Khan. Amjad appellant was working as Fitter/helper in the same factory and on the day of occurrence i,e, 13-7-1991, Amjad Ali, appellant was present on duty from 7-00 a.m. To 9-00 p.m. Amjad Ali, appellant made statement on oath as D.W.5 and stated that he was a Pipe Fitter/helper in Lever Brothers and remained on duty on 13-7-1991 from 7-00 a.m. To 9-00 p.m. Alongwith D.W.4 and after duty hours, both of them came to the house of D.W.4 for dinner when he was arrested by the police.
9. We have heard learned counsel for the appellants, learned State counsel and have perused the record. The learned Defence counsel has vehemently urged that the appellants are innocent, they have been falsely involved and moreover their names are not mentioned in the F.I.R. And no identification parade was held and the recoveries have been planted on them.
10. No doubt, the names of the appellants are not mentioned in the F.I.R. Exh.PA/1 recorded on the basis of complaint Exh. PA, The descriptions and contours of the body of the appellant have been given in the F.I.R. Exh. PA/1, the weapons carried by them, the names of the witnesses, the manner in which the occurrence took place and the role played by each of the accused. The appellants after the commission of the offence escaped from the scene with the robbed amount, i,e, identity card of P.W.1, his Seiko watch, driving licence of P.W.4, Habib Ullah, motor-cycle unregistered Yamaha, red colour on which they had come and committed the robbery. P.W.12, Muhammad Yousaf, Inspector S.H.O. On receipt of the information of the present occurrence had reached the spot and had drafted complaint Exh.PA on the statement of P.W.1, Mukhtar Ahmad, complainant at 3-45 p.m.
On the same day i,e, after about 45 minutes of the occurrence wherein all the details of the occurrence had been narrated by P,W.1. No doubt, the appellants were not previously known to the PWs mentioned in F.I.R. And had muffled their faces when they arrived at the scene on Yamaha, red colour unregistered.
' It is pertinent to mention here that P.W. 5, Dilawar Hussain on 13-7-1991 at about 3-00 p.m.
Alongwith Abdur Rashid, Chairman Zakat and Ushr Committee was standing at Pull Sultan and waiting for the bus and witnessed the appellants alongwith the absconder accused coming on a red motor-cycle from Khanpur side and going towards Rahimyar Khan at about 3-15 p.m. And P.W.5 also witnessed that Abdul Jabbar, appellant was sitting in the centre having something wrapped in his hand. The accused were previously known to him. Thereafter he had come to know that all the three accused had committed dacoity and after looting, they ran away with motorcycle towards Rahimyar Khan. He went to the place of occurrence and had narrated the scene.
' It is important to mention here that on 13-7-1991, the day of occurrence, P.W.12 recorded the statement of P.W.5, Dilawar Hussain under section 161, Cr.P.C. Wherein he had stated as mentioned supra. The accused were previously known to him and he alongwith Rashid Ahmad P.W. (given up) had identified the accused at the relevant time going on the motor-cycle Yamaha, red colour without number. P.W.5, Dilawar Hussain and Rashid Ahmad PW (given up) had given the descriptions of the clothes of the appellants as was stated by P.W.1 in Exh.PA. The F.I.R. Exh.PA/1 was recorded on the basis of the statement of P.W.1 with promptitude i,e, the occcurrence is alleged to have taken place at about 3-15 p.m. On 13-7-1991, P.W.12 received the information of the occurrence, reached the spot and recorded the statement at 3-45 p.m. And sent the same to the police station where F.I.R. Exh.PA/1 was recorded by Younis Ali P.W.9, H.C. On the same day at 4-30 p.m. The distance between P.S. And the place of occurrence is about twelve kilometre. The F.I.R.
Exh.PA/1 had been recorded with promptitude, without deliberations, preliminary investigations and contained the minute details of the incident. The names of the accused had come to the knowledge of the police and the P.Ws. On the day of occurrence i,e, 13-7-1991 as is evident from the statements of P.W.5 and Rashid Ahmad PW (given up) i,e, recorded on the same day under section 161, Cr.P.C. In the circumstances, there was no need of any identification parade of the accused- appellants.
11. The appellants were arrested at first by B-Divisional Police and P.W.12 Muhammad Yousaf formally arrested their in the present case on 29-7-1991, obtained their personal remand, interrogated them and on 4-8-1991, Abdul Jabbar, appellant made disclosure and led the police party to his house and after entering the room from a box lying with the western wall from underneath the clothes took out a plastic envelope which contained three currency notes of Rupees 100 denomination Exh. P.6/1-8, four currency notes of Rs,10 each denomination and driving licence P.7 of Habib Ullah PW. 4 which were secured by P.W.12 vide memo Exh.PD attested by P.W.3, Muhammad Aslam and P.W.4, Habib Ullah P.W.12 had interrogated Amjad Ali, appellant who made a disclosure and led to the police party to his house and after entering the room, he unlocked the trunk and from underneath the clothes took out plastic envelope which contained Rs,100 currency notes Exh.P.3, national identity card of Mukhtar Ahmad, complainant, P.W. 1, Exh. P.4, and a Seiko wrist watch Exh. P.5 which were secured by P.W.12 vide memo Exh.PC attested by P.W.3, Muhammad Aslam and Habib Ullah P.W.4.
