' Facts necessary for the disposal of this Constitutional petition, briefly stated, are that the petitioner's suit for pre-emption was decreed vide judgment dated 23-7-1975 whereby the petitioner (plaintiff) was directed "to pay the amount of Rs, 45,000 less already deposited within 30 days from today, failing which the suit shall deem to have been dismissed with costs". Period stipulated in the judgment for depositing the aforesaid amount expired on 22-8-1975. It is an admitted position that the petitioner deposited the pre-emption amount on 23-8-1975 which was clearly beyond the prescribed period. Vendeesrespondents who were the defendants in the suit made an application before the trial Court praying therein that the petitioner's suit be dismissed as he failed to deposit the requisite amount within 30 days period fixed in the judgment. Learned trial Court accepted the respondents' application and held that the petitioner having failed to deposit the pre-emption amount within the stipulated time, "the suit of the plaintiff stands dismissed". This was vide order dated 19-11-1975 (Annex. C). Petitioner challenged this order in revision which was dismissed by the learned Addl. District Judge, Lyallpur vide his judgment dated 16-7-1976 (Annex.
D). These orders have been brought under challenge in this Constitutional petition.
2. I have heard the learned counsel for the petitioner, It is not denied that the petitioner failed to deposit the pre-emption amount within the period fixed by the trial Court in its judgment. That being so, by virtue of express direction in the judgment rendered in the pre-emption suit that in the event of the failure of the plaintiff to deposit the specified amount within the prescribed period, the suit shall be deemed to have been dismissed, petitioner's suit stood dismissed as a necessary consequence of his default. There was no power either in the trial Court or the learned Addl. District Judge to condone the default or to extend the time for deposit. Refer PLD 1954 Lahore 87, facts whereof were almost similar to those in the instant case. In that case, the preemptor/decree- holder was directed to deposit the pre-emption money by 16th June, 1952 failing which the suit would stand dismissed. The pre-emptor deposited the amount on 17th June i,e, a day after the date fixed and moved an application under section 148/151, P.P.C. For extension of time and condonation of delay. Trial Court dismissed the application holding that it had no jurisdiction to interfere with the time fixed in the decree for the deposit of the money. This view was upheld by this Court and relying upon a Full Bench decision in the case "Himmun v. Fauja" (AIR 1921 Lahore 6), it was observed "a decree can be altered in appeal, review or revision but neither section 148 nor section 151, C.P.C.
Can be utilized for this purpose'. Similar view was taken from the right side, who was injured and fell down. The father of the complainant wanted to go near on which Phuloo Khan, co-accused inflicted Soti blow on his head and Muhammad Sharif (acquitted co-accused) gave Soti blows on his back and legs. The P.Ws. Had witnessed the occurrence and rescued the injured from the accused persons. P.W.9 Mst. Bhirawan had told the witnesses that Mithal deceased wanted to bring her to the house of Mst. Halima Mai for condolence, but her husband (appellant) had stopped them. P.W.9 insisted, on which the appellant started giving her beating and when the deceased Mithal forwarded to save her, the appellant from inside his but brought hatchet with which he had injured her and the deceased. The complainant further setated that as the appellant was not enjoying good reputation, due to that the people of the Bratheri did not allow him to come to their houses and that is why the appellant did not permit his wife P.W.9 to go for condolence. Due to that grievance the appellant had injured Mithal deceased and P.W.9 with the intention of causing their murder. Muhammad Sharif (acquitted co-accused) and his father Phuloo Khan had also injured the father of the complainant Mehar Khan (P.W.10). The complainant PW.8 had taken along his deceased brother in injured condition while the was unconscious on a cot alongwith his sister P.W.9 Mst. Bhirawan and P.W.10 Mehar Khan in injured condition in the company of Molazim Hussain, Muhammad Hussain, Umaid Khan, Siddique and Sahib Khan P.Ws. (given up) and made his statement Exh. PH/1.
4. P.W. 12 Muhammad . Zafarullah, Inspector/S.H.O. Was present on patrol duty at bus stand Sheikhwan on 16-2-1989 at about 5-00 p,m. When P.W. 8 complainant Manzoor Ahmad met him and made his statement Exh. PH/1. He sent the same to the police station for registration of the formal F.1.R., where P.W. 7 Safdar Hussain H.C. Received it and on its basis correctly recorded the F.I.R. Exh. PH. P.W. 12 prepared injury statement of Mithal, Mehar Khan, Mst. Bhirawan Exhs. PJ/1, PL/1 and PK/2 respectively and sent them for medical examination. Mithal deceased was injured and was unconscious at that time. P.W.12 proceeded to the spot, inspected the locale, secured blood- stained earth from the pl4ce where Mithal deceased had fallan in injured condition and prepared sealed parcel vide memo. Exh.PC. P.W.12 recorded the statement of P.Ws.. And then proceeded to the Rural Health Centre, where he recorded the statements of Mehar Khan (P.W. 10) and Mst.
Bhirawan (P.W.9). On 18-2-1989 Mithal injured succumbed to his injuries and P.W.12 prepared his injury statement Exh. PA./1 and inquest report Exh. PA/2 and despatched the dead body for autopsy.
On 28-2-1989 P.W.12 arrested the appellant Faqir Bakhsh and co-accused Muhammad Sharif and Phuloo Khan from their houses. On 4-3-1989 appellant Faqir Bakhsh led to the recovery of blood- stained hatchet P.3 which was made into a sealed parcel and secured vide memo. Exh. PE. On the same day Muhammad Sharif (acquitted co-accuded) while in custody led to the recovery of Soti P.4 which was secured vide memo. Exh. PF. On that very day Phuloo Khan, co-accused led to the recovery of Soti P. 5 secured by P.W.12 vide memo. Exh.PG. P.W.12 deposited the sealed parcels with the Duty Officer on their respective dates for their safe custody and after completion of the investigation submitted the challan.
5. The prosecution examined 12 P.Ws. In all to substantiate its case. On 16-2-1989 at about 7-20 p.m.
P.W.11 Dr. Muhammad Ramzan Arif medically examined Mithal in injured condition and found the following injury on his person:-- "An incised wound 6-1/4" x 2-1/8" x bone cut and brain matter coming outside from the wound in the left fronto parietal region of the head."
' The patient was unconscious. B.P. 90/40 MMHG. Pulse was 94 p.m. Breathing was difficult and froth was coming out from the mouth. Pupils were slightly dilated. The injury was grievous and dangerous to life caused by a sharp-edged weapon within six hours of the examination. Exh. PJ. Is the carbon copy of medico-legal report.
' On the same day at about 7-35 p.m. P.W.11 Dr. Muhammad Ramzan Arif medically examined P.W.9 Mst. Bhirawan Bibi and observed an incised wound 2-1/4 x 1/8" x scalp deep on the frontal region of the head on leg side from the mid line". The injury was caused by sharp-edged weapon within six hours of the examination.
' On the same day, at about 7-40 p.m. P.W.11 medically examined P.W. 10 Mehar Khan and observed a contusion 1" x 1/2" and abrasion 1/4" x 1/4" over the wound on the right frontal region of his head caused by blunt weapon within six hours of the examination. The injury was simple in nature.
6. On 18-2-1989 Dr. Zafar Iqbal (P.W.1) conducted post-mortem examination upon the dead body of Mithal Khan and found the following injury:-- ' An incised wound 6-1/4" x 2" x bone deep and brain matter coming out from the wound from Jell parietal region of the head.
' On dissection of the head, all the layers of the brain were found to be congested. There was extra vasation of the blood in the brain due to the sharp injury. All the layers and the brain matter had been cut down below the wound. In the opinion of the doctor, the death was caused due to internal bleeding, hypovolumic shock. The head injury was sufficient to cause death in the ordinary course of nature and was ante-mortem. The autopsy was conducted after about 12-18-hours of the death.
Exh. PA is the carbon copy of the postmortem examination report.
7. P.W.2 Siraj Ahmad, F.C. On 8-3-1989 delivered two sealed parcels containing blood-stained earth and blood-stained hatchet to the office of Chemical Examiner intact which he had received from P.W.3 Muhammad Hussain H.C. P.W.3 Muhammad Hussain H.C. On 18-24989 had received one sealed parcel containing blood-stained' earth and a parcel containing bloodstained hatchet on 4- 34989 which he handed over to P.W.2 on 8-3-1989 for onward delivery of the same in the respective offices. P.W.4 Muhammad Aslam Shahid, Revenue Patwari had prepared site plans Exhs.PB and PB/1 on the direction of the police and upon pointation of P.Ws. In the scale of 40 Karams to an inch.
P.W.5 Khadim Hussain had witnessed taking into possession of blood-stained earth vide memo.
Exh. PC attested by him and the last worn clothes of the deceased blood-stained Chadar P.2 and shirt P.1 which a constable produced before P.W.12/I.O. After post-mortem examination of the deceased, secured vide memo Exh.PD also attested by P.W.5. He also witnessed the recovery of blood-stained hatchet P.3 from the residential Sahal (hut) of the appellant at his instance which was secured by P.W.12 vide memo. Exh.PE. Attested by him and made into a sealed parcel.
Muhammad Sharif (acquitted co-accused) had also led to the recovery of stick P.4 from his residential hut, in the presence of P.W.5 secured by P.W.12 vide memo. Exh. P.F. Attested by him. On the same day, Phuloo Khan, co-accused while in custody led to the recovery of stick P.W.5 from his residential hut, which was secured by P.W.12 vide memo. Exh.PG attested by him. P.W.6 Mukhtar Ahmad, IC escorted the dead body of the deceased to the mortuary and after post mortem examination the doctor handed him over the blood-stained last worn-clothes of the deceased P.1 and P.2, which he produced before P.W.12, who secured the same vide memo. Exh. PD. P.W.7 Safdar Hussain H.C. On 16-2-1989 at about 5-30 p.m. While working as Duty Officer received complaint Exh.
PH/1 and on its basis correctly recorded F.I.R Exh. PH. P.W.8 Manzoor Ahmad complainant of the present case narrated the facts mentioned by him in the complaint Exh. PH./1 and further stated that on the direction of the Medical Officer of Mianwali Qureshian Rural Health Dispensary, due to precarious condition of Mithal deceased he took him to the D.H.Q. Hospital, Rahimyar Khan, where he expired on the third day. P.W.9 Mst. Bhirawan stated that she was married to the appellant about 5/6 years back and had been putting up with him in his. House and her sister Mst. Haleeman was married to P.W. Umaid Ali (given up), who is resident of Mauza Fatehpur Tiwana and in exchange of P.W.'s marriage Mst. Anwar Mai, a sisiter of Faqir Bakhsh appellant was married to her brother Mithal deceased who was also putting up with his father-in-law i,e, accused Phuloo Khan as Khanadamad. The mother-in-law of Mst. Haleema Bibi namely Salim Mai died and whose house was situated in their village at a distance of about one acre from the residence of P.W.9's in-laws.
On the day of occurrence, it was a condolence meeting of said Salimo Mai and there was a Khairat in that connection. The persons from P.W.9's paternal family namely Mehar Khan, her father (P.W.10), her brother Manzoor Ahmad (P.W.8), her uncle Sahib Khan, Molazim Hussain, Muhammad Hussain and Muhammad Siddique, P.Ws. (given up) had also come there to participate in the condolence meeting. P.W.9 wanted to go to the said condolence meeting alongwith her brother Mithal deceased to the house of their sister Mst. Halima Mai, but the appellant did not allow then; to go. When P.W. 9 insisted, the appellant started belabouring her with fist blows. Her deceased brother Mithal came to rescue her. The appellant brought out a hatchet from his residential Sahal
(hut) and inflicted a blow with it on her head. On the intervention of Mithal the appellant Faqir Bakhsh landed a hatchet blow upon his head, who fell injured on the ground and became unconscious. P.W.9 also fell on the ground after receiving injury. Upon their alarm, their father P.W.
10 Mehar Khan meanwhile arrived, who witnessed the occurrence. He was followed by Sahib Khan, Umaid Khan, Manzoor Khan, Muhammad Hussain and Siddique P.Ws (given up). P.W.10 Mehar Khan was the first who arrived at the spot, tried to rescue them, whereupon Phuloo Khan gave stick blows on different parts of his body. Muhammad Sharif (acquitted co-accused) also reached the spot and landed injuries with his stick on P.W.10. Mithal injured was referred for medical treatment to the Hospital at Rahimyar Khan, where he succumbed to his injuries on the third day of the occurrence.
P.W.9 was taken to the Rural Health Centre, Mianwali Qureshian, where she was medically examined and was treated for her injuries and remained admitted, and after receipt of information of the death of her deceased brother Mithal she left the Hospital despite her injuries.
8. P.W. 10 Mehar Khan, father of the deceased corroborated the statements of P.Ws. 8 and 9 in minute details and also stated that the appellant after brining out a hatchet gave a hatchet injury on the head of Mithal deceased, who was putting up in the house of Phuloo Khan, co-accused as his Khana Damad. P.W.10's daughter Mst. Bhirawan (P.W.9) went ahead to rescue her brother, whereupon the appellant also gave a hatchet blow on her head. Mithal deceased had fallen on the ground unconscious. Muhammad Sharif (acquitted co-accused) also gave blows on the back and legs of P.W.10. Mithal was transported to the Hospital at Rahimyar Khan, where he expired on the third day of the occurrence. P.W. 10 was also medically examined along with P.W.9.
9. P.W.12 Muhammad Zafarullah Khan, Inspector/S.H.O recorded complaint Exh. PH/1 on the statement of P.W. 8 on 16-2-1989 and after completing the formalities challaned the accused persons.
10. The appellant Faqir Bakhsh when examined under section 342, Cr.P.C. Denied the prosecution evidence against him and recovery of hatchet P.3 at his instance, and also pleaded alibi. In answer to a question "why this case against you and why the P.Ws. Have deposed against you?" he replied as under:-- "I have been falsely implicated in this case. Deceased Mithal had illicit connection with his uncle's daughter Mst. Sarwar Mai. Mithal was however, engaged to said Mst. Sarwar Mai. But since he developed illicit connections with the lady prior to the marriage his relatives and relatives of Mst.
Sarwar Mai nursed grudge against him and started quarrelling with Mithal who came to me with his sister P.W. Mst. Bhirawan and thus he married Mst.Bhirawan with me and in exchange thereof my sister was married to Mithal. Mithal accordingly started living with me against the wishes of his relatives and did marry his sister Mst. Bhirawan with me against the will of her parents, and other relatives. Accordingly, the relatives of the deceased did not participate in the marriage. Mithal and his sister had been amicably living with us for 7/8 years. On the night preceding the day of Khairat held in connection with the death of Mst. Saleemo aforesaid the mother, sister and brother of Mithal stayed in our house and had been persuading Mithal to participate in the Khairat and to accompany them back to their home, but Mithal flatly refused to oblige them. After the sunrise I went to Zahirpir for the purpose aforementioned. I returned from Zahirpir at evening time and learnt that Mithal and P.W. Mst. Bhirawan were taken along by their aforesaid relatives. On the third day Allah Bachaya Gopang, who is an elder and Sardar of our Bradari had sent for me and my father/co-accused Phullan to settle the dispute about Mithal and for restoration of my wife to my house. Our said Sardar made us to sit there. He had perhaps already arranged for the police who arrived there and Allah Bachaya Gopang produced me and my father before the police. Since Mithal and Mst. Bhirawan were putting up in our house against the wishes of their parents and uncle, who had taken them back, I cannot tell who murdered Mithal but we have been falsely involved."
