Summary: Summary pending

Summary: (Against the judgement dated 06.12.2018 passed by Sindh High Court, Sukkur Bench in Criminal Appeal No. D-90 of 2012 and Criminal Appeal No. D-87 of 2012). (a) Control of Narcotic Substances Act (XXV of 1997)--- ----9(c)---Possession of narcotic substance---Reappraisal of evidence---Official witnesses, evidence of---Scope---Prosecution case was that 30 kilogram charas/hashish was recovered from the truck driven by accused "GK", while accused "MK" was seated on the front passenger seat---Trial Court convicted both the accused and sentenced them to suffer imprisonment for life---Appeal was preferred before the High Court but was dismissed---Validity---Official witnesses were competent witnesses unless mala fide, enmity, or ulterior motive is convincingly established on the record, which, in the present case, was conspicuously absent---In fact, it had emerged on record that all the prosecution witnesses belonged to the Excise Department, whereas the accused persons were from another province and there existed no past animosity between them that may give rise to suspicion of false implication---Petition of petitioner "GK" for leave to appeal was dismissed accordingly. Nazir Ahmed v. The State 2023 SCMR 1299 rel. (b) Control of Narcotic Substances Act (XXV of 1997)--- ----9(c)---Possession of narcotic substance---Reappraisal of evidence---Presumption of knowledge and constructive possession of contraband---Scope---Prosecution case was that 30 kilogram charas/hashish was recovered from the truck driven by accused "GK", while accused "MK" was seated in the front passenger seat---Trial Court convicted both the accused and sentenced them to suffer imprisonment for life---Appeal was preferred before the High Court but was dismissed---Validity---Record showed that the intercepted truck was under the control and custody of the driver, petitioner "GK", which legally amounted to his constructive possession of the narcotic recovered from the vehicle---In such circumstances, the driver was deemed responsible for the contraband found in the vehicle under his charge and it was presumed that he had knowledge of its presence---When the petitioner, "GK", was signaled to stop the vehicle, he instead accelerated, which was a clear indication of his intent to flee---Such action of speeding up in response to a police signal, strongly suggested that the petitioner "GK" had something to hide---Situation became even more telling when, upon searching the vehicle, narcotic was uncovered from secret compartments within the truck's cabin body---Petitioner "GK" not only had knowledge of the contraband but was in clear constructive possession of the contraband narcotic---In that regard, the petitioner "GK" had been rightly found guilty of committing an offence falling within the ambit of Sections 6 and 7 of the Control of Narcotic Substances Act, 1997, and punishable under Section 9(c) of the said Act---Petition of petitioner "GK" for leave was dismissed accordingly. State v. Wallace 372 Md. 137, 812 A.2d 291 2002 and Kashif Ameer v. The State PLD 2010 SC 1052 rel. (c) Control of Narcotic Substances Act (XXV of 1997)--- ----9(c)---Possession of narcotic substance---Reappraisal of evidence---Person seated in front passenger seat---Not aware of presence of narcotics in the vehicle---Prosecution case was that 30 kilogram charas/hashish was recovered from the truck driven by accused "GK", while accused "MK" was seated in the front passenger seat---Trial Court convicted both the accused and sentenced them to suffer imprisonment for life---Appeal was preferred before the High Court but was dismissed---Validity---As per record, petitioner "MK" was sitting on front seat at the time of interception---As such, attributing the illicit narcotics found in the vehicle to petitioner "MK" could not be justified in the absence of any evidence linking him to the possession or control of the vehicle, as prosecution failed to provide evidence that he was aware of the narcotic in the vehicle---Since petitioner "MK" lacked a possessory right in or control over the vehicle, and it could not be inferred that he had knowledge of the narcotic---Thus, petitioner "MK" was neither conscious nor aware of the narcotic present in the vehicle---Supreme Court found no reasonable grounds to uphold his conviction---Petit ion of petitioner, "MK", was converted into appeal and was allowed, in circumstances, and he was acquitted of the charge. Shahzada v. State 2010 SCMR 841 rel. Burhan Latif Khaisori, Advocate Supreme Court for Petitioner. Saleem Akhtar Buriro, Additional Prosecutor General, Sindh for the State. Assisted by: Ms. Tayyaba Munir, Law Clerk. Date of hearing: 23rd April, 2025.