It is not out of place to mention here that P.W.1 complainant in his statement Exh.PA had stated about his identity card P.4, Seiko wrist watch P.5, and driving licence P.7 of Habib Ullah P.W.4 which were taken away by the appellants from the place of occurrence. No doubt, the currency notes P.6/1-8 and P.3 secured at the instance of the appellants Abdul Jabbar and Amjad All do not bear any signature, initials or other signs of distinction and if the recovery of the same is thrown away, what about the recovery of P.4, national identity card of P.W.1, his Seiko wrist watch P.5 at the instance of Amjad All and driving licence of P.W.4 of Habib Ullah at the instance of Abdul Jabbar, appellant. P.4, P.5 and P.7 were stated by P.W.1, Mukhtar Ahmad, complainant in his statement Exh.PA on the basis of which F.I.R. Exh.PA/1 was recorded which had already been found to be prompt, without mutual consultation and deliberations. The statements of P.Ws.1 to 5 as well as P.W.6 in whose presence the police had secured Klashnikov P.8, magazine P.11 containing 15 live bullets P.9/1-15, 54 live bullets P.10/1-54, 32 notes of Re.1 each P.14/1-32, three currency notes of Rs,2 each Exh. P.15/1-3, a wrist watch P.13 and motor-cycle Yahmaha, red colour without registration number, Exh.P.16 at the instance of Abdul Jabbar, appellant which were secured by B-Division Police vide memo Exh.PE on 10-7-1991 attested by him are corroborative. P.W.6 had also witnessed the recovery of his identity card P.19, pistol .30 bore P.17 containing 6 live bullets P.18/1-6 secured by S.H.O. B-Division on 18-7-1991. The complainant P.W.1 and P.Ws.2 to 6 had no animus against the appellants and no motive whatsoever to falsely involve them in the present case. They have made their statements in a straightforward manner and reliance can be placed on their testimony and moreover P.W.12, Muhammad Yousaf, Inspector S.H.O. Had no enmity against the accused- appellants. The eye-witnesses had corroborated each other and the defence had failed to point out any material discrepancy or dishonest improvements in their statements. The omission on the part of the learned trial Judge to separately record the question-answer of the appellants while framing formal charge had not caused any miscarriage of justice to the appellants and the defect, if any was curable under section 537, Cr.P.C. With no re-action on the validity of the trial.
12. Pursuant to the above discussion, we are of the view that the appellants were rightly convicted and sentenced by the trial Court. Learned counsel for the appellants had prayed for leniency in the matter of sentence. We think that the sentence awarded to the appellants is really harsh and while maintaining the conviction, we reduce the sentence to imprisonment from ten years' R.I. Each to seven years' R.I. Each. The fine of Rs, Two lacs each is reduced to Rs,10,000 each in default of the payment of fine to further suffer R.I. For six months each. The appellants shall also be extended the benefit of section 382-B, Cr.P.C.
With the above modification in the sentence, the appeal is dismissed.
Sentence reduced. PLD 1993 Lahore 466 Before Ch. Ghulam Sarwar, J SHAIREEN ABDULLAH---Petitioner versus MEHMOOD AKHTAR---Respondent Crl. Misc. No,254/H of 1993, decided on 20th April, 1993.
(a) Criminal Procedure Code (V of 1898)-- ----S. 491---Custody of minors---If a person brought before High Court is minor, the custody must be given to the guardian who is entitled for the same in accordance with law. [p. 468] A
(b) Muhammadan Law-- ----Hizanat---Right of custody of a minors belongs to the mother and nothing can take it from her except her own misconduct---Tenderness of the ages or the weakness of sex of minors also renders a mother's care necessary. [p.468] B Uzma Vahid v. Muhammad Javed Umrao 1988 PCr.LJ 1983 and Muhammadan Law, 1965 Edn., pp.222-223 rel.
(c) Muhammadan Law--- ----Custody of minors---It was not in the welfare of minors that they should remain with the father (respondent)---Hizanat of the minor children lay with the mother (petitioner) and she was entitled to their custody under the said right---Custody of the minors was accordingly directed to be handed over to the petitioner allowing both the parties to move the Guardian Judge for their dispute as to guardianship of the minors for final adjudication. [p. 469] C Muhammad Javed Umrao Miss Uzma Wahid 1988 SCMR 1891 and Mussarat Jabeen v. Dr. Khalid Nawab and another 1990 PCr.LJ 686 ref. Uzma Vahid v. Muhammad Javed Umrao 1988 PCr.LJ 1983 and Muhammadan Law, 1965 Edn., pp.222-223 rel. Mansoor-ur-Rehman Khan Afridi for Petitioner. Muzaffar Hussain for Respondent.