' He further stated that he was innocent. He had not made statement on oath as envisaged under section 340(2), Cr.P.C. , but produced three D.Ws. In defence. D.W.1 Abdul Ghafoor stated that he was present at his tubewell alongwith Phuloo Khan and Muhammad Sharif on the day of occurrence. They heard alarm from the place of occurrence, rushed there and witnessed Mithal in injured condition. Faqir Bakhsh appellant was not present there. Phuloo and Sharif accused were with him from 1-00 p.m. To 3-00. p.m. D.W.2 Muhammad Sharif stated that the appellant used to work as Mistri at his tubewell and on the day of occurrence, D.W.2 sent him to Zahirpir to purchase spare parts and he returned at 6-00 p.m. D.W.3 Sohanra stated that on the day of occurrence, he went to Zahirpir and the appellant also travelled with him in the same bus for Zahirpir and they returned after purchasing some spare parts at 6-00 p.m. On return P.W.3 came to know about the occurrence-
11. The prosecution case rests upon motive, eye-witness account, medical evidence and the recoveries.
12. The motive behind the occurrence has been stated by P.W.8 complainant Manzoor Ahmad and P.W.9 Mst. Bhirawan. P.W.8 in his statement Exh. PH/1 on the basis of which formal F.I.R.Exh. PH was recorded had narrated that Mst. Saleemo, mother-in-law of Mst. Haleema Mai sister of P.W. 8 and P.W.9 died and on the day of occurrence there was a Khatam ceremony and the P.Ws. Had come to attend the same. He further stated that Mst. Bhirawan (P.W.9) told that Mithal deceased wanted to take her (P.W.9) to the house of Mst. Haleema Mai for condolence, but the appellant had stopped them, and due to her insistence, the appellant started beating her, and as the appellant did not command good reputation, the persons of his Bratheri did not allow him to visit their homes and he also did not permit his wife. P.W.9 to go for condolence. P.W.8 and P.W.9 corroborated each other on the point of motive.
13. The ocular testimony has been furnished on record by the statements of P.Ws. 8, 9 and 10. P.W.8 is brother of the deceased, P.W. 9 is his sister, and P.W.10 is the father of the deceased, whereas they are wife's brothers and father-in-law of the appellant respectively. P.W.8 and P.W.10 were present in the house of late Mst. Salcemo at a distance of one acre when they heard shrieks of P.W.9 and reached the place of occurrence one after the other, i,e, P.W. 10 reached earlier and then P.W.B.
P.W.8 and P.W.10 witnessed the receipt of one injury each by the deceased and P.W.9 Mst. Bhirawan on their heads at the hands of the appellant. P.Ws. 8, 9 and 10 are closely related inter se and also with the appellant and they made corroborative and consistent statements. Implicit reliance can be placed on their testimony.
13. Medical testimony has been furnished on record by the statements of P.W.11, Dr. Muhammad Ramzan Arif who had medically examined the deceased Mithal in injured condition, P.W.9, Mst.
Bhirawan and P.W.10 Mehar Khan. P.W.1 Dr. Zafar Iqbal conducted autopsy on the dead body of the deceased. The medical evidence furnished by the statements of P.W.11 and P.W.1 is in complete consonance with the oral testimony of P.W.8, P.W.9 and P.W.10.
14. Recovery aspect of the case has been placed on record by the statement of P.W.5 Khadim, Hussain, in whose presence appellant Faqir Bakhsh led to the recovery of blood-stained hatchet P.3 from his residential hut, which was secured by P.W.12 vide memo. Exh. PE attested by him and P.W.
Umaid Ali (given up). P.W.12 had prepared sealed parcel of P.3. P.W. 5 also witnessed the recovery of blood-stained earth from the spot vide memo. Exh. PC attested by him and P.W. Umaid Ali (given up) and secured by P.W.12 in a sealed parcel. The reports of the Chemical Examiner Exhs. PN, PO and that of the Serologist Exh. PN/1 and P0/1 in respect of blood-stained earth and blood-stained hatchet P.3 are positive. The recovery aspect of the case has been proved on record.
15. The ocular testimony furnished by the statements of P.Ws.8 and 10 is in conformity with the medical evidence brought on record by P.W.11 and P.W.1, and they are in consonance with each other. The motive behind the occurrence coupled with the recovery aspect of the case has been proved on record and excepting minor discrepancies here and there, nothing has been brought on record by the defence that the P.Ws. Had made dishonest improvements in their statements or had animus against the appellant. The plea of alibi raised by the appellant has not been established on record.
16. The appellant Faqir Bakhsh is closely related to the deceased Mithal and eye-witnesses i,e, the deceased was the sister's husband of the appellant, P.W.8 is wife's brother of the appellant, P.W.9 is wife of the appellant, whereas P.W. 10 is father-in-law of the appellant. The deceased was brother of P.W.8 and P.W.9 and son of P.W.10. The parties are closely related inter se. P.W.9 during cross- examination has stated that when they arrived at the spot, he witnessed the appellant Faqir Bakhsh delivering slaps to P.W.9 and he was empty-handed at that time. The deceased Mithal intervened to the rescue of P.W.9 from the beating being given to her by the appellant, when the latter went inside his Sahal (hut) and returned with a hatchet. The appellant was abusing Mst.
Bhirawan (P.W.9) and appeared fairly angry and was in high temper. There was no serious dispute between P.W.9 and the appellant, but there had been some quarrel between them on account of restrictions being imposed by the appellant on P.W.9. P.W.9 during cross--examination has stated that there was discussion/arguments between the appellant and herself for about half an hour regarding her desire to visit the house of late Mst. Saleemo and except for the question of visit, there was no other dispute on the day of occurrence between the appellant and herself. She further stated that it was correct that the discussion was in loud tone between her and the appellant and within the view of the deceased, the appellant had slapped her. The Sahal (abode) from where the appellant had brought out hatchet was at a distance of 5/6 Karams or so from the said place the appellant had slapped her. P.W.10 during cross-examination stated that it was correct that the deceased had no enmity or dispute with the appellant and vice versa. It was correct that Mithal deceased was happily residing in the house of the appellant as Khanadamad before the actual occurrence. P.W. 10 and other P.Ws. Were attracted to the house of the appellant and accused persons on hearing the alarm of P.W.9. P.W.8 and P.W.10 were present in the house of late Mst. Saleemo at that time. P.W.10 further admitted that P.W.9 was weeping when the appellant was beating her. It is pertinent to mention here that there was no previous enmity between the parties and due to the insistence of P.W.9 to join the Khatam ceremony at the house of late Mst.
Saleemo, the mother-in-law of P.W.9's sister, a dispute had arisen between the appellant and P.W.9.
The appellant slapped her in presence of the deceased and on hearing shrieks P.W.8 and P.W.10 were attracted to the spot. Mithal deceased intervened, on which the appellant flared up and in the heat of passion went to his Sahal (hut) and brought out hatchet and inflicted one injury each on the deceased and P.W.9. The appellant had not repeated hatchet blows either on the deceased or on P.W.9. There was no previous enmity between the parties and there was also no premeditation.
It was a sudden flare up in which the appellant could not control his passions.
17. Pursuant to the above discussion, while maintaining the conviction and sentence of the appellant Faqir Bakhsh under section 302, P.P.C. We alter it to imprisonment for life. The sentence under section 307, P.P.C. For 5 years' R.I. Is maintained. The fine imposed under section 302, P.P.C.
Shall also be paid as compensation to the legal heirs of the deceased alongwith Rs,5,000 as compensation already awarded by the trial Court. The sentences under section 302, P.P.C. And section 307, P.P.C. Shall run concurrently with the benefit of section 382-B, Cr.P.C. The sentence of death is Not confirmed.
Sentence reduced. PLD 1993 Lahore 388 Present Mian Allah Nawaz and Mian Abdul Khaliq, JJ DOST MUHAMMAD alias DOSSO--Appellant versus THE STATE--Respondent Criminal Appeal (SCT) No,45 of 1991/BWP, decided on 5th April, 1993.
West Pakistan Arms Ordinance (XX of 1965)-- ----S. 13---Appreciation of evidence---Trial Court after remand of the case by High Court proceeded with the trial without framing fresh formal charge and convicted and sentenced the accused even without recording his statement under S.342, Cr.P.C.---Statement of accused made on oath under S.340(2), Cr.P.C. Even did not bear his signature or thumb-impression nor signature of the Trial Judge---Failure of Trial Court to record statement of accused under S.342, Cr.P.C. To enable him to explain circumstances appearing in evidence against him had resulted in injustice causing prejudice to him---Trial conducted by Trial Court seemed to be a mockery of law in circumstances---Conviction and sentence awarded to accused were consequently set aside and the case was again remanded to the Trial Court for trial in accordance with law. [p. 389] A & B Malik Manzoor Ahmad Misson for Appellant. Ch. Abdul Nabi for the State.
Date of hearing: 5th April, 1993.
' MIAN ABDUL KLALIQ, J.---This criminal appeal has been filed against the judgment dated 9-10-1991 passed by the learned Special Judge (Special Court Suppression of Terrorists. Activities), Bahawalpur Division, Bahawalpur whereby the appellant was convicted and sentenced under section 13 of the Arms Ordinance XX of 1965 to undergo seven years' R.I. And a fine of Rs,5,000 in default whereof to further undergo R.I. For two years.
2. Briefly, the prosecution case is that P.W.7 Muhammad Afzal Gill, A.S.I. On 11-2-1991 at the spot drafted complaint Exh.PA to the effect that he alongwith Abdur Razzaq P.W.3 and Muhammad Hanif P.W.6 were present and the appellant in custody during investigation led to police party to the residential room of his house and from quilts lying on the cot, took out Klashnikov P.1 alongwith magazine Exh.P.2 containing 20 bullets which were secured by P.W.7 vide memo. Exh.PC attested by Muhammad Hanif P.W.6 and Abdur Razzaq P.W.3. As the appellant could not produce any licence, P.W.7 sent Exh.PA to the police station on 4-2-1991 where on its basis, formal F.I.R. Exh.PA/1 was drafted by P.W.1 Shafqaat Ali on the same day.
3. The appellant was challaned and sent up for trial. A charge under section 13/20/65 of Arms Ordinance was framed against him to which he denied and claimed trial but without recording the prosecution evidence, the appellant was convicted and sentenced by the learned trial Judge on 6- 5-1991 as he could not pay the costs of Rs,1,000 with which he was burdened as P.Ws. Could not be examined due to the non-ability of the learned counsel for the appellant to cross-examine the P.Ws. Because he was not prepared with the case and vide judgment (CrAS&T) 30/91/BWP) dated 8-7-1991 of a Division Bench of this Court, the case was remanded while accepting the appeal and the trial Court was directed to proceed with the trial in accordance with law.
4. The learned trial Court without framing a fresh charge proceeded with the trial and recorded the statements of seven P.Ws. As well as the statement of the appellant under section 340(2), Cr.P.C.
On oath as (D.W.2).
5. While hearing the learned counsel for the parties, it came to our notice that after earlier order of remand passed by a Division Bench of this Court (Appellate Court), dated 8-7-1991, no fresh formal charge was framed against the appellant and the learned trial Judge had proceeded with the trial and after recording the statements of seven P.Ws. And two D.Ws. Had convicted and sentenced the appellant. Even the statement of the appellant under section 342, Cr.P.C. Was not recorded, although it has been mentioned in the daily order sheet that the same was recorded. Learned counsel for the appellant had stated at the bar that the learned trial Judge had obtained thumb- impression of the appellant on a blank paper for doing the needful. Moreover, the statement made by the appellant on oath under section 340(2), Cr.P.C. Does not bear his signature or thumb- impression and as well as signature of the learned trial Judge. It was the duty of the learned trial Judge to record the statement of the appellant under section 342, Cr.P.C. To enable him to explain circumstances appearing in evidence against him and its failure, resulted in injustice. The appellant was prejudiced. The trial conducted by the learned lower Court seems to be a mockery of law.
6. Pursuant to the above discussion, we are left with no option except to allow the appeal, set aside the impugned judgment and remand the case to the learned trial Court for trial, in accordance with law.
Case remanded.
PLD 1993 Lahore 390 Before Ch. Fazal Karim, J BAHADUR and others--Petitioners versus UMAR HAYAT and others--Respondents Civil Revision No,1873-D of 1983, heard on 26th January, 1993.
(a) West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)- ----Ss. 10, 11 & 12---Right to apply for restitution is Olen to the mortgagor of any subsisting usufructuary mortgage not less than 20 years old or of any usufructuary mortgage the period whereof has expired---Provision of S.11 being mandatory, Collector must dismiss the petition if he is not satisfied that the petition is not in respect of a subsisting "usufructuary mortgage" not less than 20 years old or a usufructuary mortgage the period whereof has expired. [p. 397] A
(b) Jurisdiction-- --Civil Court's jurisdiction---"General" and "limited" jurisdiction--Jurisdiction of "superior" and "inferior" Courts---Distinction.
In approaching the question of the Civil Court's jurisdiction, one must keep in mind the important distinction between general and limited jurisdiction or between the jurisdiction of superior and inferior Courts. This is a distinction between the jurisdiction of the Courts of law which exercise the judicial power of the State and that of the special Tribunals and is described by the expressions "superior Courts" and "inferior Courts or tribunals." There can be no doubt that the Civil Courts are,Courts of general jurisdiction. The phrase "inferior tribunals" is not used in any offensive sense; it is a categorising and not a derogatory description. The phrase "inferior tribunal" merely means that the tribunal has a limited jurisdiction, as defined by the statute which sets up the tribunal. [p. 398] B And as the Civil Court is deemed to have general jurisdiction, the law presumes that that Court has acted within jurisdiction. The presumption is denied to inferior Courts. Nothing shall be intended to be out of the jurisdiction of a superior Court but that which specially appears to be so; and on the contrary, nothing shall be intended to be within the jurisdiction of an inferior Court but that which is so expressly alleged. [p. 399] C The Courts have a general jurisdiction over the administration of justice and when the legislature establishes a special tribunal the jurisdiction committed to such special tribunal is in fact carved out of the general jurisdiction of the Courts. It is therefore for the Courts to decide the true construction of the statute, which defines the area of a tribunal's jurisdiction, to see'that that tribunal keeps itself within the limits of its special jurisdiction, for if it does not, then it trespasses into the general jurisdiction of the Courts. Therefore, if there is a dispute on the point whether a Court has or has not jurisdiction over a certain subject-matter, it can certainly hear that dispute even if the result be that it, has to hold, that it has no jurisdiction. In this sense, jurisdiction of Courts is never barred, for they are judges of their own jurisdiction and it is for them to decide whether in a given case their jurisdiction has been taken away. For, on principe it is for the Civil Court as a Court of general jurisdiction to determine in the last resort the limits of the powers of a Court of special jurisdiction. [p. 400] G The exclusion of the Civil Courts is not to be readily inferred but that such exclusion must either be explicitly expressed or clearly implied. Even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. [p. 401] H Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; Anisminic's case (1969) 2 AC 147, p.233; Rex v. Chancellor (1948) 1 KB 195 at pp.205-206; Sultan All v.