Summary: Income Tax Ordinance (XLIX of 2001)--- ----Ss. 2(36), 122 & 237(1)---Income Tax Rules, 2002, R. 214---Notification SRO No. 754 (I)/2016, dated 15-08-2016---Welfare society---Tax credit---Nature of amendment ---Authorities issued notice for tax recovery to respondent / taxpayer on the ground that it did not have valid approval in its favour for claiming tax credits---Validity---Provision of Rule 214 of Income Tax Rules, 2002 was to apply for subsequent three years---Such amendment was to apply prospectively as the words subsequent three years did not suggest that the amendment was to apply retrospectively---Notification SRO No. 754 (I)/2016, dated 15-08-2016did not contain any provision which could suggest that the notification would apply retrospectively---Approval obtained by respondent / taxpayer in year 2007 was valid and it did not expire in year 2010, on account of notification SRO No. 754 (I)/2016, dated 15-08-2016---Retrospective application of law cannot be made unless specifically provided for, particularly in tax cases---Notification SRO No. 754 (I)/2016, was issued on 15-08-2016, the period of three years was to be counted subsequent thereto which meant that the approval granted would expired in August 2019---Supreme Court declined to interfere in the matter as the respondent / taxpayer had relevant approval necessary for claiming tax credit for the tax year 2019 and was entitled to it---Petition for leave to appeal was dismissed and leave to appeal was refused. Commissioner Inland Revenue v. Millat Tractors Ltd. 2024 SCMR 700 rel. Mrs. Kausar Parveen, Advocate Supreme Court for Petitioner. M. Amir Sohail Advocate Supreme Court for Respondents. Date of hearing: 23rd April, 2025.

Summary: (a) Sindh Rented Premises Ordinance (XVII of 1979) --- ----S.15---Eviction petition---Personal bona fide need of the landlord/ landlady---Scope---The petitioner (landlady) filed eviction petition against respondent No.1 under S.15 of the Sindh Rented Premises Ordinance, 1979 (SRPO, 1979), on grounds of default, nuisance, and personal bona fide need---The Rent Controller allowed the application filed by the petitioner (landlady), which was later set aside by the appellate court---The petitioner (landlady) mainly relied on her personal bona fide need and stated to have previously lived in her son's house and now sought to reside with her husband in her own house---She (landlady) refused to extend the tenancy to the respondent No.1 (tenant) and demanded vacation of the premises---Held: Once the landlady stepped into the witness box and made a statement that the tenement was required for her personal bona fide need, ejectment proceedings had to follow and it was not up to the tenant to dictate as to how and in what manner, the landlady could use the tenement in question---It was the decision of the landlady as to how she wanted to reside in the subject property even if the same was to her detriment and even if the tenement in question was inhabitable, such an argument would be immaterial --- Impugned order was set-aside , however, since the tenement in question was being used for the purposes of a school, therefore, six months' time was granted for vacation of the property in question---Constitutional petition was allowed. M/s. Gizri Corporation Pvt. Ltd. v. Pakistan Industrial Development Corporation Pvt. Ltd. and another C.P. Nos. S-320 and 321 of 2024; Jehangir Rustom Kakalia v. State Bank of Pakistan 1992 SCMR 1296; Wasim Ahmad Adenwalla v. Shaikh Karim Riaz 1996 SCMR 1055 and C.P No. 495/2023 rel. (b) Sindh Rented Premises Ordinance (XVII of 1979) --- ----S.15-A---Eviction petition---Personal bona fide need of the landlord/landlady, plea of---Protection available to the tenant where landlord/ landlady misuses plea of personal bona fide need---Accountability mechanism--- Scope---The provision of S.15-A of the Sindh Rented Premises Ordinance, 1979 was introduced to ensure that ejectment proceedings are not abused and due protection is given to the tenant in cases where the landlord/landlady has misused the provisions of the Ordinance 1979---A restriction of one year has been placed on the owner/landlord in case he wishes to rent out the property to another tenant---This accountability mechanism perfectly balances the low evidentiary threshold placed on the owner/landlord regarding personal need. Mst. Zubeda through her son and General Attorney v. Muhammad Nadir 1999 MLD 3011 and Mst. Dilshad Bibi v. Ramzan Ali 2006 CLC 1853 ref. (c) Sindh Rented Premises Ordinance (XVII of 1979) --- ----S.15---Eviction petition---Maintain-ability ---Landlord being represented through attorney---Effect and scope---Such petition is maintainable if instituted through a duly authorized attorney representing the landlord---Landlord/landlady cannot be non-suited on the ground of non-examining himself/herself in support of personal bona fide need and his/her representation through attorney would not be fatal to his/her case. Mst. Jehan Ara through Attorney v. Raja Zafarullah Janjua PLD 2003 SC 277 and Ferozuddin and another v. Additional District Judge, Karachi East and another 2012 SCMR 1679 rel. Moiz Ahmed along with Ms. Sidra Tabassum for Petitioner (in C.P. No. S-391 of 2023). Mayhar Kazi along with Zahid Ali Sahito for Respondent No. 1 (in C.P. No. S-391 of 2023). Mayhar Kazi for Petitioner along with Zahid Ali Sahito (in C.P No. S-976 of 2024). Moiz Ahmed for Respondent No. 1 along with Ms. Sidra Tabassum (in C.P. No. S-976 of 2024). Dates of hearing: 17th March and 11th, 2025. Judgment Muhammad Jaffer Raza, J .