Summary: (a) Civil Procedure Code (V of 1908)--- ----S. 151 & O. XLI, R. 33---Financial Institutions (Recovery of Finances ) Ordinance ( XLVI of 2001 ), Ss. 7(4) & 9---Specific Relief Act (I of 1897), Ss. 42 & 54---Suit for declaration, cancellation, damages and permanent injunction---Right of party---Remedy not granted by the Court---Act(s) of the Subordinate Court(s) not granting relief / right to party---Inherent/ex delicto justitiae powers of High/Appellate Court---Scope---Owner of residential property, through original papers, furnished surety in a criminal case on behalf of two accused persons pursuant to their bail order, however, later he did not receive any final outcome on his application for release of surety, i.e. return of his original property papers---Then, owner received a notice from a non-banking finance leasing company ('Leasing Company') stating that the property was mortgaged to them and they intended to auction the same---Then the owner filed a civil suit for a declaration, etc., before the High Court in its Original Civil Jurisdiction, inter alia, seeking to restraint Leasing Company from auction / sale of the property but the Single Judge returned the plaint, with an observation to approach the court of proper jurisdiction---Then the owner approached the Banking Court and filed suit seeking redressal of his grievance, however, when the matter proceeded to the final arguments the Judge-Banking Court, while holding that the Banking Court did not have jurisdiction to adjudicate the matter, returned the plaint with the direction to file the same before the (civil) court of competent jurisdiction---Owner/Appellant approached Appellate / High Court---Validity---Banking Court, undoubtedly, has authority to decide its own jurisdiction as provided in S. 7(4) of the Financial Institutions (Recovery of Finances ) Ordinance, 2001 ('the Ordinance 2001') being a special law; the jurisdiction of which (Banking Court) is only invoked when there is dispute between a financial institution and a customer, as defined under the Ordinance 2001---In the present case, it is an accepted position that the appellant does not fall into either category, which forms the basis of the impugned judgment and return of the plaint---Both the Courts (Civil and Banking), at separate times, have returned the plaint to the appellant, in essence leaving the appellant non-suited; which is contrary to the provisions of law and natural justice, i.e. ubi jus ibi remedium, meaning where there is a right, there is a remedy---Similarly, "actus curiae neminem gravabit" means an act of court should prejudice no man, both the said principles would be called into effect to the aid of the appellant to support him in present matter---Mere technicalities cannot forgo justice, nor can technicalities be allowed to operate as tyrant masters so as to frustrate genuine claims as it remains incumbent upon a court to remedy any wrong suffered by a litigant---Additionally, the High /Appellate Court holds inherent jurisdiction and power, the Court remains duty-bound to ensure that complete justice is done and technicalities are avoided---Such power has been granted vide statute, i.e. under S. 151 as well as O. XLI, R. 33, Code of Civil Procedure, 1908---Additionally, the Appellate Court can also act ex delicto justiciae and supply for an omission in any procedure---The Appellate Court exercises powers to make such orders to cover ostensibly impossible situations for complete dispensation of justice---The appellant has been in pursuit of his property, which has eluded him for nearly 20 years, and the matter to-date remains in limbo---The Appellant is no better off today than he was 20 years ago, despite pursuing his matter before the courts of law---It would by any standard be unjust, if the appellant was not aided to conclude his claim---Thus, to serve a more reasonable and justiciable purpose, High / Appellate Court, while invoking inherent powers, transferred the suit filed by Appellant from the Banking Court to the relevant Civil Court holding pecuniary and territorial jurisdiction over the Property; the matter would commence at the stage of Final Arguments on the basis of evidence already adduced by both the parties---Appeal was disposed of accordingly. 2016 CLD 461; 2003 CLD 1026; 2003 CLD 1843; 2007 CLD 1532; 2004 CLD 689; 2023 SCMR 1451; 2024 CLD 1099; Dr. Asma Noreen Syed v. Government of the Punjab and others 2022 SCMR 1546; Abid Jan v. Ministry of Defence and others 2023 SCMR 1451; Particular reference can be made under Articles 4, 8, 10-A, 23, 24 and 25; Abdul Qudoos v. Commandant Frontier Constabulary KPK, Peshawar and another 2023 SCMR 1334; Messrs Grain System v. Agricultural Development Bank 1993 SCMR 1996, 2004 SCMR 108; 2010 CLD 981; 2009 CLD 172 and 2022 SCMR 870 ref. (b) Constitution of Pakistan--- ----Arts. 4, 8, 10-A, 23, 24 & 25---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 9---Specific Relief Act (I of 1897), Ss. 42 & 54---Suit for a declaration, etc. cancellation, damages and permanent injunction---Right of party---Remedy not granted by the Court---Act(s) of the Subordinate Court(s) not granting relief / right to party---Fundamental rights of litigant---Scope---Owner provided his residential property, through original papers, as a surety in a criminal case on behalf of two accused