Noor Husain PLD 1949 Lah. 301; State v. Zia-ur-Rehman PLD 1973 SC 49 at p.77; Hirday Nath's case AIR (sic) Cal. 34 and Secretary of State v. Mask & Co. AIR 1940 FC 105 ref.
(c) Judicial review-- ----Power which the Civil Courts exercise when declaring an act of an Authority or Tribunal to be without jurisdiction and of no legal effect is the power of judicial review. [p. 399] D Muhammad Tufail v. Abdul Ghafoor PLD 1958 SC (Pak.) 201 ref.
(d) Judicial review-- ----Mistakes of law---Judicial review is available as a remedy for mistakes of law made by inferior Courts and Tribunals only---Mistakes of law made by Judges of the Civil Courts as Courts of general jurisdiction and Judges of the High Court can be corrected only by means of an appeal to Appellate Court. [p. 399] E Recal Communication Ltd.'s case (1981) AC 374 at p.384 ref.
(e) Civil Procedure Code (V of 1908)-----S. 11---Doctrine of res judicata---Foundation.
The doctrine of res judichta as enacted in section 11 of the Code of Civil Procedure is founded on the general rule that "a man shall not be twice vexed for the same cause" and that "if an action be brought, and the merits of the question be discussed between the parties and a final judgment obtained by either, the parties are concluded and cannot canvass the same question again in another action, although, perhaps, some objection or argument might have been urged upon the first trial, which would have led to a different judgment. In such a case, the matter in dispute having passed in rem judicatum, the former judgment, while it stands, is conclusive between the parties, if either attempts, by commencing another action, to re-open that matter; and for this rule two reasons are always assigned: the one, public policy, for interest rei publicoe ut sit finis litium; the other, the hardship on the individual that he should be twice vexed for the same cause. When a party to litigation seeks improperly to raise again the identical question which has been decided by a competent Court, a summary remedy may be found in the inherent jurisdiction which our Courts possess of preventing an abuse of process. [p. 400] F Broom's Legal Maxims, pp.217, 218 and 220 ref.
(f) West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)--- ----S. 17---Exclusion of jurisdiction of Civil Courts.
The exclusion of the Civil Courts is not to be readily inferred but that such exclusion must either be explicitly expressed or clearly implied. Even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal had not acted in conformity with the fundamental principles of judicial procedure. [p. 401] H The Courts have a general jurisdiction over the administration of justice and when the legislature establishes a special tribunal the jurisdiction committed to such special tribunal is in fact carved out of the general jurisdiction of the Courts. It is therefore for the Courts to decide the true construction of the statute, which defines the area of a tribunal's jurisdiction, to see that that tribunal keeps itself within the limits of its special jurisdiction, for if it does not, then it trespasses into the general jurisdiction of the Courts. Therefore, if there is a dispute on the point whether a Court has or has not jurisdiction over a certain subject-matter, it can certainly hear that dispute even if the result be that it has to hold that it has no jurisdiction. In this sense, jurisdiction of Courts is never barred, for they are judges of their own jurisdiction and it is for them to decide whether in a given case their jurisdiction has been taken away. For, on principle it is for the Civil Court as a Court of general jurisdiction to determine in the last resort the limits of the power of a Court of special jurisdiction. [p. 400] G State v. Zia-ur-Rehman PLD 1973 SC 49; Hirday Nath's case AIR (sic) Cal. 34; Anisminic's case (1969)
2 AC 147 and Secretary of State v. Mask & Co. AIR 1940 PC 105 ref.
(g) West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)--- ----Ss. 10, 11, 12 & 17---Civil Court while interpreting the expresson "subsisting usufructuary mortgage" as it occurred in Ss.10, 11 & 12 of the Act did not venture upon any extraneous exercise. [p.
401] I Syed Jamal Shah's case PLD 1966 SC 49 ref.
(h) Jurisdiction-- --Exclusion of jurisdiction of Civil Courts---Principles. [p. G & H State v. Zia-ur-Rehman PLD 1973 SC 49; Hirday Nath's case AIR (sic) Cal. 34; Anisminic's case (1969) 2 AC 147 and Secretary of State v.
Mask & Co. AIR 1940 PC 105 ref.
(i) Ju ris diet ion-- ----It is the distinction attaching only to Judicial Tribunals that their acts within their jurisdiction though illegal are not null and void, but so far as the administrative officers or authorities are concerned there is no distinction between illegality and want of jurisdiction---When an administrative officer acts illegally he acts without jurisdiction---When there is jurisdiction to decide a particular matter, then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction. It is the distinction attaching only to Judicial Tribunals that their acts within their jurisdiction though illegal are not null and void, but so far as the administrative officers or authorities are concerned there is no distinction between illegality and want of jurisdiction. When an administrative officer acts illegally he acts without jurisdiction. Thus there is a presumpzion that "where Parliament confers on an administrative tribunal or authority, as distinct from a Court of law, power to decide particular questions defined by the Act conferring the power, Parliament intends to confine that power to answering the question as it has been so defined; and if there has been any doubt as to what that question is, this is a matter for Courts of law to resolve in fulfilment of their Cnstitutional role as interpreters of the written law and expounders of the common law and rules of equity. So if the administrative tribunals or authorities have asked themselves the wrong question and answered that, they have done something that the Act does not empower them to do and their decision is a nullity. [p. 401] J The question then is--does a clear error of law by a Court of law shown to have been conferred the power to decide questions of law make the decision without jurisdiction or without lawful authority? The Civil Courts are Courts of general jurisdiction; undoubtedly they have the power to decide all questions of law agitated before them.
When there is jurisdiction to decide a particualr matter, then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction. [p. 401] K Syed Shah's Case PLD 1966 SC 49; Racal Communication Ltd. (1981) AC 374, 382, 383 and Badrul Haq Khan v. Election Tribunal PLD 1963 SC 704 ref.
(j) West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)- ----Ss. 10, 11, 12 & 17---Civil Judge as a Court of general jurisdiction can decide question of law--- Where Civil Judge interpreted the words "subsisting usufructuary mortgage" occurring in Ss.10, 11 & 12, he had the jurisdiction to decide the same and the fact that he decided that wrongly did not make his decree without jurisdiction. [p. 402] L Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97; Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 distinguished. Pearlman's case (1979) 1 QB 56; South East Asia Fire Bricks's case 1981 AC 363 and Racal Communication Ltd.'s case 1981 AC 363 ref.
(k) Qanun-e-Shahadat (10 of 1984)- --,--Art. 58---Scope.
Article 58 of Qanun-e-Shahadat, 1984 entitles a party to a suit or other proceedings to show that a judgment, order or decree which is relevant under Articles 54, 55 & 56 of the Qanun-e-Shahadat and which has been proved by the adverse party was delivered by a Court incompetent to deliver it [p 402] M
(1) Civil Procedure Code (V of 1908) --Ss. 11 & 115---Revision-Respondents had contested the suit resulting in the judgment and decree in favour of petitioners which they had allowed to become final by not appealing against them, which was the only means of correcting the error of law into which the Trial Court had allegedly fallen-- Respondents slept over the matter for about two years and then adopted the cour c of challenging the said judgment and decree by the suit which course was not open to them--- Respondents, held, were guilty of not only violating the public policy upon which the doctrine of res judicata is founded but also vexing the petitioners twice for the same cause-Su& a party was not entitled to the discretion of Court under S.115, C.P.C. [p. 403] 0
(m) Civil Procedure Code (V of 1908)--- ----Ss. 11 & 115---West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964), Ss.10, 11, 12 & 17---Decree of a Civil Court declaring an order of an Authority to be without jurisdiction and void cannot be challenged in another civil suit and Civil Court cannot in a subsequent suit declare that the decree in the former civil suit was itself without jurisdiction and was of no legal effect. [p. 409] N Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97 and Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 distinguished. Rab Nawaz Khan Niazi for Petitioners. Allah Wasaya Malik for Respondents.
Date of hearing: 26th January, 1993.
' The question of law that falls for determination in this petition under section 115 of the Code of Civil Procedure is a question of great public importance ; it is whether a decree of a Civil Court declaring an order of an authority to be without jurisdiction and, void can be challenged in another civil suit and whether the Civil Court can in the subsequent suit declare that the decree in the former civil suit was itself without jurisdiction and was of no legal effect.
2. The predecessors-in-interest of the plaintiffs of this suit were occupancy tenants of the land in suit. By means of two mutations both dated 17-8-1911, they mortgaged their occupancy rights in favour of Sadullah and Abdullah. Later, in the year 1934 the original mortgagees, Sadullah and Abdullah, transferred their mortgagee rights in the land to the predecessor-ininterest of the defendants, in the suit. As is well known by operation of law, the occupancy rights were extinguished and the plaintiffs became the owners of the land in suit in 1960. On 1-3-1972 the plaintiffs filed an application under section 10 of the Punjab Redemption and Restitution of Mortgaged Lands Act, 1964 (to be referred to as the 1964 Act) for the restitution of the possession of the mortgaged land. The Collector by his order dated 29-8-1973 accepted their application.
3. The Collector's order dated 29-8-1973 was challenged by the mortgagees, defendants herein, by means of a civil suit. Their suit was decreed by a judgment of the Civil Judge dated 7-7-1977.
Although the decree dated 7-7-1977 was appealable decree, yet the plaintiffs did not appeal and, therefore, the decree attained finality. The result of the decree dated 7-7-1977 was that the Collector's order dated 29-8-1973 ceased to have any legal effect.
4. The matter so rested till 1979, when the plaintiffs brought this suit for a declaration that the decree dated 7-7-1977 was itself without jurisdiction.
5. Section 10 of the 1964 Act provides: "10. The mortgagor of any subsisting usufructuary mortgage not less than twenty years old, or of any usufructuary mortgage the period whereof has expired, may present a petition to the Collector for the restitution of possession of the mortgaged land.
' Explanation.---A mortgage shall be deemed to subsist for the purpose of this Chapter notwithstanding a decree or order for its redemption having been passed; provided that redemption has not taken place before the presentation of a petition under this section."
' Section 11 of that Act enacts that "where the Collector is satisfied that a petition is not in respect of a subsisting usufructuary mortgage not less than twenty years old, or a usufructuary mortgage the period whereof has expired, he shall dismiss the petition, recording his reasons for such order."
6. Section 12 empowers the Collector, "notwithstanding anything contained in any other enactment for the time being in force or any contract or decree or order of any Court", among others, to order that the mortgage shall be extinguished without payment of the mortgage money or any part thereof and where the mortgagee is in possession, to direct that the mortgagor be put into possession of the mortgaged land as against the mortgagee and that the title deed, if any, of such land in the possession of the mortgagee be restored to the mortgagor, if he finds that the application is in respect of the mortgaged land the possession whereof has remained with the mortgagee for a period of not less than twenty years or is in, respect of mortgaged land the term of the mortgage whereof has expired.
7. In this judgment the plaintiffs will be described as the owners and the defendants will be described as the mortgagees.
8. It appears from the judgment of the learned Civil Judge dated 7-7-1977 that the ground on which the mortgagees had challenged the order of the Collector dated 29-8-1973 was that they had become full owners of the mortgaged land by prescription, for their mortgage was more than 60 years old and that the Collector was wrong in law in directing the restitution of possession of the mortgaged land. The owners (they were defendants in that suit) contested the suit and the crucial questions were put in the following two issues:-- "(1) Whether the plaintiffs are the mortgagees in possession of the suit land for more than 60 years and the right of redemption has become barred by limitation? O.P.P.
(2) On proof of issue No, 1 whether the Assistant Commissioner, Isakhel has wrongly ordered the redemption of the suit land by his order dated 29-8-1973? O.P.P."
' The learned Civil Judge who decided that suit referred to the mortgage mutations dated 17-8-1911 and observed: "It is evident that the suit land was mortgaged by the father and two uncles of defendants in favour of Saidullah Khan and Abdullah in the year 1911. In the year 1934 the father of plaintiff purchased the rights of mortgagee vide Mutations Nos. 1910 and 1911. Since then the plaintiffs are in possession of the suit land and defendants have not redeemed the property.
Limitation for the redemption was closed on 17-8-1971 after the completion of sixty years." The learned Civil Judge noticed that the application under section 10 of the 1964 Act was brought on 17- 7-1972 and it was barred by time and "so the orders of the redemption of the suit land dated 29-8- 1973... ... ..Are wrong and unlawful." He, therefore, granted the mortgagees a declaration that they had become "full owner of the suit land.. ...... By lapse of sixty years, the order of the redemption of the suit land made by the Assistant Commissioner, Isakhel dated 29-8-73 is wrong, unlawful and shall have no effect on the rights of the plaintiffs."
9. We have seen that under section 10 of the 1964 Act the right to apply for restitution is given to the mortgagor "of any subsisting usufructuary mortgage" not less than 20 years old or of any usufructuary mortgage the period whereof has expired, and that by section 11, which is couched in mandatory language the Collector must dismiss the petition if he is satisfied that the petition is not in respect of a "subsisting usufructuary mortgage" not less than 20 years old or a usufructuary mortgage the period whereof has expired. Keeping the provisions of sections 10, 11 and 12 of the 1964 Act in mind, it should be clear that what the learned Civil Judge had held by his judgment dated 7-7-1977 was that the mortgage in question was not a subsisting usufructuary mortgage within the meaning of those provisions and, therefore, the Collector had no jurisdiction to order the restitution of possession of the mortgaged land to the owners.
10. The declaration sought by the owners in this suit was that they were the owners in possession of the suit land; that the Collector's order dated 29-8-1973 was a valid order and that the judgment and decree of the Civil Judge dated 7-7-1977 were illegal, void and without jurisdiction. The suit was contested by the mortgagees, one of the gounds of defence being that the decree of the Civil Court dated 7-7-1977 operated as res judicata and the Civil Court had no jurisdiction to set it aside.
Yet, the learned Civil Judge by his judgment dated 27-4-1982 decreed the suit and the learned Additional District Judge dismissed the mortgagees' appeal by his judgment dated 13-10-1983.
11. In coming to that conclusion the learned Courts below referred to the mortgage mutations to point out that though the mortgages were effected in the year 1911 yet the period of the mortgages was 5 years. In the opinion of the learned Courts below, and here it will be sufficient to quote from the judgment of the learned Additional District Judge, "the period of limitation for redemption of mortgage was to be reckoned from 1916. Application for restitution of mortgage Exh.P.30 was moved on 1-3-1972 and as such, period of 20 years, as envisaged under section 10 of Act XIX of 1964, had. Already elapsed. The right of redemption was to extinguish 60 years after 1916, i,e, in the year 1976. In other words, application under section 10 of Act XIX of 1964 was moved well within time and the case of original owners was duly covered by section 10 of the said Act. The Collector was, therefore, fully competent to order restitution and, thus, order Exh.P.32 was not without jurisdiction."
The learned Additional District Judge went on to hold that "the jurisdiction of the Civil Court was barred under section 17 of the said Act." Even otherwise, so held the learned Additional District Judge, "the order passed by... ... ..Civil, Judge.. Is patently illegal because the learned Civil Judge failed to understand the legal proposition involved therein."