--- By this single judgment I will dispose of the above-mentioned Constitutional Petitions. The instant petitions have been filed impugning the judgments dated 30.01.2023 and 23.07.2024, respectively. Brief facts of the petitions are as follows: C.P. No. S-391 of 2023 2. The Petitioner in the instant petition has preferred Rent Application bearing Rent Case No.119/2020, under Section 15 of the Sindh Rented Premises Ordinance, 1979 ("SRPO, 1979") on the grounds of default, nuisance and personal bona fide need. The said rent application was allowed vide judgment dated 11.05.2022. Thereafter, the said judgment was set-aside vide impugned judgment dated 30.01.2023 in First Rent Appeal No.115/2022 and the rent application filed by the Petitioner was dismissed. C.P. No. S-976 of 2024 3. The Respondent No.1 in the instant petition preferred Rent Application bearing Rent Case No.378/2023, under Section 14 SRPO, 1979. It was asserted that she does not own any other property and after being widowed she required the property for her personal need. The said rent application was allowed vide judgment dated 03.04.2024. Thereafter the Petitioner in the instant petition has preferred First Rent Appeal No.106/2024 which was dismissed vide impugned order dated 23.07.2024. 4. For the purpose of present judgment, both the learned counsel agree that assistance would be rendered in C.P. No.S-391/2023 and subject to the decision in the said petition, the fate of C.P. No.S-976/2024 may be adjudicated upon, if the need arises. 5. Learned counsel for the Petitioner has stated that the learned Rent Controller vide judgment dated 11.05.2022 has allowed the rent application of the Petitioner bearing Rent Case No.119/2020. Learned counsel in this regard invited my attention to the rent application preferred by the Petitioner, specifically paragraphs 9 and 10. The same are reproduced as under: - "9. That the applicant requires the said property for her personal bona fide use as now a days she is living in the house of her son. Now the applicant wants to live in her own house along with her husband. It is also submitted that due to her personal requirement, the applicant has refused to extend the period of tenancy and demanded for vacating the premises, but the opponents have refused to vacate the premises. 10. That the opponents due to their conducts and deeds are liable to be ejected on ground of default, subletting, nuisance and also on ground of personal bona fide use." 6. Learned counsel has further stated that the averments of the Petitioner stood un-rebutted and her claim of personal bona fide need was established. 7. Conversely learned counsel for the Respondent has stated that there are conflicting findings of both the learned Courts below, and this being the case the instant petition is ought to be dismissed. He has further argued that the ground of personal bona fide need has not been made out by the learned counsel for the Petitioner as the Petitioner is an old and infirm lady and after being widowed cannot live in the tenement without the help and support of her offspring. He has further argued that the Petitioner resides with her son and her age and health do not permit her to reside in the tenement independently. He has further argued that the tenement in question is being operated as school and is not habitable. He in this respect has supported the judgment of the learned Appellate Court and stated that the rent application has rightly been dismissed. Learned counsel for the Respondent has relied upon the following judgments: - ? Iqbal Book Depot and others v. Khatib Ahmed and 6 others ? Allies Book Corporation through L.Rs. v. Sultan Ahmad and others ? Tariq Ali v. Mst. Rubina Bano and another ? Mehboqb Alam v. Miss Tehseen Shafqat Khan and others ? Faizan Shabbir v. Shaikh Abdul Wahab through Attorney and 2 others ? Abdur Rehman v. Waqar Ahmed and 2 others 8. I have heard the learned counsel for the parties and perused the record with their able assistance. Considering that there is a concurrent finding on the issue of default, with the consent of the learned counsel, I will in the instant judgment, only examine the ground of personal bona fide need. At this juncture it will be relevant to reproduce the cross examination of the Petitioner's attorney. The same is reproduced below: - "The opponent was obliged to vacate the demised premises after 57 months of the agreement and on the ground of personal bona fide need as my mother has become widow. The applicant is residing with my young brother namely Uzair Feroze since 2011. It is correct to suggest that I have not disclosed in my affidavit-in-evidence whether the applicant was residing is my younger brother. It is incorrect to suggest that I have not disclosed the details to personal need in affidavit-in-evidence. The applicant is about 67 or 70 years old. It is her wish that she would live in her demised property. It is correct to suggest that the applicant is still receiving rent from the opponents. It is correct to suggest that we had informed the opponents that the demised premises was required to the applicant for her personal bona fide need. We had informed the opponents in writing about the personal bona fide need. It is correct to suggest that the applicant is not in a position to walk properly. It is incorrect to suggest that the applicant is ill and she has not come to the Court with her own will. It is correct to suggest that there is a school operating in the demised premises. I do not know how many rooms are there in the demised premises. I do not know whether the demised premises is a commercial property. We have been accepting the rent and extending the tenancy." 