' Judgment-debtors have filed an application under rule 176 of Sindh Chief Court Rules being C.M.A.
No,567 of 2001 wherein it has been prayed that as the National Insurance Corporation was the Insurance company which had insured the vehicles of the judgment-debtor No,1, as such they are liable to pay the decretal amount. Since the said application is not fixed today, by consent the application is taken up and heard:
2. Major (Recd.) Abdul Rauf, Advocate has stated at the bar that the application under rule 176 of Sindh Chief Court Rules has been moved on the basis of and under his right created in consequence of the judgment delivered in the present in which it has been stated:-- " Should the defendants Nos.1 and 2 wish to claim Indemnity from the defendant No,3 under a separate contract of insurance they could file an application under rule 176 of Sindh Chief Court Rules, which proposition the learned counsel for defendants Nos.1 and 2 accepts...."
' According to him, therefore, this application could be moved in the present Execution Application and this Court would have the authority, therefore, 4o pass an order directing the insurance company to make the payment of the decretal amount. According to him, they have already given the premium by insuring the vehicles in question and other vehicles belonging to NLC, in the sum of Rs,33,423,349.
3. A perusal of the said judgment passed by a single Judge categorically states: "....Consequently, the suit is disposed of against the defendant No,3 as well."
In suit the plaintiffs had prayed for a judgment and decree against the defendants Nos.1, 2 and 3 jointly and or severally. The judgment, however, as is evident, has hot decreed the suit against the defendant No,3, the Insurance Company, namely National Insurance Corporation. The decree also categorically states: "....Be that as it may, insofar as this suit is concerned on the basis of admission by defendants Nos.1 and 2, who are primarily liable for this claim in this suit, this suit is decreed against the defendants Nos.1 and 2 as prayed...."
' Ex facie the decree is only against the defendants Nos.1 and 2 and that no doubt leave has been given to the said defendants Nos.1 and 2 to proceed against the insurance company but the executing Court shall have no authority or jurisdiction to pass an order directing the defendant No,3 to make the payments. It is a well-settled principle of law that it is not open to the executing Court to go behind a decree or re-determine the liabilities of the parties. I am supported in this by the judgment in the case of Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Limited and 2 others (1994 SCM R 22). It is argued by Mr. Abdul Rauf that in the event the decree is coram non judice, the order shall be void and not executable. It is further stated by Mr. Abdul Rauf that the judgment in all the 16 suits were passed and that the judgment was passed jointly and/or severally and not as shown in the present judgment.
4. Presently, the executing Court is sitting only to execute an existing decree and if any error is on the face of it or otherwise if the order was void as passed without jurisdiction appropriate remedies were available to the said defendants to have the judgment modified. Admittedly, no application for rectification or reviewing the judgment was made. Admittedly, no appeal has been filed against the said judgment or decree. It is the case of Mr. Abdul Rauf that as the order was coram non judice, he was not bound to file any appeal and the executing Court itself can ignore the said order.
He states that as the judgment was passed coram non judice, it is upon the Court to determine and refuse to execute the decree.
5. Mr. Abdul Rauf has also referred to the case of Mst. Sakina and 3 others v. Messrs National Logistic Cell and 2 others (1995 M LD 633) in which the decree that was passed was against the defendants jointly and or severally. The question was taken up in Execution No,44 of 1994 a copy of order passed therein has been produced in Court by Mr. Abdul Rauf and states that in view of this order a similar order is liable to be passed. Mr. Abdul Rauf refers to the case of Multiline Associates v. Ardeshir Cowasjee and others (1995 SCM R 362) in which it has been held that a judgment of an equal Bench on the same point is binding upon the second Bench and if a contrary view is to be taken, it is to be done by a larger Bench. The said case was in, eference to petitions in which the order was passed by a Division Bench and it was held that the order of a Division Bench is liable to be followed by another Division Bench of the same Court. Though this case may be distinguishable in the present case but even if it is taken to be binding and that an order of a Single Judge of the same Court be treated to be binding on the other Single Judge, the order in Execution No,44 of 1994 in fact does not support the contention of Mr. Abdul Rauf. The relevant portion that has been read out by Mr. Abdul Rauf is reproduced as under:-- "6. At the hearing there was no contest with regard to the point that no appeal from the judgment and decree was preferred by any of the parties with the admitted position in law that the judgment and decree has attained finality. The case convassed by J/D No,3 at the bar appears to be that the liability of the Insurance Company is confined to the payment of Rs,20,000 only in terms of section 95(2)(a) of the Motor Vehicles {{PAGE BLUR}} ' Logistic Cell and others (C.P. No,87 of 1998), the entire law has been placed and discussed and it has been held that the individuals are bound by the Army Act. He refers to the following:-- "The plain reading of the above provisions of law clearly shows that the present petition before this forum is coram non judice.