12. Having so held, the learned Additional District Judge observed that "an order passed without jurisdiction is a nullity in the eyes of law and the Courts are always competent to ignore the same."
For this proposition he referred to two cases, namely, Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies (PLD 1964 Supreme Court 97) and The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 Supreme Court 331). The learned Courts below were thus led or, if I may say with respect, misled into holding that the judgment and decree of the Civil Judge dated 7-7-1977 were: without jurisdiction and, hence, it was a nullity and the same could be ignored." Such a decree in the opinion of the learried Additional District Judge "cannot operate as res judicata."
13. If this view of the Civil Court's jurisdiction be correct then it must necessarily produce extraordinary results. The Collector's order dated 29-8-1973 was declared to be wrong in law and, therefore, without jurisdiction by the Civil Court's decree dated 7-7-1977. In its turn that decree was in itself declared to be void and without jurisdiction by the learned Courts below. Suppose that this Court upholds the decrees of the Courts below, then tomorrow in another suit brought by the mortgagees, it will be on this view of the Civil Court's jurisdiction, open to another Civil Court to declare that the decrees passed in this suit, were based on a wrong view of the law and were, therefore, without jurisdiction. There will, therefore, be no end to litigation and the rights of the parties will always remain inchoate and uncertain. This view of the law must, therefore, lead to results so manifestly unjust, that I shudder to think that it can be correct.
14. In approaching the question of the Civil Court's jurisdiction, one must keep in mind the important distinction between general and limited jurisdiction or between the jurisdiction of superior and inferior Courts. This is a distinction between the jurisdiction of the Courts of law which exercise the judicial power of the State and that of the special tribunals and is described by the expressions "superior Courts" and "inferior Courts or Tribunals." There can be no doubt that the Civil Courts are Courts of general jurisdiction. The phrase "inferior Tribunals" is not used in any offensive sense; it is a categorising and not a derogatroy description. The phrase "inferior tribunal" merely means that the tribunal had a limited jurisdiction, as defined by the statute which sets up the tribunal (Anisminic's case (1969) 2 A.C. 147 at page 233). And as the Civil Court is deemed to have general jurisdiction, the law presumes that that Court had acted within jurisdiction. This presumption is denied to inferior Courts. It has been held that "nothing shall be intended to be out of the jurisdiction of a superior Court but that which specially appears to be so; and on the contrary , nothing shall be intended to be within the jurisdiction of an inferior Court but that which is so expressly alleged." (Rex v. Chancellor (1948) 1 K.B. 195 at 205, 206 cited in Sultan Ali v. Noor Husain PLD 1949 Lahore 301 at 316).
15. It is also well settled that the power which the Civil Courts exercise when declaring an act of an authority or tribunal to be without jurisdiction and of no legal effect is the power of judicial review.
In fact before the writ jurisdiction was conferred upon the High Courts by the insertion in 1954 of section 223-A in the Government of India Act, 1935, in the areas now forming part of Pakistan, the only means of redress in matters where the question was whether a tribunal or statutory authority had acted without or in excess of jurisdiction was a civil suit. The relief usually claimed was the relief of declaration. That the power of the Civil Court is the power of judicial review in such cases was recognized in Muhammad Tufail v. Abdul Ghafoor (PLD 1958 SC (Pak.) 201). In that case an order had been reviewed by an officer who was not competent to do so. The order was challenged in a petition under section 223-A of the Government of India Act, 1935. It was held that there was nothing to prevent a Civil Court from declaring that the order was not under the Pakistan Rehabilitation Ordinance, 1948, or beyond it. This course was not availed of; instead the aggrieved party invoked the writ jurisdiction of the High Court. It must be held, therefore, that when the Civil Court in. The suit of the mortgagees declared by its judgment dated 7-7-1977 that the order of the Collector dated 29-8-1973 was without jurisdiction it did so by way of judicial review. Similarly when the Courts below in this suit declared that the judgment and decree of the Civil Court dated 7-7- 1977 were without jurisdiction, they too were exercising the same power of judicial review. And in doing so, what they lost sight of was the important principle that judicial review is available as a remedy for mistakes of law made by inferior Courts and tribunals only and that mistakes of law made by Judges of the Civil Courts as Courts of general jurisdiction and Judges of the High Court can be corrected only by means of an appeal to an appellate Court (Lord Diplock in re: Racal Communication Ltd. (1981) AC 374 at 384). The Civil Court which gave the judgment dated 7-7-1977 was certainly not an inferior Court vis-a-vis the Civil Court in this suit; that Civil Court was as much a Court of general jurisdiction and hence a superior Court as the Civil Courts, who decided this suit.
In other words, the Civil Court who decided the mortgagees' suit and decreed it on 7-7-1977 was a Court of concurrent jurisdiction and not an inferior Court. It must follow, therefore, that there was no power of judicial review in the Courts below to review the judgment and decree dated 7-7-1977 and to declare that they had been made without jurisdiction and that the only means of correcting the judgment and decree dated 7-7-1977 was an appeal to the appellate Court.
16. The doctrine of res judicata as enacted in section 11 of the Code of Civil Procedure is founded on the general rule that "a man shall not be twice vexed for the same cause" and that "if an action be brought, and the merits of the question be discussed betweenthe parties and a final judgment obtained by either, the parties are concluded and cannot canvass the same question again in another action, although, perhaps, some objection or argument might have been urged upon the first trial, which would have led to a different judgment. In such a case, the matter in dispute having passed in rem judicatam, the former judgment, while it stands, is conclusive between the parties, if either attempts, by commencing another action, to re-open that matter; and for this rule two reasons are always assigned: the one, public policy, for interest rei .Publicoe ut sit finis litium; the other, the hardship on the individual that he should be twice vexed for the same cause." (See Broom's Legal Maxims at pages 217, 218 ). When a party to litigation seeks improperly to raise again the identical question which has been decided by a competent Court, a summary remedy may be found in the inherent jurisdiction which our Courts possess of preventing an abuse of process.
(Broom's Legal Maxims at page 220).
17. There is in the judgment of the learned Additional District Judge a mention of the provision of section 17 of the 1964 Act which section forbids a Civil Court "to entertain any claim or enforce any right under a mortgage declared extinguished under this chapter or to question the validity of any proceedings under this Chapter", for holding that the decree dated 7-7-1977 was without jurisdiction, for that section excluded the Civil Court's jurisdiction in these matters. Assuming that that section was intended to oust the jurisdiction of the Civil Courts, it is a well-recognized principle of law that the Courts have a general jurisdiction over the administration of justice and when the legislature establishes a special tribunal the jurisdiction committed to such special tribunal is in fact carved out of the general jurisdiction of the Courts. It is therefore for the Courts to decide the true construction of the statute, which defines the area of a tribunal's jurisdiction, to see that that tribunal keeps within the limits of its special jurisdiction, for if it does not, then it trespasses into the general jurisdiction of the Courts. Therefore, if there is a dispute on the point whether a Court has or has not jurisdiction over a certain subject-matter, it can certainly hear that dispute even if the result be that it has to hold that it has no jurisdiction. In this sense, jurisdiction of Courts is never barred, for they are judges of their own jurisdiction and it is for them to decide whether in a given case their jurisdiction has been taken away. For, on principle it is for the Civil Court as a Court of general jurisdiction to determine in the last resort the limits of the power of a Court of special jurisdiction. (See State v. Zia-ur-Rehman PLD 1973 SC 49.At 77; Hirday Nath's case AIR (sic) Cal. 34 and Anisminic case (1969) 2 AC 147). As was held in the well-known case of Secretary of State v.
Mask & Co. (AIR 1940 PC 105): "It is settled law that the exclusion of the Civil Courts is not to be readily inferred but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure."
18. It has been seen that the Civil Court which gave the decision dated 7-7-1977 was interpreting the expression "subsisting usufructuary mortgage" as it occurred in sections 10, 11 and 12 of the 1964 Act. In interpreting that expression the learned Civil Judge who gave the decision dated 7-7-1977 was not venturing upon any extraneous exercise. The learned Civil Judge had to interpret that expression in order to determine his own jurisdiction. As was said by Kaikaus, J. In Jamal Shah case PLD 1966 SC at 49 it is the distinction attaching only to Judicial Tribunals that their acts within their jurisdiction though illegal are not null and void, but so far as the administrative officers or authorities are concerned there is no distinction between illegality and want of jurisdiction. When an administrative officer acts illegally he acts without jurisdiction. Thus there is a presumption that "where Parliament confers on an administrative tribunal or authority, as distinct from a Court of law, power to decide particular questions defined, by the Act conferring the power, Parliament intends to confine that power to answering the question as it has been so defined; and if there has been any doubt as to what that question is, this is a matter for Courts of law to resolve in fulfilment of their Constitutional role as interpreters of the written law and expounders of the common law and rules of equity. So if the administrative tribunal or authority have asked themselves the wrong question and answered that, they have done something that the Act does not empower them to do and their decision is a nullity. "(Lord Diplock in re:Racal Communication Ltd. (1981) AC 374, 382, 383).
19. The question then is--does a clear error of law by a Court of law shown to have been conferred the power to decide question of law make the decision without jurisdiction or without lawful authority? As has been observed above the Civil Courts are Courts of general jurisdiction; undoubtedly they have the power to decide all questions of law agitated before them. It is a well known and indisputable proposition that when there is jurisdiction to decide a particular matter; then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction. As Kaikaus, J. Said in Badrul Haq Khan v. Election Tribunal (PLD 1963 SC 704): The word 'decide' implies a power to come to more than one conclusion." I do not see any difference in a case where the question of law decided is a matter on which two opinions can easily be held and a case where the decision on a question of law appears to be clearly erroneous. It would not make difference that on logical reasoning the interpretation of law by the Tribunal could not be supported."
20. Having noticed the propositions of law which must govern this case I am now in a position to approach the question whether the learned Courts below were right in declaring that the decree of the learned Civil Judge dated 7-7-1977 was without jurisdiction and a nullity . In holding that the Collector had acted ultra vires his powers under sections 10, 11 and 12 of the 1964 Act, the learned Civil Judge was interpreting the words "subsisting usufructuary mortgage." Assuming that he was wrong in law in taking the view that the period of 60 years was to be reckoned from 1911 and that the application for restitution of possession under section 10 was not made timeously, the simple question is whether the learned Civil Judge had as a Court of general jurisdiction the jurisdiction to decide that question of law or not. The answer must be that he had the jurisdiction to decide it; and the fact that he decided it wrongly did not on the well established principles stated above make his decree without jurisdiction. A similar question arose before the Court of Appeal of England in Pearlman case (1979 1 QM 56). Geoffray Lane, L.J. In his minority judgment said: "The Judge is considering the words it 'le schedule which he ought to consider. He is not embarking on some unauthorised or extraneous or irrelevant exercise. All he has done is to come to what appears to this Court to be a wrong conclusion upon a different question. It seems to me that, if this Judge is acting outside his jurisdiction, so then is every Judge who comes to a wrong decision on a point of law."
' This view of Geoffary Lane, L.J. Was approved by the Privy Council in South East Asia Fire Bricks case (1981 AC 363) and by the House of Lords in Racal Communication Ltd. (1981 AC 363) and so far as I know is the prevalent law of England. I respectfully adpot it.
21. For these reasons I am of the opinion that the learned Courts below were wrong in treating the decree of the learned Civil Judge dated 7-7-1977 as a nullity. For the reasons stated above, I cannot think that the provisions of section 58 of the Qanun-e-Shahadat, 1984 can be invoked to the aid of the owners. That Article entitles a party to a suit or other proceeding to show that a judgment, order or decree which is relevant under Articles 54, 55 and 56 of the Qanun-e-Shahadat and which has been proved by the adverse party was M delivered by a Court incompetent to deliver it. But it has been seen that the Civil Judge who passed the decree dated 7-7-1977 was competent to pass it.
The inexorable conclusion must be that the decree dated 7-7-1977 was competently made and, therefore, operated as res judicata. In this view of the matter the judgment and decree dated 7-7- 1977 were with jurisdiction. 1' As regards the observations referred to by the learned Courts below in Muhammad Swaleh case and Raja Muhammad Fazil Khan case it is noteworthy that Muhammad Swaleh case was a case under section 115 of the Code of Civil Procedure; it was thought unnecessary to decide whether the order in question and the ex parte decree were wholly void "for there is no doubt as to their being not in accordance with law and this is. a sufficient ground for their being set aside" and in Raja Muhammad Fazil Khan case the question was whether "an entitlement certificate issued under Martial Law Regulations Nos. 84 and 89 of 1960 could be cancelled by an Officer on Special Duty of the Central Record Office on the ground that it had been obtained by practising fraud on the Settlement and Rehabilitation Department." In other words the order in question was not by a Court of general jurisdiction but by a Settlement Officer with limited statutory jurisdiction. The principles laid down in those cases must, therefore, be read in the context of their own particular facts.
22. Learned counsel for the respondents then argued that as the view of the law taken by the learned Civil Judge who gave the decision dated 7-7-1977 was wrong and what the judgments of the learned Courts below did was to correct a manifest injustice therefore, this Court should not exercise its discretion under section 115 of the Code of Civil Procedure in favour of the revision petitioners. I cannot agree. The respondents had contested the suit resulting in the judgment and decree dated 7-7-1977. They had allowed them to become final by not appealing against them, which, as observed above was the only means of correcting the error of law into which the learned Civil Judge had allegedly fallen. They slept over the matter for about two years and then adopted the course of challenging the judgment and decree dated 7-7-1977 by this suit which course was not open to them. They were thus guilty of not only violating the public policy upon which the doctrine of res judicata is founded but also vexing the petitioners twice for the same cause. Such a party is not in my opinion entitled to the discretion of the Court.
23. In the result, I accept the revision petition, set aside the judgments and decreed of the Courts below and dismiss the suit with costs throughout.
Revision accepted. PLD 1993 Lahore 403 Before Sh. Muhammad Zubair, J DOST MUHAMMAD---Petitioner versus STATION HOUSE OFFICER, POLICE STATION FAROOQABAD, DISTRICT SHEIKHUPURA---Respondent Criminal Miscellaneous No,154-H of 1993, heard on 14th April, 1993.
(a) Criminal Procedure Code (V of 1898)-- ----S. 491---Habeas Corpus petition---Evidence recorded in High Court revealed that at the time of raid by the Bailiff for recovery of detenus the daily diary register was not available in the police station as the same had been summoned by the D.S.P. And it was not clear if the D.S.P. Had done so bona fide or it was a device engineered by the relevant police officers to frustrate the orders of High Court and prevent the Bailiff from knowing whether the detention of the detenus found in the police station was illegal or not--- Detenus were set at liberty after recording their statements in circumstances. [pp. 404, 405, 407] A, B & D
(b) Police Act (V of 1861)--- ----S. 44---Police Rules, R.22.48(2)---General Diary, removal of---According to the conditions and the object for which the Current General Diary is maintained, it is not permissible, except in exceptional circumstances i,e,, under specific orders of the Court, to remove the same from the police station, lest it may affect the liberty of an individual as enshrined in the Constitution of Pakistan. [p. 407] C Khurram Shehzad Baig for Petitioner. Najam-uz-Zaman, A. A.-G. For Respondeqt. Muhammad Sharif Khokhar for the Complainant.