9. It is a settled principle of law that once the landlord/owner steps into the witness box and makes a statement that the tenement is required for his/her personal bona fide need, ejectment proceedings must follow. It has already been held by me in the case of M/s. Gizri Corporation Pvt. Ltd. v. Pakistan Industrial Development Corporation Pvt. Ltd. and another that it is not up to the tenant to dictate as to how and in what manner, the landlord/owner will use the tenement in question. 10. The arguments advanced by the learned counsel for the Respondent in reference to the inability of the Respondent to reside on her own is therefore without any substance. It is the decision and choice of the landlord/landlady as to how she wants to reside even if the same is to her detriment. Therefore, the argument that the tenement in question is inhabitable, is to my mind, immaterial. Further, the finding rendered by the learned Appellate Court regarding the physical inability of the Petitioner to reside in the tenement is unfounded and presumptuous. Reliance in this regard can placed in the following cases: - ? Jehangir Rustom Kakalia v. State Bank of Pakistan "Rule laid down in the cases mentioned above is that on the issue of personal need, assertion or claim on oath by landlord if consistent with his averments in his application and not shaken in cross-examination, or disproved in rebuttal is sufficient to prove that need is bona fide." ? Wasim Ahmad Adenwalla v. Shaikh Karim Riaz "3. Leave was granted to consider the contention that the plea of personal requirement was not bona fide as a flat was available in the same premises which A the Respondent did not occupy. The learned counsel for the appellant contended that the Respondent is residing in a bungalow in Defence Housing Authority and that it is not imaginable that he would shift in a small house in a dingy and congested locality. He further contended that during the pendency of the case a portion of the house, which was an independent apartment, fell vacant, but the Respondent did not occupy it and rented it out to the tenant. On the basis of these facts it is contended that the Respondent's need is neither genuine nor bona fide. So far the first contention is concerned the learned counsel for the Respondent stated that the Respondent is residing in a rented house with his son in the Defence Housing Authority. The contention of the learned counsel for the appellant therefore does not hold water because firstly, the Respondent is not residing in his own house, but is residing with his son who has rented out a house in that area, and secondly, in these circumstances if a landlord chooses to reside in his own house which may be in a locality which is much inferior and congested than the place where he is residing on rent, it cannot be termed as mala fide. It is the choice of the landlord to choose the house or the place where he wants to reside." (Emphasis added) ? Rabia Jamal v. Mst. Nargis Akhtar "22. On the basis of the above decisions of the Supreme Court of Pakistan, it is apparent that once the landlord has adduced evidence by stating that they require the Said Tenement for their personal use in good faith, thereafter the burden shifts on the tenant to show either that the landlord did not require the Said Tenement for her personal use in good faith or that the Said Tenement could not be used by the landlord for the purpose as indicated in the Application under clause (vii) of Subsection (2) of Section 15 of the Sindh Rented Premises Ordinance, 1979. However, while raising such a contention it is not open to the tenant to allege mala fide on the part of the landlord by adducing evidence to state that the landlord had alternative premises or for that matter that the landlord had alternative premises that were more suitable for the needs of the landlord. This right to choose from amongst a host of properties that are available to a landlord as to which of those properties the landlord requires for their personal use vests solely with the landlord to the exclusion of all others." (Emphasis added) 11. The requirement of personal need is further buttressed by the fact that even after the demise of her husband, the Petitioner opted to file an application under Section 14 of the SRPO and the same was allowed by the learned Rent Controller. However, the same is the subject matter of C.P. No. S-976 of 2024 and requires no further deliberation. 