' In the case of Force Commander, Airport Security Force, Karachi and others v. Haji Muhammad Rishid and another (1996 SCM R 1614), it was observed by the apex Court at page 1629 as under:-- ' it may be stated that subsection (1) of section 5 empowers the Federal Government to apply all or any provisions of the Army Act to any force raised and maintained in Pakistan under the authority of the Federal Government or a Provincial Government, whereas subsection (2) thereof lays down that on such notification being made any provisions of the Army Act so applied shall have effect in respect of persons belonging to any such force as they have effect in respect of persons subject to the Army Act holding in the Pakistan Army the same rank as or equivalent to that which the aforesaid persons hold for the time being in the said force and shall have effect in respect of persons employed by, or are in the service of, or are followers of, or accompany any portion of any such force as they have effect in respect of person subject to the Army Act under clause (c) of subsection (1) of section 2. It may also be pointed out that subsection (3) provides that while any of the provisions of the Army Act applies to any such force, the Federal Government may, by notification, direct by what authority any jurisdiction, powers or duties incidental to the operation of these provisions shall be exercised or performed in resepct of that force any may suspend the operation of any other enactment for the time being applicable to that force.'"
' In the case of Dr. Aon Muhammad Khan v. Lt.-Gen. (Retd.) Saeed Qadir and others (PLD 1987 SC 490), it was observed at page 493 as under:-- "(xiii) 1978-85. Chief Executive and then, from 1981 onward, Chairman, National Logistics Cell. This appointment was held by the answering respondent in addition to his duties as Q.M.G. The answering respondent created the National Logistics Cell (NLC). He did so in pursuance of a directive received by him on 23-7-1978. By 6-8-1978 the action plan prepared by the answering respondent was approved by the Federal Cabinet. The NLC successfully undertook the re- organisation of Karachi Port so as to clear 2 million tons of wheat through this period in between October, 1978 and April, 1979, the NLC moved this wheat for Karachi to the remotest corners of the country. During the last 7 years the NLC has organised the Karachi Port, built and rehabilitated hundreds of miles of roads, undertaken rapid handling of rice crop exports, built 150,000 tons of rice storage facilities, built another 150,000 tons of fertilizer storage facilities, transported fertilizer to the remotest corners of the country, moved crude oil from the oilfields throughout the country and operated and maintained the largest transport fleet in Pakistan. The NLC has also created large engineering workshop facilities; re-organized the Lahore Dry Port and established facilities in the country for major repairs of traction motor of locomotives for the Pakistan Railways."
' Again in the same citation at page 500, the word 'logistics' has been defined as under:-- '"The word 'logistics' according to the Chambers' Twentieth Century Dictionary means 'the art of movement and supply of troops'. This necessarily involved the management, operation and control of mechanically propelled vehicle. Therefore, logistics apparently is an allied field with the automobile engineering."
' In an unreported C.P. No:2502 of 1995, the legal status of National Logistic Cell (NLC) was determined by a Division Bench of this Court and it was observed that the entire set-up of National Logistic Cell (NLC) is controlled by Army Officers. The Establishment is neither commercial nor industrial. The civil manpower working in National Logistic Cell (NLC) is incidentally connected with the Armed Forces."
' In the case of Brigade Commander Headquarters Field Command, NLC Karachi v. The State (1996 M LD 469), it was observed that the trial of the Army Personnel could only be held by the Military Court.