Date of hearing: 4th April, 1993.
' Facts relevant for the disposal of this petition are that Dost Muhammad filed the present petition under section 491, Cr.P.C. For the production of Mst. Said Bibi his wife and Mst. Rasulan Bibi his daughter-in-law, who according to him, were being detained illegally by the S.H.O. Police Station Farooqabad, District Sheikhupra. Vide orders of this Court dated 3-3-1993, a bailiff of this Court was deputed to recover the alleged detenus and produce them before this Court on 6-3-1993. The bailiff recovered the aforesaid detenus and produced them accordingly. On 6-3-1993, the statement of Kafayatullah SI/SHO was recorded, who inter alia, stated:-- "... ...It is correct that the daily diary (Roznamcha) was not in the police station, when the bailiff visited the said police station on 3-3-1993 at 3.30 p.m. Muhammad Ibrahim SI of the police station took the daily diary register from the said police station under the orders of the DSP Muhammad Hussain Waraich.... ..."
Muhammad Ibrahim SI also in his statement admitted that he had taken the daily diary from the PS to the DSP, but he could not tell under what authority of law he did so. Similarly, Muhammad Arif Bailiff of this Court deposed that when he raided PS Sadar Farooqabad on 3-3-1993 at 3-30 p.m., there was no daily diary in the police station and the M.H.C. Nazir Ahmad told him that the SHO had taken away the daily diary.
2. On 6-3-1993, in view of the statements of the SHO, the Bailiff and Muhammad Ibrahim SI, it was directed that a Law Officer should appear to assist this Court whether a police officer can take away the daily diary from the police station in order to make further entries, and the case was adjourned to 10-3-1993. On that date, after recording the statements of the detenus, they were set at liberty. In order to verify the statements of the police officers, it was directed that Ch. Muhammad Hussain Waraich DSP should appear before this Court. His statement was recorded on 17-3-1993, in which he admitted that he summoned the current daily diary (Roznamcha) from the aforesaid police station in order to verify the absence of Ghulam Nabi FC No, 670, vide his order dated 2-3-1993. In his -deposition he could not give the law under which he summoned the daily diary being maintained at the police station under section 44 of the Police Act and he was not sure whether there was any entry made in Register No, V with respect to the summoning of daily diary or not, which is maintained for the circulation of his order as required under the Police Act or Rules.
Thereafter, the case was adjourned to 4-4-1993, for arguments.
3. The learned counsel for the parties were directed to address arguments on this legal issue, whether the current daily diary, which is being maintained under section 44 of the Police Act and is an important document, because every event which occurs in the police station has to be recorded therein, could be removed from the police station or be summoned by the DSP in spite of the fact that it is maintained in duplicate and one carbon copy is invariably sent to the superior police officer as designated by the S.P.
' Learned counsel for the petitioner addressed arguments, but proper assistance was given by Mr. Najam-uz-Zaman, AA.-G.
' Before embarking on the legal implication of this legal issue, it would be advisable to reproduce section 44 of the Police Act, which reads:- "44. Police officer to keep diary.--It shall be the duty of every officer incharge of police station to keep a general diary in such form as shall, from time to time, be prescribed by the Provincial Government and to record therein all complaints and charges preferred; the names of all persons arrested, the names of the complainants, the offences charged against them, the weapons or property that shall have been taken from their possession or otherwise and the names of the witnesses who shall have been examined.
' Magistrate of the district shall be at liberty to call for and inspect such diary."
' A bare reading of this section shows that in the first place, this diary is a chronological record of the work of a police station, secondly, this diary is kept in duplicate, the carbon copy being sent to the District Superintendent of Police and the original kept at the station. The officer in charge of the police station is responsible for all the entries made in the diary; the entries must be made by him personally or under his direct suerintendence and under his signature. In this way, the District Superintendent of Police can see what work a police station is doing and how a station is handling any complaint or report made to it and to see whether a case has been sufficiently dealt with. This register besides controlling the movements of the police officers, has to record the visit of private persons in the police station, the purpose of their visit and the record of any event which happens during any period in the police station. The District Magistrate is specially given the power to call for and inspect the diary, this rule ensures the rigid accuracy that should characterise the entries made therein. However, the summoning of current General Register {{URDU TEXT}} even by the District Magistrate is subject to this qualification that proper arrangement is made in the police station, say by way of duplicate diary, for recording the events therein, in the absence of current General Register. Normally, the senior police officer or the District Magistrate should not disturb this register, because if this is allowed, then the liberty of the people which is enshrined in Article 4 of the Constitution of the Islamic Republic of Pakistan would be jeopardised and the police officers could conveniently hoodwink the process of the Court, especially, the bailiff of this Court by stating that the said register has been summond by their superior officers and a forged entry could be made therein later on, if the alleged detenu is found illegally confined in the police lock-up, though at the relevant time he was not shown formally atrested in the Generally Diary "Roznamcha", as required by law.
4. The General Diary is the only document which provides protection to the people against the highhandedness, malpractices and illegal detention by the police.
' In this connection, reference to rule 22.48, sub-rule (2) of the Police Rules, is necessary which reads:- "22.48. Register No, II. (1) ...............
(2) The daily diary is intended to be complete record of all events which take place at the police station. It should, therefore, record not only the movements and activities of all police officers , but also visits of outsiders, whether official or non-official, coming or brought to the police station for any purpose whatsoever."
' Punishment for making false entry in the said register is provided under rule 22.50 ibid, besides penal action under section 177, P.P.C. Read with section 29 of the Police Act.
5. After examining the relevant law, rules and regulations on the subject and hearing the learned counsel for the petitioner as well as the learned Law Officer, I am of the firm view that' according to the conditions and the object for which the General Diary is maintained, it is not permissible, except in exceptional circumstances, i,e, under specific orders of the Court, to remove the current diary from the police station, lest it may affect the liberty of an individual as enshrined in the Constitution of Islamic Republic of Pakistan. Even the District Magistrate should avoid calling for the current general diary, as this general diary is being maintained by means of carbon copy. The District Magistrate should normally verify the facts from the carbon copy. In case of extreme doubt he should depute some senior officer to check the entries of current general diary personally from the original register lying in the relevant police station.
' In the present case, the D.S.P. Had summoned the register and from his own deposition it is not clear whether this order was recorded in his Register No, 5, in order to make probe about the absence of a constable, so it cannot be said at this stage with certainty, whether the D.S.P.
Summoned the general diary bona fide or it is a device engineered by the relevant police officers to frustrate the orders of this Court, so that the bailiff may not know the true picture of the facts, whether the detenus found in the police station were in the illegal detention of the police or not. In this view of the matter, I direct the Inspector-General of Police, Punjab, that he should order an inquiry into the facts by a superior officer, not below the rank of a S.P., to find out under what circumstances, the D.S.P. Summoned the current general diary, when he himself being the S.D.P.O.
Of the police station could examine the said Register at any time in the the police station, where it is being maintained.
6. During the hearing of some other cases, it has come to my notice in the recent past, that this practice has developed that current general diary register of the police is taken out from the police station at will, sometimes under direction of the superior police officer, not competent under the provisions of section 44 of the Police Act and sometimes the S.H.O. Himself brings the register to the Court of his own accord, without there being any formal orders by the Court, which is hereby deprecated, and it is directed that under no circumstance, the original current general diary register be taken out from the police station. If it becomes inevitable to do so, under the specific orders of the Court, then the S.H.O. Is bound to make proper arrangements that no interpolation is made in the said register, when it is out of the police station. In the absence of this register suitable arrangements be made at the police station for recording each and every event, as contemplated by section 44 of the Police Act. In order to curb this illegal practice, the Inspector-General of Police is directed to issue directive to all concerned police officers, through their respective DIGs and SPs in the Punjab that the current general diary under no circumstance should be removed from the police station and that entries in the said Register should be recorded promptly as required by section 44 of the Police Act.
7. A copy of this order should be sent to the Inspector-General of Police, Punjab, Lahore, for appropriate action and compliance, under intimation to this Ccurt. With these observations, this petition is disposed of.
Petition allowed. PLD 1993 Lahore 408 Before Ch. Fazal Karim, J NAWAB DIN and others--Appellants versus ISMAIL through Legal Heirs--Respondents R.SA. No,381 of 1970, heard on 6th April, 1993.
Punjab Pre-emption Act (I of 1913)--- ----S. 15---Preferential right of pre-emption---Plaintiff, in order to succeed must retain his preferential right at three stages, namely, at the date of the sale, at the date of the suit and at the date of the decree---Plaintiff who was co-sharer of land in question at the time of sale but had lost his right of preemption as a result of the consolidation of holdings and was not a co-owner of the new land at the time of the suit as also at the time of the date of the decree, was not entitled to pre-empt the sale. [pp. 409, 410] A, B & C Qaim Din v. Said Ahmad and another PLD 1967 Lah. 1171 distinguished. Malhi Khan v. Member (Revenue), Board of Revenue, Punjab, Lahore and 2 others PLD 1991 SC 824; Qaim Din v. Said Ahmad and another PLD 1967 Lah. 1171 and 32 IC 120 ref. Iftikhar Ahmad Dar and Ahmad Din Farooq for Appellants. Masood Mirza for Respondents.
Date of hearing: 6th April, 1993.
' The facts leading to this second appeal by the vendee defendants in a pre-emption suit are as follows.
2. The land in suit measures 7 Kanals 19 Marlas; it was 5/16 share of land measuring 25 Kanals 9 Marlas comprising Khewat No, 48 according to the Jamabandi for the year 1960-61. The vendors Mst. Jantay and Mst. Begum sold it by means of a mutation attested on 6-8-1964. The plaintiff Ismail, now respondent, instituted this suit to pre-empt the sale on 29-7-1965 on two grounds; (i) that he was a co-sharer in the land in suit and (ii) that he was a collateral of the vendors. It is common ground between the parties that before the institution of the suit there had been consolidation of holdings under the Consolidation of Holdings Ordinance, 1960, with the result that a new land was allotted in lieu of the land subject-matter of the sale mutation. It was found that the plaintiff was a collateral of Mst. Begum vendor but was not a collateral of the other vendor Mst.
Jantay and that the transaction in question was indivisible. It was found also that the plaintiff was not a co-owner in the Khata of the new land allotted to the vendee defendants in lieu of the land subject-matter of the sale mutation. The learned Civil Judge dismissed the suit by his judgment dated 18-2-1969 on the ground that with the consolidation of holdings, the plaintiff had ceased to be a co-owner of the land in suit. On the plaintiffs appeal, however, the learned Additional District Judge decreed the suit by his judgment dated 7-4-1970 in respect of the land measuring 7 Kanals ,14 Marlas which according to him had been given to the vendee defendants in lieu of the old land measuring 7 Kanals 19 Marlas. The learned Additional District Judge failed to understand "how the Consolidation proceedings could deprive the appellant of his right to purchase the land in preference to the vendees". He was prepared to concede that the plaintiff "should have established the existence of this right, not only at the time of the sale but also at the time of the institution of the suit, to entitle himself to the passage of a decree for possession by pre-emption", but the real question in his opinion was "whether the consolidation of holdings took away the right which he enjoyed at the time of the sale, because of the circumstance of being a co-sharer in the same Khewat with respondent Nor. In the view of the learned Additional District Judge for purposes of a pre-emption suit, the plaintiff "will still be deemed to have been a co-sharer in the same Khewat alongwith Mst. Jantay even at the time of the institution of the suit irrespective of consolidation of holdings and the fact that the some new land had been given to the vendees in a different Khewat or plot". For his view the learned Additional District Judge derived support from Qaim Din v. Said Ahmad and another PLD 1967 Lahore 1171.
3. It is well settled that in order to succeed the plaintiff must retain his preferential right of pre- emption at three stages, namely, at the date of the sale, at the date of the suit and at the date of the decree. Malhi Khan v. Member (Revenue), Board of Revenue, Punjab, Lahore and 2 others PLD 1991 Supreme Court 824. Also see Qaim Din v. Said Ahmad and another (PLD 1967 Lahore 1171 at page 1185). Here, the plaintiffs claim to preemption was founded upon his being a co-sharer. As observed above, the consolidation of holdings was complete on 31-12-1964, that is, before the institution of this suit. Admittedly, in the new Khata, the plaintiff was not an owner and had, therefore, as a result of the consolidation of holdings lost the preferential right of pre-emption. In other words although he was a co sharer of the land subject-matter of the sale mutation at the date of the sale yet he had ceased to be so at the date of the suit: Learned counsel for the appellants cited a case reported as 32 IC 120 in which, as a result of partition of holdings before the institution of the suit, the plaintiff had ceased to be a co-owner of the land in suit and his suit was dismissed and argued that the same principle applies to this case. Learned counsel for the plaintiff on the other hand supported the reasoning of the learned Additional District Judge; he was of the view that the learned Additional District Judge had rightly relied upon Qaim Din case.
4. The facts of Qaim Din case were that the plaintiff had claimed to preempt the sale on the grounds (a) that he was a co-sharer in the Khata and (b) that he was a co-owner in the Taraf, Patti or the sub-division in which the land in suit was situated alleging that the vendee was not a co- owner therein. The plaintiff was not proved to be a co-sharer in the Khata. The Courts, however, held that the plaintiff was a co-owner in the Taraf, Patti and the sub-division concerned and also that "the new land is situated in Patti Amir Khan and the plaintiff-respondent has been held to be an owner in the said Patti". In that case there were consolidation of holdings during the pendency of the suit; the plaint was amended and the relief of possession was sought in respect of the new land also. Thus, what distinguishes that case from this case is the important fact that in that case, despite the consolidation of holdings the plaintiff had continued to retain his right of pre-emption.
Then the proposition of law debated in that case was altogether a different proposition; it was whether "by the operation of the consolidation proceedings, the land which was the subject-matter of the original sale no longer existed and having been substituted by the new land, no decree for pre-emption could be passed against the new land". This is not the question in this case. It is also significant to note that the learned Judge, late K.E. Chauhan, J. Did notice the class of case in which the plaintiff had based his right of pre-emption on co-ownership but had lost it during the pendency of the suit as a result of the partition of the Khata. As regards that class of case he observed that the emphasis in those cases was on the qualification of the plaintiff-pre-emptor rather than on the change in the pre-empted property" and those cases had, therefore, no relevance to the facts and circumstances of the case before him. In that behalf the learned Judge also noted the principle that the plaintiff must retain his preferential right of preemption at the date of the sale, at the date of the suit and at the date of the decree. I am, therefore, of the opinion that the ratio decidendi of Qaim Din case is not applicable to the facts of this case. I, therefore, hold that as the plaintiff had lost his right of pre-emption as a result of the consolidation of holdings and was not a co-owner of the new land at the date of the suit as also at the date of the decree, he was not entitled to pre-empt the sale.
5. For these reasons, the appeal is accepted, the judgment and decree of the learned Additional District Judge dated 7-4-1970 are set aside and the suit is dismissed. The parties are, however, left to bear their own costs.
Appeal accepted. PLD 1993 Lahore 411 Before Khalid Paul Khawaja, J Mst. SARDARAN BIBI---Petitioner versus TM DIN---Respondent Civil Revision No,1296-D of 1988, heard on 7th December, 1992.