' Mst. Shaireen Abdullah petitioner has invoked the jurisdiction of this Court under section 491, Cr.P.C. For the recovery of her minor children namely Muhammad Iqbal minor aged 3-1/2 years and Ansa, minor, aged 2-1/2 years from the illegal and improper custody of the respondent and handing them over to her, she having the right of Hizanat.
2. The brief facts giving rise to this petition are that petitioner was married to the respondent on 5- 8-1988 and out of the said wedlock two abovenamed children were born. According to the petitioner in December, 1992 the respondent took away the children from the petitioner on the pretext that he was taking them to the paternal-aunt who is residing in Saba. Zar Scheme Multan Road, Lahore but did not return the children. Subsequently he divorced the petitioner which became effective on 3-4-1993. The petitioner tried her utmost to get back the children but the respondent has refused to do so. Vide this Court's order dated 13-4-1993 the respondent was summoned to appear alongwith the said two minors before this Court. Although he did not bring the children for two dates of hearing but he has produced them today in this Court.
3. Mr. Muzaffar Hussain, the learned counsel appearing on behalf of the respondent placed on record the photo copies of the different agreements allegedly entered into between the petitioner and the respondent by which the respondent divorced the petitioner and also a photo copy of agreement in pursuance of which the petitioner allegedly had surrendered her right of Hizanat over the minors and contended that ordinarily dispute as to guardianship should be decided by a Court under the Guardians and Wards Act, 1890 and so long as there are no exceptional circumstances, High Court cannot interfere under section 491, Cr.P.C. To order restoration of custody of the minors to the mother when they are with the father who is a natural guardian. The learned counsel also placed reliance on a judgment reported as Muhammad Javed Umrao v. Miss Uzma Wahid (1988 SCMR 1891) and contended that section 491, Cr.P.C. Is ordinarily not available for declaring a guardian or for determining for all times, question of custody of minor.
4. Conversely the learned counsel appearing on behalf of the petitioner contended that High Court in matters pertaining to the custody of the minors of tender age has got jurisdiction under section 491, Cr.P.C. Which remedy is definitely more efficacious and is to be exercised without prejudice to the rights of the parties to have the matter finally adjudicated upon by the Guardian Court. He placed reliance upon a judgment reported as Mussarat Jabeen v. Dr. Khalid Nawab and another 1990 PCr.LJ 686 and also the judgment of the Hon'ble Supreme Court as cited by the learned counsel for the respondent.
5. I have given my earnest thoughts to the arguments addressed by both sides and have also gone through the material available on record. I find that the relations between the parties have gone strained and there is a separation between them, and rather the respondent has divorced the petitioner. There are two unfortunate minor children aged about 3-1/2 years and 2-1/2 years but they are with the respondent who is the father. Although it is claimed by the respondent that the minor children are with him under some agreement but the important question which falls for determination however, is that if the Court finds that the person brought before it was not being illegally or improperly confined or detained whether the order can be passed regarding the custody of that person. The answer is that if a person is minor the custody must be given to the guardian who is entitled for the same in accordance with law.
6. The next important issue in this case is to consider the Hizanat. As laid down in a judgment reported as Uzma Wahid v. Muhammad Javed Umrao 1988 PCr.LJ 1983 that according to the Fatawai Alamgiri the mother is of all persons the best person entitled to the custody of her infant children during the connubial relationship as well as after its dissolution, and similar is the position as laid down regarding the custody of the infants by the mother in Mohemmadan Law, pages 222- 223 Edition 1965. It is thus clear that this right belongs to the mother and nothing can take it from her except her own B misconduct. Similarly, the tenderness of their age or the weakness of their sex, renders a mother's care necessary. Mohammadan Law supports the mother's natural right to the custody of the children and similarly according to the Hanafi doctrine the mother is entitled to the custody of her daughter until she arrives at puberty. /
7. After having gone through the case law on the subject and after anxious consideration of the arguments I am of the view that it will not be in the welfare of the minors to remain with the father.
The Hizanat of the minor children lies with the mother so she is entitled to the custody of the minor children under the same right. Accordingly I direct that the custody of both the minor children namely Muhammad Iqbal, minor aged 3-1/2 years and Ansa, minor aged 2-1/2 years be handed over to the petitioner. The parties however, for their dispute as to the guardianship of the minors can move the learned Court under the Guardians and Wards Act, 1890 for final adjudication.
Petition allowed. PLD 1993 Lahore 469 Before Zia Mahmood Mirza, J MUHAMMAD FARYAD---Petitioner versus MUHAMMAD ASIF---Respondent W.P. No,10716 of 1991, decided on 20th November, 1991.