persons pursuant to their bail order, however, later he did not receive any final outcome on his application for release of surety, i.e. return of his original property papers---Then, owner received a notice from a non-banking finance leasing company ('Leasing Company') stating that the Property was mortgaged to them, and they intended to auction the same---Then the owner filed a Civil Suit for a declaration, etc. before the High Court in its Original Civil Jurisdiction, inter alia, seeking to restraint Leasing Company from auction / sale of the Property but the Single Judge returned the Plaint, with an observation to approach the court of proper jurisdiction---Then the owner approached the Banking Court and filed Suit seeking redressal of his grievance, however , when the matter proceeded to the final arguments the Judge-Banking Court, while holding that it (Banking Court) did not have jurisdiction to adjudicate the matter, returned the Plaint with the direction to file the same before the (civil) court of competent jurisdiction---Owner / Appellant approached Appellate / High Court---Validity---It is abundantly clear that distress has been caused to the Appellant, due to the various courts below sending him from pillar to post in an attempt to safeguard his own Property---Said actions also appear violative to Appellants' rights having been guaranteed under Arts. 4, 8, 10-A, 23, 24 and 25 of the Constitution of Pakistan---Appellant has now been left in a situation whereby his Property appears to be lost in an abyss, not through any fault of his own, but due to actions of the courts below in returning his plaint---Mere technicalities cannot forgo justice, nor can technicalities be allowed to operate as tyrant masters so as to frustrate genuine claims---Thus, to serve a more reasonable and justiciable purpose High/Appellate Court, while invoking inherent powers, the Suit filed by Appellant from the Banking Court to the relevant Civil Court holding pecuniary and territorial jurisdiction over the Property; the matter would commence at the stage of Final Arguments on the basis of evidence already adduced by both the parties---Appeal was disposed of accordingly. Particular reference can be made under Articles 4, 8, 10-A, 23, 24 and 25 ref. Abdul Shakoor and Fahad Ali for Appellant. Nemo for Respondents. Date of hearing: 11th February, 2025.

Summary: Acquittal granted ---- (a) Criminal trial ----Benefit of doubt—Contradictions in ocular and medical evidence—Unexplained delay in postmortem and dispatch of police papers—Presumption of manipulation Prosecution case based on ocular account of two related witnesses who contradicted each other and the medical evidence—Eyewitnesses alleged firearm injuries to the head of deceased, whereas medical officer reported no such injuries—Postmortem delayed without plausible explanation despite timely FIR and hospital receipt of body—Police papers sent after an unexplained 8-hour delay—Held, delays and inconsistencies in autopsy timing and police compliance with procedural rules (Ch. 25, Rr. 37 & 39, Police Rules, 1934) raised serious doubts about the prosecution version—Benefit of doubt must go to accused. Cited Cases: • Hameed Ullah v. Headmistress, Govt. Girls School 1997 SCMR 855 • Malik Tanveer Ali v. Sardar Ali Imam 2010 YLR 1799 (b) Criminal trial ----Recovery evidence—Unexplained delay in dispatch of crime empties to forensic agency—Effect Crime empties recovered on night of occurrence but sent to Punjab Forensic Science Agency after unexplained delay of over three weeks—Rifle allegedly recovered after crime empties already dispatched—Report of PFSA did not indicate date of receipt of empties—Held, belated and unexplained dispatch of crucial forensic evidence diminished evidentiary value of recovery—Recovery rendered inconsequential. (c) Criminal trial ----Eyewitnesses—Unreliable testimony—Elusive answers and lack of corroboration—Effect Complainant (mother of deceased) gave evasive replies during cross-examination and showed lack of knowledge about basic details including articles purchased, identity of co-accused, and previous criminal cases of the deceased—Her testimony contradicted by site plan and medical evidence—Held, eyewitness account not trustworthy when riddled with material discrepancies and uncorroborated by physical or medical evidence—Acquittal warranted. (d) Penal Code (XLV of 1860) ----S. 302(b)—Conviction on capital charge—Requirement of proof beyond reasonable doubt Trial court sentenced accused to death under S. 302(b), PPC—High Court found prosecution failed to establish guilt beyond reasonable doubt due to material contradictions, flawed investigation, and procedural lapses—Conviction and sentence set aside—Death sentence not confirmed in Murder Reference. (e) Criminal Procedure Code (V of 1898) ----S. 544-A—Compensation—Non-confirmation of conviction—Effect Since conviction and sentence of the appellant were set aside and he was acquitted of all charges, direction to pay compensation under S. 544-A Cr.P.C. also stood annulled. Disposition: Criminal Appeal No. 748-J of 2019 allowed; Muhammad Riaz alias Baddi acquitted of charge under S. 302(b), PPC. Criminal Appeal No. 870 of 2019 (complainant’s appeal) dismissed in limine. Murder Reference No. 46 of 2020 answered in the negative; death sentence not confirmed.