(a) Muhammadan Law--- ----Gift---Proof---Donor, an illiterate villager of 80 years at the time of alleged execution of gift deed---Proof of execution, in such a case should be consisting of unimpeachable evidence and free from all possible doubts. [p. 414] A
(b) Muhammadan Law--- ----Gift---Immovable property---Delivery of possession---Gift of immovable property of which the donor was in actual possession, was not complete unless he physically parted with the said possession and in case the gifted property was in the possession of tenants the gift would be complete only when the donor directed such tenants to attorn to the donee---Delivery of possession when not necessary. A gift of immovable property, of which the donor is in actual possession is not complete unless he physically parts with the said possession and in case the gifted property is in the possession of tenants the gift would be completed only when the donor directs the said tenants to attorn to the donee. Delivery of possession is not necessary where the gift is from a father to his minor child or by a guardian to his ward. In the present case, the land was in possession of tenants who were attorning to the alleged donor and therefore, either physical possession should have been delivered to the donee or the tenants should have been asked by the donor to attorn to the donee. As this had not been done the Courts were justified in holding that the gift in question was incomplete and thus invalid. [p. 415] B Ibrahim v. Mst. Wazir Begum PLD 1987 Lah. 1087 distinguished. Muhammad Sarwar Awan for Petitioner. Muhammad Sadiq for Respondent.
Date of hearing: 7th December, 1992.
' This revision petition is directed against the judgment dated 26-6-1988 whereby the learned Additional District Judge-II, Okara dismissed the petitioner's appeal against the judgment and decree dated 6-3-1988 by virtue of which the learned Civil Judge, Dipalpur had decreed the respondent's suit for declaration and consequential relief.
2. The brief facts which gave rise to the present revision petition are that on 23-12-1985 Taj Din respondent instituted a suit against his daughter Mst. Sardaran Bibi petitioner for a declaration to the effect that he was the owner in possession of the suit land measuring 170 Kanals 14 Marlas (fully detailed in para. No,1 of the plaint) and that the registered gift deed 23-1-1985 purporting to have been executed by him in her favour was fake, fictitious and the result of misrepresentation. By way of consequential relief he sought the issuance of permanent injunction to restrain the petitioner from interfering with his possession over the said land. It was asserted in the plaint that the respondent was an old man who had no male issue and had only seven daughters including the petitioner. The petitioner's husband, who was a clever person, had forged a fake gift deed showing that the respondent had gifted the suit land to the petitioner. The respondent maintained that he had never executed the said gift deed nor did he appear before the Sub-Registrar at the time of the registration of the said deed. He further asserted that he had never got the suit land mutated in favour of the petitioner.
3. The petitioner resisted the suit and maintained that the respondent had himself got the gift deed in question executed in her favour and that he had also appeared before the Sub-Registrar at the time of registration of the said document. She further claimed that the possession of the suit land was also transferred to her under the said gift. She also raised a number of legal objections which are reflected in the following issues:--
(1) Whether the plaintiff is estopped to file the present suit by way of his words and conduct? OPD
(2) Whether the suit is not maintainable in its present form? OPD
(3) Whether the suit has been incorrectly valued for the purposes of court-fee and jurisdiction? If so, to what effect? OPD
(4) Whether the suit is mala fide and collusive and that the defendant is entitled to receive special costs from the plaintiff? OPD
(5) Whether the impugned "Hiba" dated 31-12-1985 is fictitious, illegal and ineffective and also Mutation No,582 dated 28-3-1985 is void, cancelled and ineffective qua the rights of the plaintiff?
OPD
(6) Whether the plaintiff is entitled to the relief prayed for? OPP
(7) Relief.
4. The parties produced their oral as well as documentary evidence on the above issues. The respondent's suit was decreed against the petitioner by the learned trial Court. She lodged an appeal but the same was dismissed by the learned appellate Court.
5. By this revision petition the petitioner has called in question the propriety of the decisions of the two Courts below.
6. I have heard the learned counsel for the parties and have also gone through the record.
7. The concurrent findings of the two Courts below are to the effect that execution of the gift deed in question had not been proved and even otherwise the gift in question was invalid because of the non-delivery of the possession of the land in question by the donor to the donee.
8. Learned counsel for the petitioner has contended that there was sufficient material on record to show that the gift deed in question was genuine and had been duly proved through reliable evidence and that as the parties were living together the delivery of the possession of the land in dispute by the respondent to the petitioner was not necessary and thus the gift in question could not be held to be invalid on that count. Learned counsel submitted that the learned Courts below had misread the evidence and had reached incorrect conclusions. Conversely, learned counsel for the respondent has defended the impugned judgments and decrees.
9. Exh.D.1 is the gift deed in question. Its certified copy Exh.P.2 has also been placed on record. The document shows that it was executed on 23-1-1985 and was registered on the same day. Sh. Noor Din D.W.2 is its scribe while Doona D.W.4 and Shah Muhammad D.W.5 are the two attesting witnesses of the said document. D.W.1 Hamid Baig was the Sub-Registrar before whom the registration proceedings had taken place. Mst. Sardaran Bibi petitioner had appeared as D.W.3. The D.Ws. Have supported the petitioner's case i,e, that Taj Din respondent had executed the gift deed Exh.D.1 and had put his thumb mark on it and that he had also appeared before the Sub-Registrar for the registration of the said deed.
10. Taj Din respondent appeared as P.W.1 and denied having executed the gift deed Exh.D.1. He categorically stated that he never gifted any land to the petitioner and asserted that the gift deed in question was a forged and fabricated document. The deposition of Ali Muhammad P.W.2 who is a cousin of respondent, is to the effect that the petitioner and her husband had obtained his thumb-impressions on certain papers on the pretext that they had to obtain some loan. He further stated that subsequently he came to know that his thumb-impression was also obtained on the registered deed in question whereby Taj Din respondent had been defrauded and deprived of his land and that thereafter (on 25-9-1986) he swore an affidavit Exh.P.1 before a Magistrate to the effect that the registered gift deed was fake and the result of fraud and misrepresentation. P.W.3 Ghulam Murtaza who owns land near the land in dispute stated that the respondent was in possession of the said land. P.W.4 Noor Muhammad grandson of the respondent stated that he was cultivating the suit land as a tenant under the respondent and was paying Batai to him.
' It has not been proved that the thumb-impression on Exh.D.1 purporting to be that of the respondent was actually his thumb-impression. The disputed thumb-impression (on Exh.D.1) was sent to the Finger Print Expert in the Finger Print Bureau alongwith the admitted thumb-impressions of the respondent for comparison. The Expert reported that the thumb-impression on the gift deed in question was not clear enough to permit comparison with the admitted thumb-impression in minor details and thus no opinion could be given.
12. Taj Din respondent, who is an illiterate villager, was about 80 years old at the time of the alleged execution of the gift deed. In such a case the proof of the execution of the gift deed should have consisted of unimpeachable evidence which should be free from all possible doubts. He had seven daughters and no son. A pertinent question arises as to why did he gift away his entire land to one of his daughters, i.e the petitioner, excluding the other six. The petitioner in her statement has not adverted to this aspect of the matter and has not stated as to why she was preferred over her other sisters. In the gift deed, contrary to the admitted facts, it is stated that the respondent had no daughter except Mst. Sardaran Bibi the petitioner. Had the respondent executed the said gift deed, contended his learned counsel, he would not have made such a mis-statement. The dubious nature of the gift deed in question is further highlighted when the petitioner states in her statement as P.W.3 that she had spent about Rs,2,00,000 on the registration of the gift deed out of which 20,000 rupees were paid to the scribe. This statement was sufficient to create suspicion about the whole transaction. Influenced by this statement the learned Courts below had come to the conclusion that the gift deed in question was of a doubtful character. I am of the view that they were justified in assuming so, for with this amount it was not difficult to purchase a few witnesses and manufacture the document in question. As the view taken by the learned Courts below was possible in the circumstances of the case I am of the opinion that any interference from this Court with the concurrent findings of the said Courts in revisional jurisdiction, would not be justified.
13. This brings us to the question as to whether the possession of the land in dispute was delivered by the respondent to the petitioner under the gift deed. No doubt in the recital of the gift deed Exh.D.1 it is mentioned that the possession had been delivered to the petitioner but it is a settled principle of law that the same is not enough to establish the factum of the delivery of possession.
The petitioner's own witness D.W.5 Shah Muhammad has admitted that the respondent used to receive the Theka of the suit land, that Noor (P.W.4) and Jalla were cultivating the said land, that he did not know if the respondent was receiving anything from them and that Mst. Sardaran petitioner was not receiving any share from the said cultivators. Statement of Ghulam Murtaza P.W.3 is to the effect that the respondent was in possession of the suit land and Noor Muhammad (P.W.4) states that he was cultivating the land in dispute as a tenant under the respondent and previously the same was cultivated by one Muhammad Abbas. There is thus sufficient evidence on record to establish that the possession of the land in dispute, physical .Or constructive, was never delivered by the donor to the donee under the gift in question and therefore, on this count also the gift was rendered Invalid. Relying on Ibrahim v. Mst. Wazir Begum PLD 1987 Lah. 1087 learned counsel for the petitioner submitted that under the Muslim Law it is not always necessary for donor to physically part with the possession of the gifted property. He further submitted that mere intention on the part of the donor was sufficient especially where the donor, his daughter the donee and her husband were all living in the same house. I am afraid the authority cited by the learned counsel is clearly distinguishable from the facts of this case. Firstly, there is no evidence on record to establish that the petitioner, her husband and the respondent were living in the same house and secondly in the cited case actual delivery of possession of the gifted land was held to be unnecessary because of the fact that the husband of the donee had all along been looking after and managing the said property. In the present case the petitioner's husband was neither looking after the land nor managing it. It is settled law that a gift of immovable property, of which the donor is in actual possession, is not complete unless he physically parts with the said possession and in case the gifted property is in the possession of tenants the gift would be completed only when the donor directs the said tenants to attorn to the donee. Delivery of possession is not necessary where the gift is from a father to his minor child or by a guardian to his ward. In the present case, the land was in possession of tenants who were attorning to the respondent and therefore, either physical possession should have been delivered to the donee or the tenants should have been asked by the donor to attorn to the donee. As this has not been done the learned Courts below were justified in holding that the gift in question was incomplete and thus invalid. Their concurrent findings on this pure question of fact are not assailable in revision.
14. In view of the above discussion there is no merit in this revision petition which is dismissed with costs.
Petition dismissed.
PLD 1993 Lahore 416 Before Sh. Ijaz Nisar, J Mst. SHABANA CHAUDHARY---Petitioner versus STATION HOUSE OFFICER, POLICE STATION AKBARI GATE, LAHORE and 4 others--Respondents Writ Petition No,7208 of 1991, decided on 4th April, 1993.
(a) Criminal Procedure Code (V of 1898)-- ----S. 561-A---Direct entertainment of petition by High Court not barred. [p. 420] A Mian Munir Ahmad v. The State 1985 SCMR 257 rel.
(b) Penal Code (XLV of 1860)-S. 406/420---Constitution of Pakistan (1973), Art. 199---Quashing of F.I.R.---Allegations levelled against accused were vague---Neither any receipt or writing had been obtained from the accused in token of having received the amount, nor witnesses were metioned in the F.I.R. In whose presence money was advanced to them---Accused, in earlier complaints, was not mentioned as recipient of the amount---F.IA. In enquiry had found the allegations false and fabricated--- Agreement executed between the parties showed the disputed amount far less than the one mentioned in the F.I.R.---Dispute between the parties prima facie appeared to be of a civil nature for which the proper forum was the Civil Court---Proceedings arising out of the F.I.R. Were ordered to be quashed in circumstances. [pp. 420, 421] B, D & E
(c) Criminal Procedure Code (V of 1898)----S. 561-A---High Court is not denuded of its powers to quash the proceedings on being satisfied from the available material that the prosecution has been launched for improper motive merely to harass the accused, or that continuance of the same would be an abuse of the process of the Court, or for other reasons which impel the Court to conclude that to allow the prosecution to continue would not be in the ends of justice. [p. 422] C Sardar Muhammad Latif Khan Khosa with M.D. Tahir for Petitioner. Ch. Nazir Muhammad for Respondent. Muhammad Iqbal Khichhi, A.A.-G. For the State.
' This is a petition for quashment of case F.I.R No, 75/91, dated 21-8-1991, P.S. Akbari Gate, Lahore under sections 406, 420 P.P.C. Registered on the report of Mst. Akhtar Hafeez against Mst. Shabana Choudhary and her husband Shahid Choudhary and others.
2. According to Mst. Akhtar Hafeez complainant she and her husband Muhammad Hafeez had been residing in Dubai and used to frequently visit Pakistan. She intended to start some business in Pakistan. She knew Dr. Shahid Choudhary, Proprietor, Sidra Travelling Agency, because she used to get tickets for Dubai from him. He induced her to join him in business promising that he would give a profit of Rs, 10,000 to her on the sale of each photostat machine. Consequently, in the month of February, 1988 she gave Rs, 5,00,000 to Dr. Shahid Choudhary. The latter persuaded her husband to invest money in his Travelling Agency on the assurance of paying handsome profit. Accepting the offer, her husband paid Rs,5 lacs to Dr. Shahid Choudhary. According to Mst. Akhtar Hafeez, she gave a further amount of Rs, one lac to Dr. Shahid Choudhary, on interest. After some time, Dr. Shahid Choudhary again approached him for lending more money to him for the purchase of a car for the Travelling Agency. Consequently, she gave an additional sum of Rs,6,27,000 to him but she later learnt that Dr. Shahid Choudhary had not purchased any car. She further alleged that Dr. Shahid Choudhary had entered into a bargain with her husband for the purchase of a Honda car for Rs,3,40,000 but paid Rs, one lac only and did not pay the balance amount. She further alleged that Dr. Shahid Choudhary had committed fraud with some other persons also in arranging Visas for them. According to her, Dr. Shahid Choudhary and his accomplices had fraudulently received Rs,57 lacs from them on different occasions. According to Mst. Hafeez Akhtar complainant, Naheed Kauser sister of Shahid Choudhary and his wife Shabana Choudhary had also been fraudulently receiving money from her on several occasions for investment in the Travelling Agency and purchase of vehicles which were misappropriated by them.
3. Quashment of the case is sought on the grounds that the registration of the case against the petitioner and her husband is mala fide. The allegations levelled in the F.I.R did not fall within the competence of the local police but the F.IA. Had already investigated into the matter and found the allegations to be false and fabricated. It is stated that previously criminal case on the same allegations involving the same amount was got registered at other police stations and on failing to get any relief from there, the case was got registered at P.S. Akbari Gate, Lahore showing her residence in that area and added in the list of the accused, the womenfolk of the family of Dr. Shahid Choudhary. Mst. Akhtar Hafeez had also made a complaint to the Ombudsman but later did not press it on the ground that she wanted to approach the Civil Court.
4. Learned AA.-G. And counsel for Mst. Akhtar Hafeez had contested the application mainly on the ground that Mst. Shabana Choudhary being an absconder in the case could not seek its quashment. In order to meet this objection, learned counsel for Mst. Shabana Choudhary undertook that she would put in appearance before the Court. Consequently, Mst. Shabana Choudhary appeared and surrendered herself before the Court (Civil Misr. No, 571/93).