(a) Civil Procedure Code (V of 1908)--- IX, R. 13---Constitution of Pakistan (1973), Art.199---Setting aside ex parte decree---Substituted service---Justification---Two Courts below had come to the conclusion on the basis of evidence on record that defendant was not personally served nor did he refuse to accept the summons--- Process-server did not know defendant personally and as per report on the summons, plaintiff had identified him before the process-server---No independent person was present at the time of alleged refusal by defendant to accept service of summons---Process-server did not admittedly affix summons on the outer door or any other conspicuous part of the residence of defendant--- Trial Court had rightly found that resorting to substituted service Was not warranted in circumstances---Courts below had rightly come to the conclusion on the basis of evidence that defendant was not duly served and that he came to know of the ex parte decree when he was dispossessed from the premises in execution of impugned decree---Application for setting aside ex parte decree filed within thirty days of the knowledge of the judgment-debtor (defendant) was thus, within time---Finding of want of due and proper service was by itself a sufficient ground for setting aside ex parte proceeding/decree-No interference was warranted in concurrent findings of Court below in exercise of Constitutional jurisdiction. [p. 474] A
(b) Civil Procedure Code (V of 1908)--- ----0. V, Rr. 17 & 20---Substituted service---Requirement---Where defendant was residing in a different city and procees-server did not know him personally, identification of defendant by plaintiff to process-server, without seeking help from any independent source, order of substituted service did not meet the requirement of law. [p. 474] A
(c) Civil Procedure Code (V of 1908)--- ----0. V, R. 20---Substituted service---Proclamation---Validity---Defendant was residing in Karachi---Publication of proclamation was made in a weekly magazine of Lahore of limited circulation---Such publication could hardly meet the needs of substituted service. [p. 473] C
(d) Civil Procedure Code (V of 1908)--- ----0. IX, R.13---Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction, exercise of--- Setting aside of ex parte decree by Courts below---Plaintiffs could not point out any misreading or non-reading of material evidence on record---Matter of setting aside ex parte decree rested in the discretion of Courts below which was not shown to have been exercised arbitrarily or capriciously so as to warrant interference by High Court in Constitutional jurisdiction---Law favours adjudication on merits; and impugned orders of Courts below were in accordance with such principle---No interference was thus, warranted with concurrent findings of Courts below in exercise of Constitutional jurisdiction. [p. 474] B Mian Saqib Nisar for Petitioner.
' This Constitutional petition is directed against the order of the trial Judge dated 9-1-1990 setting aside the ex parte decree passed against respondent No, 1 and the order of the Additional District Judge dated 28-10-1991 dismissing the petitioner's revision petition.
2. Facts giving rise to this petition, briefly stated, are that the petitioner filed a suit for possession against respondent No,1 on 26-1-1989. Summonses issued to respondent No, 1 were received back with the report of his refusal to accept the same. He was then sought to be served through proclamation in the `Weekly Kehkashan' and on his failure to appear in Court was proceeded against ex parte on 5-3-1989. The trial Court recorded ex parte evidence of the petitioner on 14-3- 1989 and on the same day passed ex parte decree against respondent No,
1. In execution of the decree, warrants of possession were issued on 17-4-1989 which were allegedly resisted by respondent No,1. On the Bailiffs report of resistance, the Court issued fresh warrants of possession with a direction to execute the same with the help of the police. The petitioner accordingly obtained possession of the suit premises on 20-4-1989.
3. On 22-4-1989, respondent No,1 moved an application under Order IX, Rule 13, C.P.C. For setting aside the ex parte decree dated 14-3-1989 alleging therein that he was never served with any summonses. "No, Process-server reached at site... ... ... No affixation of the summonses was effected" and the Process-server made an incorrect report. It was thus contended that there was no basis for effecting susbstituted service. It was also pointed out that the Weekly in which the citation was made had no circulation in the market. The respondent claimed that he had no knowledge whatsoever about the pendency of the suit and that he came to know of the ex parte decree only on 20-4-1989 when the Bailiff came on the spot and dispossessed him forcibly. Application was resisted by the petitioner on a number of grounds which gave rise to the following issues:--
(1) Whether the petition is barred by time? OPR
(2) Whether the petitioner should have filed a petition under section 5 of the Limitation Act? If so, what would be the effect of non-filing? OPP
(3) Whether the petitioner has validly executed deed for General Power of Attorney in favour of Bashir Ahmad? If so, its effect? OPR
(4) Whether there exists sufficient cause for the setting aside of ex parte judgment and decree?
OPA
(5) Relief.