Summary: (a) Limitation—Challenging a Sale Mutation After 42 Years—Lack of Legal Standing: ---Sale mutation No. 1542 (Ex.PW-3/3) was sanctioned on 30.07.1961—Plaintiffs challenged it through a declaratory suit filed on 28.07.2003, more than 42 years later—No challenge was made by the original owner, Sher Baz Khan, during his lifetime—Court held that legal heirs lacked standing to challenge the transaction after such a long lapse—No evidence was provided to justify why the original owner or his siblings did not contest the sale earlier—Reliance placed on Gauhar Rehman v. Jan Ashbi (1990 SCMR 1586) and Abdul Haq v. Mst. Surrya Begum (2002 SCMR 1330). (b) Missing Person and Presumption of Death—Application of Qanun-e-Shahadat, 1984: ---Legal principles regarding missing persons examined—Under Article 124 of the Qanun-e-Shahadat, 1984, if a person is missing for seven years, the presumption arises that he is dead, shifting the burden of proof onto those claiming he is alive—Court reaffirmed that inheritance rights only arise from the date of legal presumption of death, not from the date of disappearance—Relied on Jeshankar Revashankar v. Bai Divali (1919 22 B.L.R 771) and Muhammad Sarwar v. Fazal Ahmad (PLD 1987 SC 1). (c) Inheritance Mutation—Predeceased Heirs Have No Right to Claim Property: ---Inheritance mutation No. 2045 (Ex.PW-3/4) was sanctioned on 26.09.1988 for the property of Sher Baz Khan, presumed dead—Court found that Shad Ali Khan (one of the brothers) died in 1973, five years before Sher Baz Khan’s presumed death in 1978—Since a predeceased heir cannot inherit, his children (plaintiffs) had no legal right to claim a share in the inheritance—Reliance placed on Mst. Rakhi Bivi v. Rahat Bibi (7 N.W. 191) and Perveen Shoukat v. Province of Sindh (PLD 2019 SC 710). (d) Burden of Proof—Failure to Establish Date of Death: ---Plaintiffs failed to prove that Sher Baz Khan was alive at the time of inheritance mutation No. 2045 (Ex.PW-3/4)—Court held that in cases where no clear date of death is established, the missing person is presumed to have died on the date the suit was instituted, unless proven otherwise—The plaintiffs could not provide any such evidence—Relied on Lal Hussain v. Mst. Sadiq (2001 SCMR 1036). Disposition: ---Civil Appeal No. 44-P of 2012 dismissed—Sale and inheritance mutations upheld. ---Civil Appeal No. 62-P of 2012 allowed—Plaintiffs' suit dismissed entirely. ---No order as to costs.

Summary: Whether Civil Court has jurisdiction to try the suit in the light of Section 9 of the Code of Civil Procedure (V of 1908) as amended by Punjab Amendment Act No.XIV of 2018 in the light of provisions contained in the Punjab Boards of Intermediate and Secondary Education Act, 1976 as well as the rules and regulations made thereunder? (a) Civil Procedure Code (V of 1908)—Jurisdiction of civil courts—Plenary jurisdiction and its limitations ----S. 9, C.P.C.; Punjab Amendment Act (XIV of 2018)—Civil courts have plenary jurisdiction to entertain all suits of a civil nature unless expressly or impliedly barred—Amendment in Section 9 of C.P.C. (introduced via Punjab Amendment Act, 2018) extended the ouster clause to cases where a general or special law is in force—Court held that the amendment significantly impacted cases related to educational board regulations—Reliance placed on Nestle Pak Limited, Lahore through Authorized Signatory v. Shehryar Qureshi (2024 CLD 502). (b) Punjab Boards of Intermediate and Secondary Education Act, 1976—Ouster of civil court jurisdiction—Interpretation of Section 29 ----S. 29, Punjab Boards of Intermediate and Secondary Education Act, 1976—Board argued that Section 29 ousts the jurisdiction of civil courts in matters related to corrections of names and dates of birth in academic records—Court held that Section 29 does not impose an absolute bar but limits judicial review over acts done by the Board—Jurisdiction may be exercised in cases involving mala fide actions, coram non judice decisions, or void orders—Reliance placed on Board of Intermediate and Secondary Education, Lahore v. Hassan Suleman (2000 SCMR 1415) and Board of Intermediate and Secondary Education, Faisalabad v. Muhammad Waleed (2021 MLD 123). (c) Educational Regulations—Correction of student records—Remedies under administrative law ----Regulation 5, Chapter III, Volume I, and Chapter 17, Volume II, Calendar of Board—Regulations provide a detailed mechanism for correction of names and dates of birth, prescribing fees and procedural requirements—Court observed that students seeking such corrections must exhaust the administrative remedy before approaching civil courts—Failure to follow the regulatory framework renders a civil suit premature—Reliance placed on General Manager, SNGPL, Peshawar v. Qamar Zaman and others (2021 SCMR 2094). (d) Civil Procedure Code (V of 1908)—Remand of cases—Duty of courts to frame jurisdictional issues ----Failure to frame an issue regarding jurisdiction—Court found that lower courts had not properly framed or addressed the jurisdictional question