5. Mst. Akhtar Hafeez had submitted an application to the Interior Minister, Government of Pakistan in November, 1989 for the registration of case against Dr. Shahid Choudhary and Azhar Choudhary, Managing Director and partner of Sidra Travelling Agency for fraudulently extorting Rs,57 lacs from her on one pretext or the other. In the said application she submitted that the amount in question was obtained by M/s. Dr. Shahid Choudhary and his brother Azhar Choudhary. In that application, there is no mention at all of Shabana Choudhary or any female member of the family of Dr. Shahid Choudhary. On 14-3-1989 Dr. Shahid Choudhary and Muhammad Hafeez, husband of the complainant entered into the agreement in the presence of Assistant Director, FIA, whereby it was agreed that the amount of Rs,6,70,000 shall be cleared by Dr. Shahid Choudhary on or before 30th April, 1989. This agreement was also signed by Sh. Muhammad Younis, Advocate, Lahore as well as Dr. Shahid Choudhary and Muhammad Hafeez. An Iqrarnama was also executed on 13-5-1989 between Muhammad Tariq and Muhammad Hafeez in favour of Dr. Shahid Choudhary that Dr. Shahid Choudhary had made a complete settlement of the accounts and hence they wanted that the inquiry by the F.IA. Be dropped. Later both the parties made the following statement: ' Inquiry No, 41/89 of A.C. Wing, Lahore.
"The matter has been resolved according to the agreement made between M/s. Shahid Choudhary, Muhammad Hafeez etc. Dated 28-12-1988 on receipt of outstanding amount in total.
Agreement dated 28-4-1989 stands cancelled with the ... ... Of both the parties."
' Dated 13-5-1989.
6. It would not be out of place to reproduce the report of Ali Qaswar Bokhary, Assistant Director FIA, Lahore who had enquired into the allegations levelled by Mst. Akhtar Hafeez against Dr. Shahid Choudhary: SUMMARY OF THE COMPLAINT ' The instant matter emanated from a complaint submitted by the abovementioned complainant to the effect that M/s. Shahid Choudhary and other Choudhary have fraudulently extorted Rs, 57 lacs from them on one pretext or the other. The complainant also gave the details of different properties, for which the payment is alleged to have been extorted, including purchase of Travel Agency, Stock of Air Tickets, purchase of Vehicles.
' FINDINGS ' The matter has been taken up accordingly. During the course of inquiry it revealed that an Iqrar Nama dated 28-12-1988 is on record which was effected between Shahid Choudhary and complainant Muhammad Hafeez, Tariq etc. According to this Iqrar Nama, it was decided that a total amount of Rs,8 lacs and 70 thousands only is against Shahid Choudhary. Furthermore it was decided that with effect from 28-12-1988 no other payment whatsoever is to be paid by Shahid Choudhary. The payment of Rs,8,70,000 was decided to be made through three Cheques Nos.
67873197, the sum of Rs,2 lacs dated 25-2-1989, Cheque No, 67869732 the sum of Rs, 8,70,000 and Cheque No,67869730 dated 25-6-1988 in the sum of Rs, 4 lacs respectively. Despite the fact that the matter was enquired, proved to be a case of civil nature, and no cheating on the part of Shahid Choudhary came forward because the complainant failed to justify the amount of Rs,57 lacs mentioned in their complaint. They had already entered into an agreement with Shahid Choudhary before the submission of the complaint to the Minister of Interior that only Rs,8,70,000 stands against Mr. Shahid Choudhary. However, keeping in view the instructions of the Minister of Interior, both the parties were called and issue has been resolved in the below mentioned fashion:
(1) A sum of Rs, 2 lacs was cleared by Mr. Shahid Choudhary on 14-31989 in lieu of Cheque No, 67869731.
(2) Remaining amount of Rs,6,70,000 was cleared on 13-5-1989, under proper receipts, signed by both the parties acknowledging the facts mentioned therein.
' Under the circumstances when the matter stands settled, no action by the Agency is warranted. I, therefore, recommend closure of the matter.
' Submitted for orders."
7. Learned counsel for the petitioner has also referred to letter No, DCZ/AC/Wing/31/89/4675 dated 20-5-1989 written by Qamar Uddin Khan, Director to the Directorate General, FIA, Islamabad. In the said letter Qamar Uddin Khan stated that Mr. All Qaswar Bokhary, Assistant Director, FIA, had made a thorough probe into the matter and concluded that the matter was of a civil nature and no cheating on the part of Shahid Choudhary was detected because the complainant failed to justify the amount of Rs, 57 lacs mentioned in their complaint. According to him, the outstanding amount of Rs,8,70,000 had been paid by Mr. Shahid Choudhary to the complainant and in view of the settlement no action was called for. The matter was also enquired into by Mr. Saddique Khalid, Assistant Director, FIA, Anti-Corruption Wing who vide his report dated 20-6-1989 opined that from the enquiry conducted it was proved that the matter was of civil nature and no cheating on the part of Dr. Shahid Choudhary had come on record. As already stated above, Mrs. Akhtar Hafeez withdrew her complaint on the above allegations on the ground that she wanted to approach the Civil Court.
8. On 7-6-1991 Mrs. Akhtar Hafeez showing her residence as 325 Raza Block, Allama Iqbal Town, Lahore submitted application to P.S. Allama Iqbal Town, Lahore alleging that Dr. Shahid Choudhary had fraudulently received Rs,57 lacs from her and her husband. In the said complaint no mention at all was made of Shabana Choudhary or any other female member of the family of Dr. Shahid Choudhary but in the case got registered by her at P.S. Akbari Gate on 21-8-1991 Shabana Choudhary and Naheed Kausar were also roped in with the allegation that they had also received Rs,16 lacs from her for investment in the Travelling Agency.
' Learned counsel for the complainant submits that since the challan against the petitioner has been submitted in the Court of Ilaqa Magistrate, Lahore she should apply to the trial Court under section 249-A, Cr.P.C.
9. Although it would have been more appropriate if the petitioner had approached the trial Court in the first instance but there is nothing to bar this Court from entertaining the application under sections 561-A, Cr.P.C. Directly.
' I am fortified in my view by a judgment of the Supreme Court titled Mian Munir Ahmad v. The State 1985 SCMR 257. In the said case it was held that tht powers of the trial Court under sections 249-A, Cr.P.C. And 265-K, Cr.P.C. Were co-extensive with similar powers of the High Court under section 561-A, Cr.P.C. And both could be resorted to.
10. The allegations levelled in the case against the petitioner and other accused are vague, in that, no specific dates are mentioned on which money was paid to them. No receipt or writing was obtained from them in token of having received the amount in question. In the column of date and time of occurrence only {{URDU TEXT}} is mentioned. No witnesses are mentioned in the F.I.R. In whose presence the money was advanced to the petitioner or her husband. In the earlier complaints there was no mention of Shabana Choudhary petitioner as recipient of the amount.
The matter was enquired into by F.I.A. And the allegations levelled by the petitioner were found to be false and fabricated. The Iqrar Nama executed between the parties shows that the disputed amount was far less than Rs,57 lacs as mentioned in the F.I.R.
11. It is well settled that this Court is not denuded of its powers to quash the proceedings if it is satisfied from the material produced before it that the prosecution has been launched for improper motive, merely to harass the accused, or that its continuance would be an abuse of the process of the Court or for other reasons which impel the Court to conclude that it would not be in the ends of justice to allow the prosecution to continue.
12. The allegations levelled by Mst. Akhtar Hafeez respondent prima facie show that the dispute between the parties is of a civil nature for which appropriate remedy would be to approach the Civil Court.
13. Resultantly, the petition is allowed and the proceedings arising out of case F.I.R. No, 75/91 dated 21-8-1991 P.S. Akbari Gate, Lahore are quashed. However, it will be open to the complainant to seek her remedy against the petitioner and other accused before the appropriate Civil Court.
Proceedings quashed. - PLD 1993 Lahore 421 Before Zia Mahmood Mina, J MUHAMMAD RAMZAN---Petitioner versus DISTRICT JUDGE, OKARA and others---Respondents W.P. No,11340 of 1991, decided on 22nd June, 1992.
West Pakistan Family Courts Act (XXXV of 1964)--- ----S. 14---Court Fees Act (VII of 1870), Sched.I, Art. 1---Dismissal of appeal on failure of petitioner to pay requisite court-fee on the memorandom of appeal-Validity-Petitioner's contention, that amount of court-fee payable on memorandum of appeal not having been specified in the order of Appellate Court, petitioner could not be deemed to have acted contumaciously or with mala fides so as to attract the penalty of dismissal of his appeal, had no force---Memorandum of appeal to be filed before the Appellate Court under West Pakistan Family Courts Act, 1964, would fall under Art. 1, Sched. I, Court Fees Act; court-fee in such cases was payable ad valorem on the subject- matter of the dispute---Value of subject-matter in dispute was clearly stated in the order passed by the Appellate Court in the presence of petitioner's counsel---Courtfee payable could, therefore, be calculated with a little diligence by referring to Art. 1 of Sched. I, Court Fees Act, 1870---Petitioner had no intention to pay the court-fee and he deliberately did not comply with the order of Appellate Court, therefor; he could not make any legitimate grievance against dismissal of his appeal on account of his failure to pay the court-fee for which he was allowed sufficient time and opportunity--Impugned order passed by Appellate Court, being valid did not call for interference.
[p. 422] A Mirza Daud Baig v. Additional District Judge, Gujranwala and others 1987 SCMR 1161 rel.
Hassan Ahmad Khan Kanwar for Petitioner.
' Petitioner through this Constitutional petition seeks to call in question an order of the learned District Judge, Okara, dated 12-9-1991 dismissing his appeal on the ground that he failed to pay requisite court-fee on the memorandum of appeal.
2. Facts necessary for the disposal of this petition, briefly stated, are that the petitioner's wife Mst.
Sakina Bibi and her minor son Jawar Rehman respondents Nos. 3 and 4 herein brought a suit for maintenance against the petitioner in the Family Court, Okara. Petitioner contested the suit on the ground, inter alia, that he had divorced the plaintiff Mst. Sakina Bibi 1-1/2 years back and that she had agreed before the Union Council not to claim any maintenance for the minor child.
3. Learned Judge Family Court after framing the necessary issues and recording the evidence adduced by the parties in support of their respective versions repelled the petitioner's contentions and decreed the suit holding that both the plaintiffs were entitled to maintenance allowance at the rate of Rs,200 and Rs, 150 per month respectively from the date of the institution of the suit which maintenance allowance they shall continue to receive in future also. It was, however, clarified that "the plaintiff No, 1 (Sakina Bibi) shall cease to have any such right of maintenance after the period of `Iddat' in case her marriage is legally dissolved and the plaintiff No, 2 (the minor) shall cease to have any such right of future maintenance on attaining the age of majority or when his custody legally falls into the hands of the defendant". This was vide judgment dated 28-7-1991.
4. Defendant/petitioner preferred an appeal against the judgment and decree of the trial Court.
The appeal was fixed before the District Judge for preliminary hearing on 3-9-1991, when he directed the petitioner "to pay the court-fees, ten times on the annual maintenance allowance, which comes to Rs,42,000 till 12-9-1991". It is an admitted position that the petitioner did not pay the court-fee in compliance with the aforementioned order of the learned District Judge with the result that his appeal was dismissed vide the impugned order dated 12-9-1991 on the short ground that he failed to pay the court-fee.
5. I have heard the learned counsel for the petitioner. It is not denied that in the instant case, court- fee on the memorandum of appeal was payable ad valorem on the subject-matter in dispute namely ten times the amount of annual maintenance allowance which came to Rs,42,000 as worked out by the learned District Judge. Learned counsel, however, contended that the District Judge should also have determined and specified the exact amount of court-fee required to be paid by the petitioner but this was not done and, therefore, the petitioner's failure to comply with the order of the District Judge could not be visited with the penalty of dismissal of his appeal.
Precise contention of the learned counsel was that the amount of court-fee payable on the memorandum of appeal not having been specified in the order of the learned District Judge, petitioner could not be said to have acted contumaciously or with mala fides so as to attract the penalty of dismissal of his appeal. I find no force in this contention. Learned counsel has not denied that a memorandum of appeal to be filed before the District Court under the West Pakistan Family Courts Act falls under Article 1 of Schedule I of the Court Fees Act and the court-fee in such cases is payable ad valorem on the subject-matter of the dispute. In fact, it is, so held by the Supreme Court of Pakistan in Mirza Daud Baig v. Additional District Judge, Gujranwala and others (1987 SCMR 1161), which case was relied upon by the learned District Judge in his order dated 3-9-1991. The value of the subject-matter in dispute was also clearly stated in the order passed by the learned District Judge in the presence of the petitioner's counsel. The court-fee payable could, therefore, well be ascertained/calculated with a little diligence by referring to Article 1 of Schedule 1 of the Court Fees Act as amended which prescribes the proper court-fee as "Seven-and-a half per centum on the amount or value of the subject-matter in dispute subject to a maximum of fifteen thousand rupees." In this view of the matter, there was no real difficulty or any insurmountable hurdle in the way of the petitioner if he genuinely and earnestly wanted to pay the court-fee and if at all the petitioner and/or his counsel felt any doubt or difficulty in computing/calculating the amount of court-fee, they could have approached the learned District Judge and requested him for specifying the exact amount of court-fee. I asked the learned counsel whether any such request or approach was made by the petitioner or his counsel. His reply quite frankly was in the negative.
In the circumstances, I am constrained to hold that the petitioner had no intention to pay the court-fee and he deliberately did not comply with the order of the learned District Judge dated 3- 9-1991. He cannot, therefore, make any legitimate grievance against the dismissal of his appeal on account of his failure to pay the court-fee for which he was allowed sufficient time and opportunity.
6. In view of what has been said above, the impugned order of the learned District Judge does not merit any interference moreso in writ jurisdiction. This petition is without any merit and the same is accordingly dismissed in limine.
Petition dismissed. PLD 1993 Lahore 423 Before Malik Muhammad Qayyum, J Mst. NASREEN IQBAL---Petitioner versus MEMBER (REVENUE), BOARD OF REVENUE, PUNJAB, LAHORE and another---Respondents W.P.
No,72 of 1993, heard on 3rd April, 1993.
(a) West Pakistan Land Revenue Rules, 1968--- ----R.19 (2)---Appointment of Lambardar---Rule of primogeniture---Applicability to a female aspirant for the office of Lambardar---Applicability of R.19 (2), West Pakistan Land Revenue Rules, 1968, was not confined to. Only those cases where a male was appointed as an heir of deceased Lambardar but the principle of primogeniture was applicable to cases of females also---Petitioner although a female was entitled to be appointed as Lambardar, being the nearest heir of the deceased Lambardar. [p. 427] A Mushtaq Hussain v. Mst. Naseem Akhtar etc. PLD 1982 SC 271; Ilahi Bakhsh v. Member (Revenue), Board of Revenue 1988 CLC 161 and Ch. Saghir Ali v. Member, Board of Revenue and others 1993 CLC 858 rel.