4. Both the parties led evidence in support of their respective contentions. Respondent No,1 produced three witnesses including his Special Attorney Bashir Ahmad Butt who appearing as A.W.3 stated that respondent No,1 was residing in Karachi and he was looking after his business at Lahore. He further stated that no summons, registered letter or proclamation in the newspaper was received nor had any Process-server come on the spot. He also deposed that a stay order had been issued in favour of. Respondent No,1 by the Civil Court in a suit filed against the present petitioner and his brothers with respect to the property in dispute. Documents Exhs. A/1 to A/5 were brought on the record to prove the institution of a suit for permanent injunction by respondent No,1 against Haji Riaz etc., and issuance of the stay order regarding possession in favour of respondent No, 1 on 5-10-1988.
' Petitioner, on the other hand, examined as many as seven witnesses. Out of them, evidence of only three witnesses is really relevant to the issues. They are Ghulam Jilani Niazi, Managing Editor, "Weekly Kehkashan," R.W.3, Muhammad Iqbal, Process-server R.W.4 and Muhammad Riaz Special Attorney of the petitioner R.W.7. Muhammad Iqbal, Process-server, appearing as R.W.4 stated that he took the summoners to respondent No,1 who was identified by the petitioner. The respondent refused to accept the summonses. He prepared the report of refusal Exh.R.W.4/1 which was attested by the petitioner. R.W.3 stated that a proclamation was published in "Weekly Kehkashan" on 1-3- 1989. He further stated that a copy thereof was sent under postal certificate (Exh.RW3/2) to respondent No,1 at his address. The witness, however, could not vouch that it was received by respondent No,1. Petitioner's Special Attorney Muhammad Riaz appearing as R.W.7 deposed that he and his brother i,e, the petitioner accompanied the Process Server to the spot. His brother identified respondent No,1. He further stated that the Process Server showed the summonses to respondent No, 1 who after reading the same refused to accept it and his brother signed the report of the Process-server.
5. Learned trial Court after considering the evidence on record was not satisfied that respondent No, 1 was duly and properly served. It was observed by the learned trial Court that the Process- server did not personally know respondent No,1 who was identified by the petitioner/decree-holder who alone accompanied the Process-server and also testified his report. The trial Court noted that the report of the Process-server was not signed by any independent person. The trial Court also observed that the Process-server did not affix copy of the summons on the outer door or some other conspicuous part of the house of the respondent and as such the provisions of Order V, Rule 17, C.P.C. Not having been complied with "there was no occasion to order the substituted service of the defendant". Note was also taken of the statement of R.W.3 that he did not know whether respondent No, 1 had received the copy of the proclamation published in the "Weekly Kehkashan".
The learned trial Court thus held that "the summons were not duly served upon the defendant and as such, the period of limitation for setting aside the ex parte decree would start from the date of knowledge and not from the date of passing of the decree. Resultantly, the present application for setting aside the ex parte decree is not covered by the Article 164 of the Limitation Act. The petitioner came to know about the ex parte decree on 20-4-1989 and this fact is fully proved from the evidence of the petitioner. The present application under Order IX, Rule 13, C.P.C. Was moved on 22-44989 which is within the prescribed period of limitation and there was no need to file an application under section 5 of the Limitation Act alongwith the main application." Issues No, 1 and 2 were accordingly decided against the petitioner. The trial Court also decided issue No,3 against the petitioner holding that "Bashir Ahmad Butt had a validly executed general power of attorney in his favour from Muhammad Asif Butt and he was competent to move the present application". Issue No,4, too, was found against the petitioner and in favour of respondent No,1. While discussing issue No,4, the learned trial Court apart from considering other evidence on which it based its aforenoted findings on issues Nos. 1 and 2 also took note of the fact that respondent No,1 had earlier filed a suit for permanent injunction against the petitioner regarding the property in dispute in which a temporary injunction was issued in his favour on 5-10-1988 which injunction was operative not only on 14-3-1989 (the date on which the ex parte decree was passed) but also on 20-4-1989 (when the petitioner/decree-holder took possession of the property in dispute in execution of the ex parte decree). In the circumstances, it was observed by the trial Court that "it is not believable. That Muhammad Asif Butt, present petitioner, would not have come to the Court to safeguard his possession over the property in dispute". Yet another circumstance which the learned trial Court took into consideration when discussing issue No, 4 was that when ex parte proceedings were ordered on 5-3-1989, the case was adjourned to 27-4-1989 for recording evidence but subsequently on an application moved by the petitioner/decree-holder date of hearing was accelerated and evidence was recorded on 14-3-1989. For all these reasons, the learned trial Court held that there were sufficient grounds for setting aside the order of ex parte proceedings dated 5- 3-1989 and the ex parte judgment and decree dated 14-3-1989. Respondent's application for setting aside the ex parte decree was accordingly allowed by the trial Court vide judgment dated 9-1-1990.