12. Any adjudication on Section 15(2)(vii) would be deficient without referring to the accountability mechanism provided for under Section 15-A of the SRPO. The same is reproduced below: - 3[("15-A"] 4[ Where the land-lord, who has obtained the possession of a building under section 14 or premises under clause (vii) of section 15, relets the building or premises to any person other than the previous tenant or puts it to a use other than personal use within one year of such possession __ (i) he shall be punishable with fine which shall not exceed one year's rent of the building of the premises, as the case may be, payable immediately before the possession was so obtained. (ii) The tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of the building or the premises, as the case may be, and the Controller shall make an order accordingly." (Emphasis added) 13. The provision reproduced above was introduced to ensure that ejectment proceedings are not abused and due protection is given to the tenant in cases where the landlord/owner has misused the provisions of the Ordinance. A restriction of one year has been placed on the owner/landlord in case the owner/landlord wishes to rent out the property to another tenant. This accountability mechanism perfectly balances the low evidentiary threshold placed on the owner/landlord regarding personal need. 14. The protection given, which is also available to the present Respondent, has been expounded in the following judgments, relevant parts of the same are reproduced: - a) Mst. Zubeda through her son and General Attorney v. Muhammad Nadir. "Sufficient protection has been postulated in section 15-A of the Sindh Rented Premises Ordinance, 1979 which in the event of use of premises other than personal rise not only postulates punishment for the landlord but also provide an effective mechanism for restoration of the possession to the evicted tenant before the Controller who would be entitled to exercise such authority on due consideration of the facts. Since the law provides an alternate and effective remedy to defuse the impression of the respondent, I think the apprehension is not well founded in the present state of circumstances." b) Mst. Dilshad Bibi v. Ramzan Ali. "Keeping in view the only restriction imposed on the personal need by way of section 15-A of the SRPO as well as authorities quoted by the petitioner and the evidence brought on record the petitioner has proved that the shop is required for personal need to be used by her son and no doubt has been created in this respect. The apprehension of the respondent that the petitioner may let out the premises after obtaining the same to other tenant is covered by section 15-A of the SRPO which remove the above apprehension." 15. The judgements relied upon by the learned counsel for the Respondent do not advance his cause for the reasons which shall be elucidated herein below. ? The dicta in the case of Iqbal Book Depot (supra) provides no assistance to the learned counsel for the Respondent and advances the case of the Petitioner. It was held by the Honourable Supreme Court as under: - "10. We have also dilated upon the question as to whether the entire building would be needed or a part of and, we are of the view it may be left to the discretion of landlord who alone has the authority to decide this aspect of the matter and no advice or suggestion can be made binding upon him as the tenants cannot act as gratuitous advisers." ? The reliance of the learned counsel on the cases of Allies Book Corporation (supra) and Tariq Ali (supra) are misplaced. It was held in the aforementioned cases that active concealment of material fact/s may disentitle the landlord to eject the tenant. No such concealment has been highlighted by the learned counsel. ? The case of Faizan Shabbir (supra) is not relevant for the purposes of present adjudication. In the said case the ground for personal bona fide need was not taken in the rent application. The said ground was only taken during the evidence of the landlord. It has already been noted above that the ground under adjudication has been specifically pleaded by the Petitioner in the rent application, and for this reason the relevant paragraphs of the said application have been reproduced above. ? I respectfully disagree with the contention of the learned counsel for the Respondent and his reliance on the cases of Mehboob Alam (supra) and Abdur Rehman (supra) that the rent application ought to have filed by the Petitioner herself. In this regard I rely on the judgments rendered in the cases of Mst. Jehan Ara through Attorney v. Raja Zafarullah Janjua and Ferozuddin and another v. Additional District Judge, Karachi East and another wherein in the former case the Honourable Supreme Court held as under: - "9. We are afraid the appellant cannot be non-suited only on the ground of non-examining herself in support of her personal bona fide need and that her representation through attorney was fatal to her case. The record reveals that the appellant has been able to establish her case by producing sufficient evidence of her attorney, namely. Altaf Hussain and one. Dr. Tehsin-ur-Rehman in support of her contention. Not even a single question was put to the attorney of the appellant to rebut the claim of her personal bona fide need as such the judgment of the learned High Court is not sustainable and it has traveled beyond the scope of the pleadings of the parties. Above mentioned witnesses, namely, Altaf Hussain and Dr. Tehsin-ur-Rehman had categorically stated in their evidence that the appellant needed the premises for her bona fide personal need and she demanded the premises many a time for vacating the premises in question- but the respondent refused to vacate the same. This version was never controverted by the respondent in his evidence as such the finding recorded by the High Court is not sustainable in law and is thus set aside whereas the judgment of the Rent Controller being based on sufficient reasoning is maintained." 