(b) West Pakistan Land Revenue Rules, 1968--- ----R.19(2)(d)---Constitution of Pakistan (1973), Art.25---Validity of R.19(2)(d), West Pakistan Land Revenue Rules, 1968, on the touchstone of Art.25(2) of the Constitution---Provision of R.19(c), West Pakistan Land Revenue Rules, 1968, provides that ordinarily no female should be appointed as a Lambardar---Article 25 of the Constitution provides in clear, categorical and unambiguous terms that all are equal, there would be no discrimination on the basis of sex alone and that State would make laws for the protection of women---Provision of R.19(2)(d), West Pakistan Land Revenue Rules, requiring that ordinarily no female should be appointed Lambardar, was clearly against the command of Art.25(2) of the Constitution for the only ground for non-appointment of a female as a Lambardar was her sex---In addition, post of Lambardar was no more ceremonial in nature for in addition to the commission which was payable to a Lambardar on various Government dues collected by him, grant of 100 Kanals of land was also attached to that post----Refusal to appoint a female as Lambardar merely on account of her sex would amount to depriving her of that property---Provision of R.19(2)(d), West Pakistan Land Revenue Rules, 1968, was thus, ultra vires of the Constitution and, therefore, of no legal effect---Order of Board of Revenue declining to appoint petitioner (female) as a Lambardar on the basis of R.19(2)(d), West Pakistan Land Revenue Rules, 1968, was also declared to be without lawful authority and of no legal effect.--[Vires of Iiegislation].
[pp. 427, 428, 429, 430] B, C, D & F Mushtaq Hussain v. Mst. Naseem Akhtar etc. PLD 1982 SC 271; Shrin Munir and others v. Government of Punjab through Secretary, Health, Lahore and another PLD 1990 SC 295; Mussarat Uzma Usmani and another v. Government of Punjab through Secretary, Health, Lahore and another PLD 1987 Lah. 178; Sally M. Reed v. Cecil R. Reed, Administrator etc. (1971) 404 US 71; Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416 and Ch. Asghar Ali v.
Member, Board of Revenue and others 1993 CLC 858 ref.
(c) West Pakistan Land Revenue Rules, 1968--- ----R. 19(2)(d)---Constitution of Pakistan (1973), Art.199---Lambardar, appointment of--- Constitutional jurisdiction, exercise of---Selection of Lambardar is the executive responsibility of the Revenue Officers with the Board of Revenue at the apex---Error of law in the judgment of Board of Revenue, could be corrected by the High Court in its Constitutional jurisdiction---Constitutional jurisdiction, could thus, be invoked in a matter of selection of Lambardar. [p. 430] E Haji Noorwar Jan v. Senior Member, Board of Revenue, N.-W.F.P., Peshawar and 4 others PLD 1991 SC 531 fol. Syed Jamshed Ali Shah for Petitioner.
Nemo for Respondent No,1.
Rafiq Khan Chauhan for Respondent No,2.
A. Basit and Mrs. Asma Jahangir : Amicus curiae. Date of hearing: 3rd April, 1993.
' This petition under Article 199 of the Constitution of Islamic Repulic of Pakistan, 1973, relates to appointment of a Lambardar of Chak No,471/GB, Tehsil Samundri, District Faisalabad. This post fell vacant on account of death of permanent Lambardar of the village viz. Muhammad Bakhsh, the father of the petitioner, who died on 9th August, 1985, leaving behind him only four daughters of which Mst. Nasreen Iqbal, the petitioner herein is the eldest.
2. Twenty-one persons including the petitioner applied for appointment to the aforesaid post.
Initially, on 28th July, 1986, Shafaat Ali, respondent No,2, was appointed as the Lambardar for this estate by the Assistant Commissioner/Collector, Jaranwala. This order was challenged by the petitioner in appeal before the Commissioner and then in revision before the Member, Board of Revenue, which were dismissed on 8th December, 1986 and 4th February, 1987, respectively. The petitioner thereupon applied for review of the aforesaid order. It appears that two other candidates, namely, Muhammad Arif and Shafaat Ali had also filed revisions before the Member, Board of Revenue. The review application of the petitioner and the revisions of Muhammad Arif and Shafaat Ali were heard together by the Member, Board of Revenue, who vide his order dated 8th October, 1989 accepted the same, on the ground that the Assistant Commissioner/Collector, Jaranwala, had no jurisdiction to appoint Lambardar for Chak No, 471/CB, which fell in Tehsil Samundri. This order was challenged by respondent No, 2 by filing Writ Petition No, 250/90 which was admitted to regular hearing, but has since been disposed of as having become infructuous.
3. In the post remand proceedings, the Deputy Commissioner/District Collector, Faisalabad, proceeded to appoint the petitioner as Lambardar on 4th September, 1990. This order was challenged by respondent No, 2 by filing an appeal, which was dismissed by the Commissioner, Faisalabad, on 11th March, 1991. Aggrieved by that order, respondent No,2, went to the Board of Revenue by filing a revision petition, which was accepted primarily on the ground that according to rule 19 (2) of the Punjab Land Revenue Rules, 1968 a female cannot ordinarily be appointed as Lambardar. This order of the Member, Board of Revenue, has been assailed by the petitioner by filing this petition.
4. In support of this petition, Syed Jamshed Ali, the learned counsel for the petitioner raised the following contentions:-
(i) That the learned Member, Board of Revenue having himself held that the appointment of the Lambardar was to be made according to rule 19(2) of the Punjab Land Revenue Rules, 1968, has acted without any lawful authority in ignoring the rule of primogeniture, according to which the petitioner was entitled to be appointed Lambardar in place of her father. Reliance has been placed on Mushtaq Hussain v. Mst. Naseem Akhtar etc. (PLD 1982 SC 271); Ilahi Bakhsh v. Member (Revenue), Board of Revenue (1988 CLC 161) and Ch. Saghir Ali v. Member, Board of Revenue and others (1993 CLC 858).
(ii) That even rule 19(2) of the Punjab Land Revenue Act, 1967, which provides that a female should not ordinarily be appointed as Lambardar, is violative of Article 25 (2) of the Constitution of Islamic Republic of Pakistan, which prohibits discrimination on the ground of sex alone.
(iii) That the order passed by the Member, Board of Revenue, is arbitrary and discriminatory in nature, inasmuch as the Member, Board of Revenue, has himself, in another matter, held that a female could be validly appointed as a Lambardar under the Rules.
5. Learned counsel appearing on behalf of respondent No,2 has been heard in reply. He has defended the impugned order of the Member, Board of Revenue, by contending that respondent No, 2 being a female could not have been appointed as Lambardar in preference to respondent No,2.
6. There is no dispute between the parties on facts. It stands admitted that Muhammad Bakhsh, the father of the petitioner was the permanent Lambardar of Chak No, 471/GB, Tehsil Samundri, District Faisalabad, and it was on account of his death that the post fell vacant on 9th August, 1985. It is also not denied that the petitioner is the eldest daughter of Muhammad Bakhsh.
7. In the impugned order, the Member, Board of Revenue, has himself observed, and rightly so, that as appointment in question was that of the successor Lambardar, it was to be made in accordance with rule 19 of Punjab Land Revenue Rules, 1968. Sub-rule (1) relates to those estates, which are owned chiefly or altogether by the Government and is, therefore, not applicable.
According to sub-rule (2) of rule 19, in other estates, primarily it is a right of the nearest eligible heir according to the rules of primogeniture to be appointed as Lambardar against a vacancy which had occurred due to the death of his predecessor. The rules of primogeniture also apply even in cases where a female is to be appointed. No detailed discussion on this subject need be made in view of the pronouncement of this Court in Ch. Saghir Ali v. Member, Board of Revenue and others (1993 CLC 858), wherein after considering in detairthe various aspects of the matter including the definition of 'primogeniture', it was opined that the applicability of rule 19(2) is not confined to only cases where a male is appointed as an heir of the deceased Lambardar but this principle is applicable to the cases of a female also. Same view was taken in Ilahi Baksh v. Member (Revenue), Board of Revenue (1988 CLC 161). The appointment of a female as Lambardar on the rule of primogeniture was approved by the Supreme Court in Mushtaq Hussain v. Mst. Naeem Akhtar etc. (PLD 1982 SC 271). It follows, therefore, the petitioner was clearly entitled to be appointed as Lambardar, being the nearest heir of the deceased.
8. It is, however, to be noted that clause (d) of sub-rule (2) of Rule 19 provides that ordinarily no female should be appointed as Lambardar. The relevant clause reads as under:-- "(d) A female is not ordinarily eligible for appointment to the office of a headman, but may be appointed, when she is the sole owner of the estate, for which the appointment has to be made, or, for special reasons."
9. The learned counsel for the petitioner has strenuously argued that this sub-rule is violative of the fundamental right enshrined in Article 25 of Constitution of Islamic Republic of Pakistan, 1973, is to the following effect:- "25. Equality of citizens.---(1) All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex alone.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children."
10. While construing this Article, the first thing which is significant is that though sub-Article 1 emphatically forbids discrimination and guarantees equality before law, yet by a specific mandate in sub-Article (2), discrimination on the ground of sex alone is forbidden. It is also to be noticed that neither in the Constitution of Islamic Republic of Pakistan, 1956, nor in the 1962 Constitution, there was a specific provision in the nature of sub-Article (2) which for the first time was enacted in the Interim Constitution of 1972 and was retained in the Constitution of 1973. This reflects the anxiety of the Constitution-makers to ensure equal treatment to woman and their abhorence against discrimination on the basis of sex.
11. Sub-Article (2) of the Constitution of Islamic Republic of Pakistan, 1973, fell for consideration before the Supreme Court of Pakistan in Shrin Munir and others v. Government of Punjab through Secretary, Health, Lahore and another (PLD 1990 SC 295), wherein Shafi-ur-Rehman, J. Speaking for the Court observed:- "Clause (2) of Article 25 prohibits distinction on the basis of sex alone. However, the very next clause
(3) controls the rest of Article 25 by providing that "nothing in this Article shall prevent the State from enacting any special provision for the protection of women and children". It implies, therefore, that while the difference on the basis of sex can be created and maintained, it shall be done only in those cases where it operates favourably as a protective measure for and not against women and children. The field of prohibition, of adopting sex, as a criteria for making a distinction, is thereby reduced to only that category wherein sex is adopted as a standard for discriminating against females generally and against males only if it is not as a measure protective of females.
Discrimination against a group or an individual implies making an adverse distinction with regard to same benefit, advantage or facility. All-pervasive nature of this Constitutional provision is self- evident."
' It is also useful to refer to the judgment of this Court in Mussarat Uzma Usmani and another v.
Government of Punjab through Secretary, Health, Lahore and another (PLD 1987 Lahore 178), which was approved by the Supreme Court of Pakistan in Shrin Munir's case (supra). In the case before this Court, Mr. Justice A.S. Salam (as his Lordship then was) in his illuminatory judgment on the subject made very strong observations in the following words:- "Article 25 of 1973 Constitution is clear, categorical and unambiguous altogether. It lays down that all are equal, there shall be no discrimination on the basis of sex alone and that the State may make laws for the protection of women. All are equal, man and woman, neither man nor woman shall be discriminated against, laws may be made for protection of women -- not against them."
12. Viewed from this angle, it is but obvious that clause (d) of sub-rule (19) clearly offends against the command of sub-Article (2) of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. On its plain wording, the only ground for non-appointment of a female as a Lambardar is her sex.
' The discrimination is so obvious that it calls for no further comment except for notice may be taken of the argument of the learned counsel for the respondent that clause (d) is not violative of sub-Article (2) of Article 25 of the Constitution, as it does not completely forbid the appointment of female Lambardar, but merely provides that ordinarily a female should not be appointed. This argument, on the face of it, is fallacious as the clause in question certainly places females at a disadvantage.
13. In Sally M. Reed v. Cecil R. Reed, Administrator etc. (1971) 404 US 71), the provisions of Idaho Probate Code, which provided for giving mandatory preference to male applicant over female applicants while being appointed as descendants of estates was challenged as being violative of the equality clause in the United States Constitution. While striking down this provision, the United States Supreme Court observed that as it gave mandatory preference to members of a sex over members of the others, it was hit by equal protection clause of the 14th Amendment of United States Constitution. It is interesting to notice that at the relevant time, there was no specific provision in the United States Constitution, prohibiting discrimination on the ground of sex alone, though such a provision was later on introduced by 27th Amendment to the Constitution.
14. Learned counsel for the petitioner has pointed out and rightly so, that this rule though framed in 1968 is a mere re-production of the Punjab Land. Revenue Rules, 1910, which was framed under the Punjab Land Revenue Act, 1887. It is to be noted that at that time, there was no Constitutional provision forbidding discrimination on the basis of sex. Moreover, the general rule applicable at that time was the customary law which even deprived the females of their right of inheritance.
Unfortunately, while reframing the rules in 1968, no effort was made by the rules making authority to bring the same in accord with the changed socio-economic conditions of the society. If there is no prohibition, and indeed there is none, for a female to occupy various high offices and to work and perform functions in different fields, it is not understandable as to why she should not ordinarily be appointed as a Lambardar.
15. As has been pointed out by learned counsel for the petitioner, the post of a Lambardar is no more ceremonial in nature as in addition to the commission which is payable to a Lambardar on the various Government dues collected by him, grant of 100 Kanals of land is also attached to that post. The refusal to appoint a female as Lambardar merely on account of her sex would amount to deprivation of that property. In the face of clear provisions of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, such injustice cannot be allowed to prevail.
16. As has been observed by the Supreme Court in Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416), the principles of policy as enumerated in Chapter 2 of Part II of the Constitution though not enforceable per se by the Courts, have to be kept in mind and given due regard while interpreting the Constitution and the law. Article 34 of the Constitution provides that "steps shall be taken to ensure full participation of women in all spheres of national life".
17. It is also interesting to notice that the Member, Board of Revenue, has himself in another case which related to appointment of Lambardar of Chak No, 180/EG, Tehsil and District Vehari (R.O.R. No, 895 of 1991) on 6th June, 1992, had upheld the appointment of female as a Lambardar by inter alia observing that the right of a female is fully guaranteed under Article 25(2) of the Constitution of Islamic Republic of Pakistan, 1973, holding that there shall be no discrimination on the basis of sex alone. This order passed by the Member, Board of Revenue, was upheld by this Court in Ch. Asghar Ali v. Member, Board of Revenue and others (1993 CLC 858).
18. Learned counsel for respondent No,2 has objected to the maintainability of this petition arguing that Article 199 of the Constitution cannot be invoked in a matter of Lambardari. This argument of the learned counsel stands repelled by the pronouncement of the Supreme Court in Haji Noorwar Jan v. Senior Member, Board of Revenue, N.-W.F.P., Peshawar and 4 others (PLD 1991 SC 531).
' For the reasons aforesaid, this petition is allowed, clause (d) of sub-rule (2) of rule 19 of the Punjab Land Revenue Rules, 1968, is held to be ultra vires the Constitution and is, therefore, of no legal effect and the order of the Member, Board of Revenue dated 13th December, 1992 is declared to be without lawful authority with the result that the order of the Collector dated 4th September, 1990 and that of the Commissioner dated 11th March, 1991 stand restored.
' There shall be no orders as to costs.