' In the case of Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others (PLD 19% Supreme Court 632), it was observed that under Article 199(3), the jurisdiction of High Court is barred and it cannot superintend the affairs of the Armed Forces.
' In the case of Sh. Liaqat Hussain and others v. Federation of Pakistan and others (PLD 1999 SC 504), it was observed that {{PAGE BLUR}} {{PAGE BLUR}} ' conducted was concluded in a lawful manner exonerating the said defendant from the allegations. Only under such circumstances ouster of jurisdiction is completed. No material was placed to show that the jurisdiction of this Court is ousted in the aforesaid manner. I am fortified in my view by the rule laid down by the Honourable Supreme Court in the case Zafarul Ahsan v.
Republic of Pakistan (PLD 1960 SC 113). Section 9 of the C.P.C., indeed, bars a suit which is even impliedly barred. There is no element of impliedness in this case. In the case of Zafarul Ahsan (supra) the appellant was retired from service for misconduct by the President under sub-clause
(b) of clause (5) to Article 6 of the Laws (Continuance in Force) Order, 1958 against which the appellant moved High Court of West Pakistan through writ petition against the President's order which was dismissed on the ground that the Court had no jurisdiction to consider the merits of the case. The appeal was dismissed with no order as to cost but following observation was made by the Full Bench of Honourable Supreme Court while defining as to how the jurisdiction of Court is ousted:-- ".................... If a statute provides that an order made by an authority action under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Court is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority. If an appellate authority is provided by the statute the omissions or irregularity alleged will be a matter for that authority, and not, as rightly observed by the High Court, for a Court of law.
Of course where the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken though it purports to have been taken under the statute, the order will not, in accordance with a long line of decisions in England and in this Sub-Continent, be treated as an order under the statute...."
7. The objection to the maintainability of these suits were raised for the first time in these proceedings by the learned counsel appearing for-the National Logistic Cell. In previous suits which were decreed against the same defendant and wherein the same counsel was appearing, such objections were not raised.
' Therefore, I have dealt in detail with the respective submission of both the learned counsel. Mr. Nasir Maqsood has drawn my attention to the case Rukhsana Parveen Nazir v. National Logistic Cell through Commander and 2 others (1995 M LD 633) and Mai Nooran v. National Logistic Cell, Ministry of Defence, Government of Pakistan through its Commander and 2 others (1995 CLC 1969). In all the said three cases, judgments/decrees were passed against one of the same defendant, now, the defendant No,1 in the present suits. I am told that the appeals filed against these reported cases were also rejected by the Division Benches of this Court. Even in the case Syed Ghaffar Hussain and 3 others v. The Commander (Commanding Officer), Headquarters National Logistic Cell, Karachi and 3 others (1994 M LD 2010), the Commander/respondent himself appeared but he did not raise any objection to the maintainability of that suit...."
7. In a case being Execution No,153 of 2000 filed by the same Gul Muhammad Mir Bahar (being an execution of the judgment of Gul Muhammad Mir Bahar v. National Logistic Cell and 2 others (1999 CLC 2032) referred hereinabove it has been ordered: " In this view of the matter execution application is allowed and it is ordered that the assets of the judgment-debtor as mentioned in the schedule of the properties annexed with this execution application be attached by the Nazir of this Court and thereafter proceedings for sale of the said articles be carried out. The sale proceeds be deposited in Court and same be used in the first instance for the satisfaction of the decretal amount. Orders accordingly. Nazir may seek assistance of the Law Enforcement Agency if felt necessary under the circumstances."
' In another case being Execution No,165 of 2000 filed by one Aisha Bibi against NLC, the following order was passed:-- "Judgment and decree was passed on 20-11-1998, execution was filed on 13-1-2000, which apparently was served on the judgment-debtor No, 1, against whom it is sought to be executed, service was effected on 3-1-2001 but no objection appears to have been filed as till todate. The execution is allowed. Nazir is accordingly directed to attach the property mentioned in the schedule attached to the execution application, on the pointation of the decree-holder. Nazir may seek assistance of the law enforcement agency if felt necessary under the circumstances."