before deciding the cases—Held, all cases remanded to respective Senior Civil Judges to first determine whether civil courts have jurisdiction in light of S. 9, C.P.C. (as amended), and the Punjab Boards of Intermediate and Secondary Education Act, 1976—Reliance placed on Zahid Zaman Khan and others v. Khan Afsar and others (PLD 2016 SC 409). (e) Civil Procedure Code (V of 1908)—Suo moto jurisdiction—Duty to ensure judicial propriety ----High Court exercised its supervisory jurisdiction to correct legal errors in subordinate court decisions—Held, courts must settle jurisdictional questions at the outset before proceeding with merits—Reliance placed on Messrs Muslim Commercial Bank Ltd. v. Tahir Edible Oil (Pvt.) Ltd. (2003 CLC 416). ----Disposition: Civil Revision Petition allowed—All connected petitions (Annexure A) allowed—Judgments and decrees of lower courts set aside—Cases remanded for determination of jurisdiction as a preliminary issue.

Summary: Acquittal granted----(a) Qanun-e-Shahadat Order, 1984: ----Art. 121----Burden of proof----Presumption of innocence----Accused’s failure to explain circumstances surrounding the alleged crime does not absolve the prosecution from proving its case beyond a reasonable doubt----Mere rejection of an accused’s plea (suicide) does not shift the burden of proof nor create an adverse presumption against him----Conviction cannot be sustained on suspicion alone. (b) Criminal trial: ----Medical evidence----Scope and limitations----Medical evidence alone cannot identify the assailant----It may confirm the nature, location, and cause of injuries but cannot establish the identity of the perpetrator----In the absence of direct or circumstantial evidence linking the accused, reliance solely on medical evidence is insufficient to sustain conviction----Cases relied upon: Zakir Hussain v. State (2008 SCMR 222) and Ata Muhammad v. State (1995 SCMR 599). (c) Penal Code (XLV of 1860): ----Motive----Significance in criminal cases----Motive plays a crucial role in cases lacking direct evidence----Prosecution failed to establish a direct motive against the accused while co-accused, against whom a dispute was alleged, were discharged without challenge----Failure to prove motive weakens the prosecution’s case. (d) Criminal Procedure Code (V of 1898): ----S. 103----Recovery of weapon----Recovery of alleged crime weapon from the petitioner’s room was inconsequential as it was not stained with blood, and no chemical examiner’s or serologist’s report was available----Absence of forensic evidence further diluted the prosecution’s case. (e) Administration of justice: ----Benefit of doubt----Acquittal in cases of reasonable doubt----Even a single reasonable doubt regarding the prosecution’s case is sufficient to entitle the accused to acquittal----No need for multiple doubts; any flaw in the prosecution’s case that pricks judicial conscience must favor the accused----Reliance placed on Tariq Pervez v. State (1995 SCMR 1345). -----Disposition: Petition converted into appeal and allowed. Conviction and sentence set aside. Petitioner acquitted and ordered to be released forthwith if not required in any other case. -----Cited Cases: Zakir Hussain v. State (2008 SCMR 222) Ata Muhammad v. State (1995 SCMR 599) Tariq Pervez v. State (1995 SCMR 1345)

Summary: (a) Sales Tax Act, 1990 ---- S. 7(1) --- Input tax adjustment --- Taxability of electricity and gas supplied to the residential colony within factory premises --- Whether input tax adjustment on utilities used by workers in the residential colony within the factory premises is permissible under S. 7(1) of the Sales Tax Act, 1990 --- Maintainability --- Show cause notice was issued to the respondent company questioning the input tax adjustment on electricity and gas bills used in the residential colony within the factory premises --- Adverse order was passed against the respondent, which was overturned by the Tribunal, holding that input tax adjustment was justified as the electricity and gas were supplied through a common commercial meter installed in the name of the company, making the entire unit one registered manufacturing premises --- Islamabad High Court upheld the Tribunal’s decision in Sales Tax Reference No. 14 of 2008 --- Supreme Court held that the residential colony was part of the registered manufacturing unit, facilitating uninterrupted manufacturing activities, and thus, input tax adjustment was permissible --- Input tax is a tax paid by the registered person on purchases, while output tax is calculated on the sale of goods, requiring a legitimate nexus between the two --- S. 7(1) of the Sales Tax Act, 1990, is a beneficial provision, meant to relieve taxpayers from double taxation, and should be interpreted liberally --- Tribunal and High Court’s decisions were found to be based on admitted facts and did not require interference. ---- Cited Cases: • Sheikhoo Sugar Mills Ltd. and others v. Govt. of Pakistan and others (PTCL 2001 CL 331) Disposition: Appeal dismissed; connected CPLA also dismissed.