6. Petitioner preferred an appeal but with no better result as the same was dismissed by the Additional District Judge vide his judgment dated 28-10-1991 upholding the findings of the trial Court on all the issues. The learned Judge observed that admittedly, no independent witness was present when the defendant/respondent had allegedly refused to accept the service of the process and since the respondent was residing in Karachi, "no useful purpose could be served by publication of a proclamation in a Weekly Magazine of Lahore. The possibility that the applicant had not seen the proclamation and of his remaining unaware of the same cannot be ruled out.
Thus there was sufficient reason for setting aside the ex parte proceedings/judgment and decree".
7. I have heard the learned counsel for the petitioner. As noted hereinabove, the two learned Courts have not accepted and for good reasons that respondent No,1 was personally served and he refused to accept the summons. It is not denied that the Process-server did not know respondent No,1 personally and it was the petitioner who identified him. No independent person was present at the time of the alleged refusal by respondent No, 1 to accept service of summons. It was also not denied that the Process-server did not affix the summons on the outer door or any other conspicuous part of the residence of respondent No,1. In the circumstances, it has been rightly held by the learned trial Court that there was no justification for resorting to susbtituted service of respondent No,
1. The learned Courts below appear to have accepted the stance of respondent No,1 that he was residing in Karachi. That being so, the publication of a proclamation in a Weekly magazine of Lahore was hardly of any use particularly, when the Managing Editor of the magazine appearing as R.W.3 could not specifically state that the proclamation was received by respondent No,1 and more so for the reason that the magazine has a limited circulation of which judicial notice can be taken. That being so, despite substituted service resorted to in the instant case, the learned Courts below have come to the conclusion that respondent No,1 was not duly served and that he came to know of the ex parte decree on 20-4-1989 when he was dispossessed from the premises in dispute in execution of the impugned decree. Thus the application filed by respondent No, 1 for setting aside the ex parte decree dated 22-4-1989 was held to be within time. It may pertinently be observed that the finding of want of due and proper service is by itself a sufficient ground for setting aside the ex parte proceedings/decree. No exception can, therefore, be taken to the findings recorded and the orders passed by the learned Courts below. Needless to observe that the findings of the Courts below that respondent No,1 was not duly served and there existed sufficient reasons for setting aside the ex parte decree are based on proper appreciation of the evidence/material on the record. Learned counsel for the petitioner was unable to point out any misreading or non-reading of any material evidence on the record. It may also be noted that the matter rested in the discretion of the Courts below which discretion is not shown to have been exercised arbitrarily or capriciously so as to warrant interference by this Court in writ jurisdiction. It is also an accepted principle that law favours adjudication of cause on merits. The impugned orders of the Courts below are in accord with this principle and for this reason also, no interference with the impugned orders is called for in discretionary and equitable jurisdiction in writ.
8. Upshot of the above discussion is that I find no merit in the writ petition which is dismissed in limine.
Petition dismissed. PLD 1993 Lahore 474 Before Ausaf Ali Khan, J Prof. Dr. MUHAMMAD BELAL SUKHERA---Petitioner versus ISLAMIA UNIVERSITY, BAHAWALPUR through Vice-Chancellor and 6 others-Respondents W.P. No,1391 of 1992/BWP, decided on 14th March, 1993.
(a) Islamia University of Bahawalpur Act (IV of 1975)--- ----Ss. 15(3) & 25---Ad hoc appointments made by Vice-Chancellor under emergency powers and constitution of electoral college comprising of such appointees---Validity---Provision of S.15(3), Islamia Univeristy of Bahawalpur Act, 1975 does not empower Vice-Chancellor to exercise any functions allocated to the Syndicate-- -Even otherwise, scope of provision of S.15(3) was being extended by Vice-Chancellor from its legitimate limits in order to acquire and usurp powers of Syndicate in the name of emergency which was colourable exercise of authority not vested in him---Ad hoc appointments of Professors etc. Made by Vice-Chancellor further constituted electoral college of the Syndicate---New appointees elected the Syndicate and from the Syndicate so elected, he got approved their appointments-Ad hoc appointments being not valid, constitution of electoral college by them had little legal efficacy and the superstructure based on such void act, thus, could not stand and had to fall with the void act itself. [p. 477] A
(b) Islamia University of Bahawalpur Act (IV of 1975)--- ----Ss. 15(3) & 25---Constitution of Pakistan (1973), Art. 199-Constitutional petition---Locus standi of petitioner---Petitioner had locus standi to maintain Constitutional petition for if appointments in question, had not been made, he would have been member of the electoral college and would have voted for election of syndicate---Such illegally constituted Syndicate had passed certain orders prejudicial to petitioner and some of his colleagues---Petitioner's term as Chairman of the Department was reduced and for that period in his place another person was appointed--- Petitioner, thus, could maintain that he had been dealt with in relation to his service matter to his prejudice---Petitioner was, therefore, an "aggrieved person" within the meaning of Art.199 of the Constitution. [p. 478] B Muntizma Committee, Al-Mustafa Colony (Regd.), Karachi and 3 others v.