8. In view of the above, the objections taken by Mr. Abdul Rauf {{PAGE BLUR}} {{PAGE BLUR}} ' condition to the police in Police Station Ghoriwala is to the efeot that on 28-12-1998 at about 10-15 a.m. He alongwith Hamayun son of Mali Khan, his co-villager visited the shop of a barber situated near the Petrol Pump of Mohammad Noor Khan for the purpose of shave, however, due to non- availability of space he came out of the shop and was standing in front of the shop of a tailor when in the meanwhile accused Najibullah, duly armed with a pistol; came there and started naming him. At the same time he fired at him with the pistol with which he was hit on the thigh etc. And got injured. The accused after commission of the offence decamped from the spot.
' The complainant disclosed no previous enmity of the parties behind the occurrence in his report.
' The occurrence was stated .To have also witnessed by the said Hamayun.
6. Sardar Nawaz, A.S.-I. (P.W.4) recorded the report of the complainant in the police station vide F.I.R., Exp. PA, prepared the injury-sheet of the complainant, Exh.PL/1, sent the injured to the hospital for treatment and himself proceeded to the spot in the company of P.W. Hamayun, where at his pointation he prepared the site-plan, Exh.PB. During spot inspection, the Investigating Officer took into possession blood-stained earth from the place of injured, a spent bullet of .30 bore and two empties of .30 bore, freshly discharged vide recovery memo. Exh. PD. He also took into possession blood-stained Shalwar and shirt of the injured, sent by the doctor from the hospital, through recovery memo. Exh. PD. He searched the accused but he was not available and then applied for proceedings under section 204, Cr.P.C. Against him. The blood-stained articles were sent to the F.S.L.
7. Dr. Malik Niaz, P.W.1, examined the complainant Bal Nawaz on 28-12-1998 at 11-30 a.m. And found two fire-arm entry wounds on the person of the complainant i,e, on left thigh laterally and on back of spine at the level of 4th lumber with exit wounds at posterio-medially and on left lumber region anterio-laterally.
8. The accused was arrested in the case on 3-11-1999 and on 6-11-1999, P.W.5 Bashir Ahmad, S.H.O., Police Station Ghoriwala submitted supplementary challan against him.
9. At the trial the prosecution examined as many as 10 witnesses to prove its case against the appellant. Except Bal Nawaz, who recorded his statement as P.W.8, the rest of the PWs, who were formal police witnesses, recorded their statements to the extent of their involvement with the investigation and other proceedings of the case.
10. The learned trial Judge after conclusion of the trial awarded conviction and sentences tp the appellant as stated in the first paragraph of this judgment.
11. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.
12. As is evident from the contents of the F.I.R, the complainant has simply stated that due to non- availability of sufficient space in the shop of the barber, he came out of the shop and in the meanwhile accused Najibullah came there duly armed, started altercation and consequently fired at him. He has never said that either the accused/appellant was also present in the shop of the barber or that an altercation had also taken place inside the shop of the barber. But at the trial, he has completely changed his stance by saying that in the shop of the barber he was sitting when the accused came there and used provocatory words on which he altercated with him and then for his own security he left the shop withoug getting share and came out of the shop. Such an improvement in the circumstances of the case, when the prosecution has not produced any other witness to the occurrence, is material, and could be considered to be an afterthought to provide justification for a motive, as the story narrated in the F.I.R. Clearly suggests that there was no motive for the accused/appellant to attempt at the life of the complainant.
13. The complainant though has departed in his statement from the version given in the F.I.R, yet has left the cause of said altercation more mysterious as for what reson the altercation between them had started in the barber shop in abence of any previous between them. No witness in support of this assertion has been produced either from the shop of the barber at least to prove the veracity of the complainant to the later on developed cause of enmity or through the accompanied witness with the complainant, whose name has been duly mentioned in the F.I.R. As eye-witness. It is also interesting to note that in the F.I.R., the complainant had described Hamayun as his co-villager, but at the trial stated that said Hamayun is his minor cousin. The learned counsel for the prosecution abandoned this witness on account of his minority and Ilso as unnecessary witness. He was very much necessary and if was a minor even then he should have been produced before the learned trial Court for making a proper observation as to whether said Hamayun was so minor that his statement could not be accepted in evidence. From the evidence on record it is, however, clear that Hamayun was not of such a tender age. As on one hand it was he on whose pointation the Investigating Officer prepared the site-plan in the case, but on the other hand it was who he, who thumb-impressed the recovery memos. As a marginal witness.