16. In the light of what has been held above, the instant petition is allowed. The Impugned order is set-aside. I have observed that the tenement in question is being used for the purposes of a school and therefore consider it appropriate to grant six (06) months' time to the Respondent to vacate the tenement in question. The possession of the tenement shall be handed over to the Petitioner no later and six months from today through the Nazir of the Executing Court. 17. In light of what has been held above, C.P. No. S-976 of 2024 has become infructuous and is hereby dismissed, with no order as to costs. UN/R-11/Sindh Petition dismissed.

Summary: (Against order dated 31.01.2024 passed by the Lahore High Court, Lahore in I.T.R. No. 77169 of 2022). Income Tax Ordinance (XLIX of 2001)--- ----Ss. 2(36), 122 & 237(1)---Income Tax Rules, 2002, R. 214---Notification SRO No. 754 (I)/2016, dated 15-08-2016---Welfare society---Tax credit---Nature of amendment ---Authorities issued notice for tax recovery to respondent / taxpayer on the ground that it did not have valid approval in its favour for claiming tax credits---Validity---Provision of Rule 214 of Income Tax Rules, 2002 was to apply for subsequent three years---Such amendment was to apply prospectively as the words subsequent three years did not suggest that the amendment was to apply retrospectively---Notification SRO No. 754 (I)/2016, dated 15-08-2016 did not contain any provision which could suggest that the notification would apply retrospectively---Approval obtained by respondent / taxpayer in year 2007 was valid and it did not expire in year 2010, on account of notification SRO No. 754 (I)/2016, dated 15-08-2016---Retrospective application of law cannot be made unless specifically provided for, particularly in tax cases---Notification SRO No. 754 (I)/2016, was issued on 15-08-2016, the period of three years was to be counted subsequent thereto which meant that the approval granted would expire in August 2019---Supreme Court declined to interfere in the matter as the respondent / taxpayer had relevant approval necessary for claiming tax credit for the tax year 2019 and was entitled to it---Petition for leave to appeal was dismissed and leave to appeal was refused. Commissioner Inland Revenue v. Millat Tractors Ltd. 2024 SCMR 700 rel. Mrs. Kausar Parveen, Advocate Supreme Court for Petitioner. M. Amir Sohail, Advocate Supreme Court for Respondents. Date of hearing: 23rd April, 2025.

Summary: (a) Civil Procedure Code (V of 1908)--- ----S. 48---Execution proceedings---Principle of merger of decree---Scope---When a Superior Court passes a judgment in appeal, irrespective of the fact whether it was set aside or modified or affirmed, the decree of Lower Court merges with that of the Appellate Court. (b) Civil Procedure Code (V of 1908)--- ----S. 48---Limitation Act (IX of 1908), First Sched., Art. 181---Execution proceedings---Principle of merger---Respondent/decree holder filed fresh execution petition following judgment and decree passed by Appellate Court---Executing Court dismissed fresh execution petition as barred by time but High Court allowed the same on the principle of merger---Validity---Starting point of limitation of fresh Execution Petition, subsequent to first one, was the date of final judgment of final Court of Appeal---By applying principle of merger, judgment and decree of Trial Court merged with that of Appellate Court---It was the latter decree which was operative and executable, therefore, High Court rightly treated fresh application for execution of appellate decree as filed within limitation under section 48 C.P.C. and not under Article 181 of Limitation Act, 1908---Fresh Execution Petition filed by respondent subsequent to the first one was well within limitation, as it fell within six years after the decree of Appellate Court's judgment---Bar of limitation under Article 181 of Limitation Act, 1908 did not apply due to specific application of section 48 C.P.C. and the principle of merger---Supreme Court declined to interfere in the order passed by High Court as there was no illegality, irregularity or jurisdictional defect in it---Petition for leave to appeal was dismissed and leave to appeal was refused. Sahibzadi Maharunisa and another v. Mst. Ghulam Sughran and another PLD 2016 SC 358; Maluvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241; Nasrullah Khan's case PLD 2013 SC 478; Commissioner of Income-Tax, Bombay v. Messrs Amritlal Bhogilal and Company AIR 1958 SC 868; Kunhayammed and others v. State of Kerala and another AIR 2000 SC 2587 and Collector of Customs, Calcutta v. East India Commercial Co. Ltd., Calcutta and others AIR 1963 SC 1124 rel. Farman Ullah Khattak, Advocate Supreme Court for Petitioner. Nemo for Respondents. Date of hearing: 23rd April, 2025.