Director, Katchi Abadis, Sindh and 5 others PLD 1992 Kar. 54; Noor Muhammad v. Member (Revenue), Board of Revenue, Punjab, Lahore and 5 others 1988 CLC 154 and University of the Punjab, Lahore v. Ch. Sardar All 1992 SCMR 1093 rel.
(c) Islamia University of Bahawalpur Act (IV of 1975)--- ----S. 47---Irregularities purportedly committed in the election of Syndicate--Validation--- Essentials---Provision of S.47, would come into play only where electoral college for election of Syndicate had been properly constituted and on basis thereof, election of Syndicate had taken place; and then if in the meeting of that Syndicate some unauthorised person had participated or a seat in the Syndicate had fallen vacant, then such irregularity would not have invalidated the decision of the Syndicate, if otherwise the quorum was complete---Where, however, the very constitution of a body or Authority, which under the law was to take decision, was illegal and void, the acts done by such body would not be deemed to have been validated by the provision of S.47.
[p. 478] C
(d) Islamic Jurisprudence--- ----Principles of Adl-o-Ahsaan---Vice-Chancellor occupying exalted position and being head of a great seat of learning, ought to have watched that acts done by him or his subordinates were in accordance with Islamic principles of Adl-o-Ahsaan---Action of Vice-Chancellor while conducting affairs of the Univeristy was not in consonance with law, rules, principles of justice, equity, good conscience and fairplay. [p. 479] D
(e) Islamia University of Bahawalpur Act (IV of 1975)--- ----Ss. 15(3) & 25---Constitution of Pakistan (1973), Art.199---Ad hoc appointments made by the Vice-Chancellor, constitution of electoral college/roll and as a consequence thereof, election of Syndicate on the said electoral college and in the result all acts done and decisions taken by the Syndicate including regularization of ad hoc appointees was without lawful authority and of no legal effect. [p. 479] E Ijaz Ahmad Ch. For Petitioner.
M.M. Bhatti for Respondents Nos.2 and 3.
Date of hearing: 1st March, 1993.
' The petitioner in this Constitutional petition is Professor and Dean Faculty of Science, Islamia University, Bahawalpur. The facts of the case, concisely stated, leading to this petition are that the Vice-Chancellor, Islamia University, Bahawalpur, respondent No,2 herein, ostensibly exercising delegated powers of the Chancellor's Committee under section 50 of the Islamia Univeristy Bahawalpur Act, 1975 (to be referred as Act) made ad hoc appointments of two Professors; six Associate Professors; three Assistant Professors and thirteen Lecturers. These ad hoc appointments were subsequently validated by the Vice-Chancellor by issuing Notification No,9585/Estt. I, dated the 12th of November, 1992 stating that the appointments shall be deemed to have been made under section 15 (3) of the Act. Here I may remark that the Vice-Chancellor was previously too pitted against some of the Professors of the University in litigation before the High Court wherein vires of the action of the Vice-Chancellor under section 50 of the Act were examined in Intra-Court Appeals No, 15, 16 and 17 of 1992 and vide judgment dated the 11th of November, 1992 the order of delegation of powers dated the 28th of February, 1991 under section 50 of the Act was declarded a dead order. This judgment has been challenged in the Supreme Court and the matter is sub judice.
Reverting to the facts of the case I find that election of 4 seats of the Syndicate by and from amongst the different categories of the University teachers was intended to be held under section 24(i)(ix) of the Act. The Returning Officer issued preliminary Electoral Rolls to each category of teachers and invited objections for inclusion of the names in and exclusion from the rolls. The petitioner alongwith two others filed the objections for exclusion of some of the names of the Professors, Assistant Professors and Lecturers, detailed in the petition, from the preliminary electoral college. The objection, however, was rejected by the Returning Officer, Registrar of the University, respondent No, 3 herein. The objectors including the petitioner aggrieved by the decision dated the 9th of October, 1992 filed revision under section 7 of the Act before the Revision Committee which was chaired by Dr. Khalid Javid Makhdoom whose entry in the Electoral College was objected to by the petitioner. The revision was expectedly rejected. The election for the seats of Syndicate took place on the 7th of November, 1992. Dr. Javaid Akhtar Cheema returned as elect and also Dr. Muhammad Shafique Khan and Mr. Makshoof Athar. The Vice-Chancellor in his wisdom thought that the Syndicate had been formed and, therefore, he held the meeting for the 21st of November, 1992 and subsequently on the 10th of January, 1993. Three days before, the petitioner had already filed the present petitioner but he had to file the amended petition in view of the decisions having been taken in pursuance of the said meeting. According to the petitioner several decisions violating the provisions of the Act and also jeopardising the rights of various teachers including the petitioner were made. The petitioner has sought it to be declared in this Constitutional petition that the electoral college notified by the notification No, 2075 dated the 26th of October, 1992 was constituted illegally and so was the election to the Syndicate and further that the decisions made in the meeting of the improperly constituted syndicate were also without lawful authority and of no legal effect. He also sought relief that the Vice-Chancellor be restrained from convening any further meeting of the Syndicate and respondents No, 4 to 7 be restrained from attending any such meeting of the Syndicate.