Summary: (a) Gift under Islamic Law ----Gift—Essentials—Burden of proof—Validity of gift deed questioned due to lack of property description—Plaintiff claimed ownership based on a gift deed dated 12.04.1979, but the document lacked proper identification (Khasra, Khewat, and Khatooni numbers)—Held, under Islamic law, three conditions must be met: (1) offer by the donor, (2) acceptance by the donee, and (3) delivery of possession—Non-production of marginal witnesses and person who accepted the gift on behalf of the donee rendered the transaction suspicious—Reliance placed on Muhammad Boota v. Mst. Bano Begum (2005 SCMR 1885) and Mst. Nazeeran v. Ali Bux (2024 SCMR 1271). (b) Registration & Presumption of Validity ----Registered document—Presumption of authenticity—Challenged gift deed—Petitioner argued that registration of gift deed sufficed to prove its validity—Held, registration creates a presumption of truth but does not establish authenticity if challenged—Once questioned, burden shifts to the beneficiary to prove its genuineness—Reliance placed on Khalid Hussain v. Nazir Ahmad (2021 SCMR 1986) and Cooperative Model Town Society v. Mst. Asghari Safdar (2005 SCMR 931). (c) Possession & Constructive Notice ----Long-standing possession—Claim of ownership—Effect of mutation & inheritance—Petitioner relied on long possession and utility bills to claim ownership—However, in 1987, he himself got the property mutated in favor of all legal heirs of the donor, contradicting his claim—Further, a family agreement (Exh.DW-2/1) in 1993 allowed him to use the property temporarily—Held, mere possession does not establish ownership, especially when mutation of inheritance was attested—Reliance placed on Umar Gul v. Dr. Hafiza Akhtar (2025 SCP 23). (d) Res Judicata & Appeal Maintainability ----Res judicata—Consolidated judgment—Failure to challenge all decrees—Petitioner argued that respondent No.1’s appeal should have been dismissed as res judicata—Held, multiple suits were consolidated, but respondent No.1 only challenged the decree adversely affecting his rights, which was permissible—Reliance placed on Khair Muhammad v. Muhammad Hussain (PLD 2006 SC 577). (e) Disposition Civil revision dismissed. Petitioner failed to prove a valid gift due to (i) lack of proper property description, (ii) non-production of key witnesses, (iii) contradictory documentary evidence (mutation and family agreement), and (iv) failure to discharge burden of proof. The appellate court's decision upholding the cancellation of the gift was found to be legally sound.