14. Another important aspect of the case is that thE accused/appellant was admittedly of a young age at the time of occurrence whereas the complainant was over 40 years of age. As stated above, the complainant not only changed his version in the F.I.R. About taking place of an altercation inside the shop of the barber, but also {{PAGE BLUR}} {{PAGE BLUR}} were entitled to 7/24 share in the suit-land being the sister and brother of said Sardara. A written statement was filed inter alia objecting that the suit is barred by time. It may be stated here that in reply to para.2 where the pedigree-table of the parties was drawn up only ignorance was expressed. Issues were framed. Evidence of the parties was recorded. The suit was dismissed on 10- 2-1981.
' A first appeal filed by the petitioners was allowed and the case was remanded by the learned Additional District Judge on 25-9-1983. After the remand the suit was again dismissed on 16-9- 1984. However, in appeal it was again remanded on 11-2-1986. After this remand the learned trial Court traced the devolution of the said estate of Sardara and concluded that the plaintiffs in the suit were entitled to inherit 585/960 share in the suit-land. The suit was accordingly decreed vide judgment and decree dated 1-4-1987. The respondents filed a first appeal which was heard by a learned Additional District Judge, Gujrat. The learned Additional District Judge was not able to find anything wrong with the determination of the said share of the plaintiffs in the suit-land. He, however, found that the suit is not maintainable without seeking relief of possession and that it is barred by time. The appeal was accordingly allowed on 26-3-1990 and the suit was dismissed.
2. Learned counsel for the petitioners contends that it has been held as a fact and not question by the learned Additional District Judge that the petitioners were found to be co-sharers in the suit- land. This being so, neither the form of the suit could be questioned nor could the suit be held to be barred by time. Reliance is placed on the case Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) and Anwar Muhammad and others v. Sharif Din and others (1983 SCM R 626).
No one has turned up for the respondents who have been served and are represented by Mr. Abdul Majid Khan, Advocate whose name stands listed in the cause list for today, despite calls. They are proceeded against ex parte.
3. I have gone through the copies of the records, with the assistance of the learned counsel. The facts stated by me above are borne out from the same. A bare perusal of the impugned judgment of the learned Additional District Judge would show that he has not cased to explain as to how the suit was barred by time when admittedly she was a sister of Sardara and as such entitled to inherit alongwith her brother, the second original plaintiff in the estate of Sardara to the residue left after satisfying the share of Mst. Bibi daughter of Sardara. The learned Additional District Judge also lost sight of the fact that because of failure of the Revenue Authorities to attest the mutation upon opening of succession by the marriage of Bibi, the further devolution resulting from the death of another brother of Sardara could not be incorporated in the Revenue Records. The learned trial Court on the basis of admitted entries in the pedigree drawn in the plaint has proceeded to trace the course of said devolution and correctly worked out the shares of the parties. These were not even challenged before the learned Additional District Judge. In this view of the matter, the plaintiffs in the suit were Muslim Law co-heirs and as such co-sharers in the suit-land. They were not bound to sue for possession as possession of one co-owner enures for the benefit of, all the co- owners. This is the ratio of the judgment relied upon by the learned counsel. I, therefore, hold that the learned Additional District Judge has acted without lawful authority for non-suiting the petitioner on the grounds stated in the impugned judgment. The suit was neither barred by time nor was there anything wrong with its form. This civil revision is accordingly allowed. The judgments and decrees dated 26-3-1990 of the learned Additional District Judge, Gujrat is set aside and the one passed by the learned trial Court on 1-4-1987 is restored leaving the parties to bear their own costs.