2. Parawise comments on behalf of respondents No,2 and 3 were submitted wherein all the impugned actions were defended, questioning the petitioner's locus standi to file the writ petition.
3. The Vice-Chancellor has justified the ad hoc appointments which is the power of Syndicate under section 25 of the Act. And he has attempted to justify the appointments made by him under emergency powers under section 15(3) of the Act.
4. The High Court in Intra-Court Appeal had held this provision of law does not empower him to exercise any function allocated to the Syndicate. Even otherwise scope of provisions of section 15(3) is being extended by the Vice-Chancellor from its legitimate limits and scope and in order to acquire and usurp powers of Syndicate in the name of emergency which is colourable exercise of authority not vested in him. The ad hoc appointments of two Professors; six Associate Professors; three Assistant Professors and thirteen Lecturers, as detailed in Paragraph No,3 of the Writ Petition, made by the Vice-Chancellor further constituted electoral college of the Syndicate. The new appointees elected the Syndicate and from that Syndicate which was elected by these appointees, he got approved their appointments. Since ad hoc appointments were not valid the constitution of electoral college by them had little legal efficacy and the superstructure based on this void act, therefore, cannot stand and has to fall with the void act itself.
5. The petitioner has locus standi to maintain the petition because not for these appointments he would have been member of the electoral college and would have voted for election of Syndicate.
Further illegally constituted syndicate had passed certain orders prejudical to the interest of some of the teachers, including the petitioner. For instance the petitioner was appointed Chairman of the Department of Physics for the period of three years i,e, from 24-10-1991 to 23-10-1994 vide Notification No,1263-99/Est-1 dated the 13th of February, 1992 but the period was reduced to two years and for that period in his place Dr. Barkat Ali Shafique, was appointed. The petitioner, therefore could maintain that he had been dealt with in relation to his service matter as abovementioned to his prejudice. The petitioner, therefore, was an "aggrieved party" within the meaning of Article 199 of the Constitution. Karachi High Court had laid down in Muntizma Committee, Al-Mustafa Colony (Regd.) Karachi and 3 others v. Director, Katchi Abadis, Sindh and 5 others (PLD 1992 Karachi 54) that aggrieved person would not necessarily mean a person having a strict legal right, even a person who was deprived of a benefit, privilege etc. By an illegal act or omission, could be considered as an aggrieved person. Moreover, where a case involved question of true interpretation and correct application of statutory rules, Constitutional jurisdiction would be available, as was ruled in Noor Muhammad v. Member (Revenue), Board of Revenue, Punjab, Lahore and 5 others 1988 CLC 154.
6. The learned counsel for the respondents. Has contended that ail the rules, regulations and statutes of the University are not statutory rules and the petition was not competent as ruled by the Supreme Court in its latest decision University of the Punjab, Lahore v. Ch. Sardar Ali (1992 SCMR 1093). This rule cannot be applied to the facts of this case because here the petitioner has challenged very constitution of the electoral college/roll, election of the Senate by the said eletoral college and certain orders passed adverse to his interest by the Senate.
7. The other objection of the learned counsel for the respondents is that if any irrgularity was committed in the elections etc., the same stood cured under section 47 of the Act. This provision of law cannot be interpreted to hold that if the very constitution of a body or authority which under law was to take decisions was illegal and void, the acts done by it would be deemed to have been validated by this provision of law. Had electoral college been properly constituted and on the basis thereof election of Syndicate had taken place, and then if in the meeting of that Syndicate some unauthorised person had participated or a seat in the Syndicate had fallen vacant, then such irrgularity would not have invalidated the decision of the Syndicate, if otherwise the quorum was complete.
8. Before parting with the judgment I must express my dismay over the conduct of the Vice- Chancellor which was never equalled by the exhalted position he occupies. Being head of a great seat of learning, he ought to have watched that the acts done by him or his subordinates were in accordance with Islamic principles of Adl-o-Ahsaan. In the instant case it was nowhere discernible that the Vice-Chancellor was keen to conduct the affairs of the University in consonance with the law, rules, principles of justice, equity, good conscience and fairplay.
9. The upshot of the above discussion is that the ad hoc appointments, the constitution of the electoral college/roll and as a consequence thereof the election of Syndicate on the said electoral college and in the result all the acts done and decisions taken by the Syndicate including the regularization of ad hoc appointees was without lawful autority and of no legal effect and is hereby quashed. Ire view of glaring disregard of rules, fairplay, I hereby burden the Vice-Chancellar with costs of the petition.