Summary: (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 337-A(i), 337-A(ii), 337-A(iii) & 337-L(2)---Qatl-i-amd, causing shajjah-i-khafifah, shajjah-i-mudihah, shajjah-i-hashimah, causing hurt---Appreciation of evidence---Ocular account proved---Accused-appellants were charged for committing murder of the father of complainant and causing injuries to the complainant and his brother through sticks and pickaxe blows---Ocular account of the incident had been furnished by complainant, injured and an eye-witness---Complainant reiterated the same facts as advanced by him in his initial report in shape of Murasila followed by FIR---In his cross-examination, complainant offered a very natural and straightforward narration of the occurrence---Likewise, the injured had clarified the presence of another eye-witness of the occurrence in terms that on the day of occurrence, he along with his father were evacuating sand in their landed property for construction of mosque, when in the meanwhile, eye-witness came there and started gossip/conversation with them---Both the said witnesses were cross-examined at a substantial length; however, they remained consistent on most of the material particulars of the case---Trend of cross-examinations of the eye-witnesses revealed that the mode and manner of the occurrence, venue of crime i.e. landed property of complainant-party, presence of eye-witness on the spot and motive part of the case in terms of excavation of sand, had been specified and confirmed from mouths of said witnesses---Same was the case with statement of another eye-witness of the occurrence, who was cousin of complainant---Presence of said witness on the spot could not be doubted and viewed with a suspicion because of deposition of injured, who had validated and affirmed presence of that witness on the spot of occurrence, even prior to happening of the instant occurrence---Occurrence had taken place in broad daylight and both the parties being co-villagers were familiar with each other, hence, there was no apprehension of mistaken identity or substitution of accused by complainant or other eye-witnesses---Neither any dishonest improvements appeared in their statements nor the story advanced by them appeared to be unnatural or concocted-one, as such, their testimonies had remained un-impeached or un-shattered despite taxing and searching cross-examination by defence---Appeal against conviction was dismissed, in circumstances. Aurangzeb v. The State 2020 SCMR 612 and Muhammad Waris v. The State 2008 SCMR 784 rel. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 337-A(i), 337-A(ii), 337-A(iii) & 337-L(2)---Qatl-i-amd, causing shajjah-i-khafifah, shajjah-i-mudihah, shajjah-i-hashimah, causing hurt---Appreciation of evidence---Minor contradictions in the statements of witnesses---Inconsequential---Accused-appellants were charged for committing murder of the father of complainant and causing injuries to the complainant and his brother through sticks and pickaxe blows---No doubt, there were certain minor contradictions in statements of eye-witnesses in respect of in-between distance between the place of occurrence and house of cousin of complainant, wherein the complainant was working as a laborer at the relevant time and specification of role of appellant qua causing of fatal injuries to deceased i.e. father of complainant with hoe blows---However, it was equally important to note that these two eye-witnesses had been examined in Court after almost 15 months of the tragic incident and occurring of such minor contradictions as mentioned earlier were quite natural---When witnesses were examined after almost 15 months of the occurrence a photographic narration of the occurrence could not be expected from them---Appeal against conviction was dismissed, in circumstances. Khadim Hussain v. The State PLD 2010 SC 669; Muhammad Ilyas v. The State 2011 SCMR 460 and Zulfiqar Ahmad v. The State 2011 SCMR 492 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 337-A(i), 337-A(ii), 337-A(iii) & 337-L(2)---Qatl-i-amd, causing shajjah-i-khafifah, shajjah-i-mudihah, shajjah-i-hashimah, causing hurt---Appreciation of evidence---Medical evidence, confirming ocular account and presence of witnesses at the spot---Accused-appellants were charged for committing murder of the father of complainant and causing injuries to the complainant and his brother through sticks and pickaxe blows---Both the injured witnesses i.e. complainant of present case and his brother had stamp of injuries on their bodies---Before rendering any findings in respect of that aspect of the case, it would be in the fitness of things to make a reference to medical evidence of both these injured witnesses---Medical Officer, at first instance, had spotted two injuries on the body of injured/complainant---Similarly, the said Medical Officer had also examined the other injured, whereby it was opined that the injured had received injury on his head with blunt trauma, and there was bleeding from left ear vitally stable with no history of loss of consciousness---In view of said injuries on the persons of injured witnesses, there was no justifiable reason for them to charge present appellants falsely or for that matter to substitute them with real culprits---Though, it is not a rule of thumb that an injured person will always tell nothing but a whole truth, however, testimony of an injured person cannot easily be discarded on the sole plea that he is interested in conviction of accused---Testimony of such witness is required to be adjudged with a judicious and independent mind in light of attending circumstances of each and every case---If found honest and confidence inspiring, then statement of an injured person can safely be considered against an accused person without any hesitation or jiggle of mind---Thus, presence of injured witnesses on the spot of occurrence, in view of stamp of injuries on their persons was established, being natural, confidence inspiring and in conformity with their accounts---Appeal against conviction was dismissed, in circumstances. Muhammad Iqbal v. The State PLD 2001 SC 222 and Rooh Ullah and another v. The State and others 2022 SCMR 888 rel. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 337-A(i), 337-A(ii), 337-A(iii) & 337-L(2)---Qatl-i-amd, causing shajjah-i-khafifah, shajjah-i-mudihah, shajjah-i-hashimah, causing hurt---Appreciation of evidence---Related and interested witnesses, evidence of---Reliance---Scope---Accused-appellants were charged for committing murder of the father of complainant and causing injuries to the complainant and his brother through sticks and pickaxe blows---Complainant and other alleged eye-witness were real sons of the deceased---Likewise, injured witness was close relative of complainant-party---However, mere relationship between witnesses and deceased would not be sufficient to damage their evidence altogether---Relationship by itself is no ground to discard and discredit testimony of eye-witnesses unless they are shown to be partisan and interested witnesses---If it is established on record that a witness has a motive to implicate an accused person falsely in a case, then in such situation independent corroboration may be sought from other evidence---In the present case, there was nothing on record to suggest any previous blood feud or other bitterness of serious nature between the parties, except previous motive of land dispute, hence, the eye-witnesses had no motive for false implication of present appellants---Appeal against conviction was dismissed, in circumstances. Abdur Rauf v. The State and another 2003 SCMR 522; Amal Sherin and another v. The State PLD 2004 SC 371; Khalid v. The State 2024 SCMR 1474; Zakir Khan and others v. The State 1995 SCMR 1793; Salah-ud-Din and another v. The State 2018 PCr.LJ 1297 and Muhammad Umar v. The State 2022 PCr.LJ 695 rel. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 337-A(i), 337-A(ii), 337-A(iii) & 337-L(2)---Qatl-i-amd, causing shajjah-i-khafifah, shajjah-i-mudihah, shajjah-i-hashimah, causing hurt---Appreciation of evidence---Circumstantial evidence; justifying conviction of accused ---Accused-appellants were charged for committing murder of the father of complainant and causing injuries to the complainant and his brother through sticks and pickaxe blows---Recovery of blood-stained pebbles from the spot and blood-stained garments of the deceased as well as injured witnesses, added strength to the prosecution's case more particularly, when weapon of offence i.e. pickaxe was shown recovered on pointation of one of the appellants, from his cattle-shed, lying beneath the cot---Circumstantial evidence, too, had rightly been believed by Trial Court qua conviction of appellants---Appeal against conviction was dismissed, in circumstances. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b), 337-A(i), 337-A(ii), 337-A(iii) & 337-L(2)---Qatl-i-amd, causing shajjah-i-khafifah, shajjah-i-mudihah, shajjah-i-hashimah, causing hurt---Appreciation of evidence---Motive not proved--- Accused-appellants were charged for committing murder of the father of complainant and causing injuries to the complainant and his brother through sticks and pickaxe blows---Motive behind the occurrence was alleged by prosecution to be a dispute over excavation of sand from landed property ---During the course of lengthy and searching cross-examination on behalf of defence, motive part of the case could not be shattered---Even otherwise, motive is a double-edged weapon which cuts both sides in like manner---Appeal against conviction was dismissed, in circumstances. State v. Muhammad Sharif and others 1995 SCMR 635 rel. Abdul Saboor, for Appellants/accused (in Criminal Appeal No. 239-M of 2023). Naeem Khan, Asstt: A.G for the State (in Criminal Appeal No. 239-M of 2023). Shaibar Khan and Fawad Ahmad (Shah Puri), for Respondent/ complainant (in Criminal Appeal No. 239-M of 2023). Shaibar Khan and Fawad Ahmad (Shah Puri), for Respondent/ complainant (in Criminal Revision No. 51-M of 2023). Naeem Khan, Asstt: A.G for the State (in Criminal Revision No. 51-M of 2023). Abdul Saboor, for Respondents/ accused (in Criminal Revision No. 51-M of 2023). Date of hearing: 25th February, 2025. Salah-ud-Din, J .--- Through this judgment, we intend to decide the instant Criminal Appeal bearing No. 239-M/2023 titled "Gul Rahman and another v. State and another" as well as connected Criminal Revision bearing No. 51-M/2023 for enhancement titled "Atta-ul-Haq v. State and others", as both these connected matters are by-product of one and same impugned order/judgment dated 20.6.2023 passed by learned Sessions Judge/Zila Qazi/Judge M.C.T.C District Shangla. Through above-referred impugned judgment, appellants were convicted and sentenced as under:-