Summary: ----Registered gift deed, challenge to---Inheritance claims---Limitation, applicability of---Subsequent third-party transfers on the basis of gift deed---Gift deed not challenged in lifetime---Effect---Inheritance claims must overcome limitation unless exceptional circumstances---Exceptional circumstances where limitation did not apply in inheritance cases stated---The pivotal question under consideration in the instant matter was as to "whether, in the realm of inheritance claims, the bar of limitation retained its binding force and whether a legal heir could successfully challenge a decades-old registered gift and subsequent third-party transfers on the basis of inheritance, without first overcoming the statutory bar of limitation, particularly where the predecessor-in-interest, during their lifetime, neither contested the transaction nor asserted any legal right thereto"---Petitioner along with respondent No. 16, filed a suit for declaration and permanent injunction against a registered gift deed dated 03.09.1981, executed by his maternal grandfather (the original owner) in favor of his uncles (respondents Nos. 7-10) regarding some ancestral land---After the gift deed, respondents 7-10 sold the property to third parties (respondents 1-6) via registered sale deeds in 1984, and relevant mutations were sanctioned accordingly---During proceedings of the suit the contesting defendants filed application under section O. VII, R. 11 of C.P.C. which was disposed of by the Trial Court by completely ignoring the third party rights and questions of waiver, acquiesce and limitation---Being aggrieved of the Trial Court order the contesting respondents preferred civil revision petition under S. 115, C.P.C. which was allowed vide the impugned decree and consequently the plaint was rejected being barred by limitation---Held: It was not in all cases of inheritance that the question of limitation became irrelevant---In various claims of inheritance brought by female legal heirs against their brothers/male heirs, the question of limitation could not be ignored in every such case and such question of limitation was dependent upon facts and circumstance of each case---The impugned gift deed was challenged by the petitioner/plaintiff on 24.11.2015, after 34 years of the impugned gift deed and 06 years after the death of Mst. "SB" (real sister of respondents Nos. 7-10)--- T he present petitioner/ plaintiff had not inherited anything qua his claim on the basis of his relationship with his deceased mother Mst. "SB" as she did not leave behind any inheritance with respect to the suit property---Not only was the impugned gift deed not challenged within her lifetime, the subsequent transactions of sales to third parties, evidenced by registered instruments were not challenged either---If a predecessor did not challenge a transaction in his/her lifetime, which transaction purported to deprive the predecessor of his/her share and third party rights had been created, simple claim on the basis of inheritance would not absolve the question of limitation---The lack of challenge by the donor within the lifetime was fatal and the bar of limitation would accordingly apply---The question of limitation could not be dubbed irrelevant in every claim of inheritance---Only in the cases of exceptional facts, the question of limitation had not been treated as a statutory bar against the claims of inheritance---Those exceptional cases may be summed up in the following terms: i. Cases filed by female heirs, within their lifetime, claiming fraud and misrepresentation played against them qua the immoveable property left behind by their predecessor in interest; ii. Cases where it is pleaded and proved that the deprived female heir(s) were being paid some proportionate share from the income/lease of the immoveable property in question; iii. Cases where a co-sharer has successfully pleaded and proved that the rival heir or co-sharer was in deemed possession of immoveable property on behalf of all other heirs/siblings; iv. Cases where no third-party rights have been created in the immoveable property, which is/was subject matter of undisputed inheritance; v. Cases where the elements of acquiescence and waiver are absent on the part of the claimant legal heir or his/her predecessor in interest---The question of limitation could neither be ignored in every claim based on purported rights of inheritance nor it was permissible for the litigants to lay a statute barred challenge by couching the relief in the form of an inheritance claim---However, under the few exceptions, where a female was deprived of her share in the immoveable property of her predecessor, limitation would not be a