Summary: Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)--- ----Ss. 2(a), 4 & 20(4)---Microfinance Institutions Ordinance (LV of 2001), S. 2(ia)---Penal Code (XLV of 1860), S. 489-F---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of FIR---Dishonoring of cheque---Repayment of loan---Financial institution and Microfinance institution---Distinction---Petitioner/accused sought quashing of FIR registered on dishonouring of cheque issued for repayment of loan---Validity---Scope of Financial Institutions (Recovery of Finances) Ordinance, 2001 is fundamentally different from that of Microfinance Institutions Ordinance, 2001---Provisions of Microfinance Institution Ordinance, 2001 are sector-specific, focused exclusively on microfinance institutions serving underprivileged and microenterprises segments---Provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 are broad in coverage and apply to wide range of financial institutions falling within statutory definition of a “financial institution” under S. 2(a) of Financial Institutions (Recovery of Finances) Ordinance, 2001---Nature of respondent/complainant’s business activities squarely fell within the ambit of the term “financial institution” under S. 2(a)(i) of Financial Institutions (Recovery of Finances) Ordinance, 2001---Any obligations arising from financial accommodations extended by respondent/complainant fell within the jurisdiction of Banking Court under Financial Institutions (Recovery of Finances) Ordinance, 2001---First Information Report registered by respondent/complainant under S. 489-F, P.P.C. stated that petitioner/ accused obtained a “loan” from it and gave cheque in question for its repayment which was dishonoured on presentation---Parties acknowledged that petitioner/accused was covered under the definition of “customer” and the cheque was given for the repayment of “finance” and fulfilment of an “obligation” as defined in S. 2 of Financial Institutions (Recovery of Finances) Ordinance, 2001---Respondent/ complainant was a financial institution within the meaning of S. 2(a) of Financial Institutions (Recovery of Finances) Ordinance, 2001 and cheque had been issued for the repayment of finance, the alleged offence fell exclusively under S. 20(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001 and the provision of S. 489-F, P.P.C. did not apply---Banking Court had exclusive jurisdiction over such matters under S. 7 of Financial Institutions (Recovery of Finances) Ordinance, 2001---Any prosecution against petitioner/accused had to be initiated through a complaint before Banking Court as prescribed under Financial Institutions (Recovery of Finances) Ordinance, 2001---High Court in exercise of Constitution jurisdiction quashed the FIR registered against petitioner/accused---High Court clarified that respondent/complainant was not precluded from filing a complaint under S. 7 of Financial Institutions (Recovery of Finances) Ordinance, 2001 before Banking Court for prosecution under S. 20(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001--- Constitutional petition was allowed, in circumstances. Ch. Sultan Mahmood, assisted by Samran Mushtaq Chaudhry and Muhammad Sohaib Mazhar for Petitioner. Sittar Sahil, Assistant Advocate General for Respondents Nos.1 to 3. Ms. Nosheen Ambar Bukhari and Syeda Zunaira Gillani for Respondent No.4. Date of hearing: 25th September, 2024.

Summary: Arbitration Act (X of 1940)--- ----S. 20---Arbitrator, appointment of---Formal reference, not filing of---Effect---Submission of Award---Validity---It is an admitted position that parties were running the business with certain name and style as a registered firm---There also exists an arbitration agreement inter se parties to settle their disputes arising from joint business---Chapter III of the Arbitration Act 1940, (‘the Act 1940 ’) provides a mechanism of arbitration with intervention of court where there is no suit pending---S. 20 of the Act, 1940 directly deals with the matter in issue and respondents while invoking said provision filed a petition before the civil court, seeking intervention that the agreement be filed in the court and dispute be referred to arbitrator---Appellants, while submitting reply to the petition, conceded the same and requested the court that the matter may be resolved by appointing an arbitrator---On the basis of statement of the counsel for the appellants, the Trial Court directed the parties to nominate an arbitrator---Both the sides ultimately agreed on appointment of an Advocate as arbitrator by way of relevant order---However, record revealed that no formal reference was framed by the Trial Court for the arbitrator to submit his award as mandated in subsection (4) of S. 20 of the Act, 1940, whereas before referring the matter to the arbitrator an order of reference by the court is sine qua non---Thus, framing of reference in terms of subsection (4) of S. 20 of the Act, 1940 and referring it to the arbitrator is a necessary corollary and pre-condition for the arbitrator to start the arbitration proceedings---When the very basis of the arbitration proceedings are suffering with patent illegalities, the superstructure built thereupon would automatically crumble---Trial Court erred in law while making award the rule of the court---High Court set-aside the impugned judgment and decree; as a sequel, petition under S. 20 of the Act, 1940, moved by the respondents, shall be deemed to be pending before Trial Court, who shall first appoint the arbitrator and then frame a reference for determination of the arbitrator---Appeal was allowed accordingly. Oil and Gas Development Corporation Ltd. Pakistan v. Claugh Engineering Ltd. through Local Representative Mr. Martin Harris 1999 MLD 254; Pakistan through Ministry of Defence v. Ch. Fazal Muhammad and others 2005 YLR 2896 and China International Water v. Pakistan Water and Power Development Authority PLD 2005 Kar. 670 ref. Muhammad Khan Zaman for Appellants. Karamat Hussain Janjua for Respondents Nos. 1 and 2. Date of hearing: 25th February, 2025.