question against her claim of inheritance where the female had successfully pleaded all the ingredients of fraud being played upon her while sanctioning the inheritance mutation by excluding her from inheritance---The limitation would not be an obstacle in the case of inheritance as where the fact of claimant lady being deprived from the inherited property by way of impugned mutation was concealed from her, however,she pleaded and proved that she was being paid her share of income from the property and once the same was denied, she brought the suit within her lifetime---A claim of inheritance must cross the bridge of limitation, waiver and acquiescence---An unchecked tendency of encouraging a relief in the guise of inheritance was not warranted under the law, particularly when the property in issue changed hands and the slumber of a purported claimant of inheritance crystalized valuable rights in favour of third parties---The encouragement of such claims and long drawn trials in statute barred suits was counter productive for genuine and bona fide claims of female heirs---In the instant case, predecessor in interest of the petitioner/plaintiff (Mst. "SB") never voiced any grievance against the impugned mutation; even on her demise in 2009, her legal heirs kept a mum for almost six years despite being resident of same village, and suddenly woke up from slumber and filed the suit in November 2015, which was not permissible under the law---There was no substance in the petition which was dismissed, in circumstances. Muhammad Rustam and another v. Mst. Makhan Jan and others 2013 SCMR 299; Mushtaq Ul Aarifin and others v. Mumtaz Muhamamd and others 2022 SCMR 55; Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others PLD 2014 SC 167; Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs PLD 2011 SC 657; Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446; Ghulam Ali v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Salamat Ali and others v. Muhammad Din and others PLD 2022 SC 353; Syed Kausar Ali Shah and others v. Syed Farhat Hussain Shah and others 2022 SCMR 1558; Abdul Haq and another v. Mst. Surrya Begum and others 2002 SCMR 1330; Taj Muhammad Khan through L.Rs. and another v. Mst. Munawar Jan and 2 others 2009 SCMR 598; Saadat Khan and others v. Shahid-Ur-Rehman and others PLD 2023 SC 362; Shabla and others v. Ms. Jahan Afroz Khilat and others 2020 SCMR 352; Mohammad Boota (Deceased) through L.Rs., and others v. Mst. Fatima daughter of Gohar Ali and others 2023 SCMR 1901 and Noor Din (Deceased) through LRs v. Pervaiz Akhtar and others 2023 SCMR 1928 rel. (b) Civil Procedure Code (V of 1908)--- ----O. VII, R. 11---Limitation Act (IX of 1908), S.3---Qanun-e-Shahadat (10 of 1984), Art.100---Gift---Inheritance---Rejection of plaint---Plaint barred by law---Recording of evidence---Scope---Plaint that is clearly barred by limitation on its face must be rejected summarily---Duty of courts to act suo motu on limitation---Frivolous and fictitious claims to be nipped in the bud at the outset---Limitation runs even against void order---Presumption of authenticity attached to 34 year old gift deed---When the plaint is barred by any law on the face of it, recording of evidence would be a futile exercise and would amount to encouraging the abuse---Where on the plain reading of the plaint, it can be clearly seen that the suit is patently barred by limitation, no evidence is required---To plead that a plaint cannot be rejected because of the suit being barred by limitation/law, without recording evidence, is to plead against the mandate of law as contained in O. VII, R. 11 C.P.C., which essentially requires the court to reject the plaint which appears from its contents to be barred by limitation---Aggrieved person has to pursue his legal remedies with diligence and if a suit is beyond limitation, the delay of each and every day consumed for approaching the court beyond the period of limitation has to be explained---In the instant case the plaint on the face of it failed to explain the delay of a period of 34 years---The contents of the plaint failed to set up a case in a manner which rendered the question of limitation as a mixed question of law and fact---Mere reading of the contents of the plaint made it abundantly clear that it was statute barred and was liable to be dismissed in terms of O. VII, R. 11, C.P.C without employing valuable judicial resources and time of the Trial Court---By specifically incorporating the provision in terms of O. VII, R. 11, C.P.C, the legislature has empowered the court with an independent suo motu and sua sponte power to examine the plaint by using its wisdom---The courts always nip a frivolous suit in the bud, by rejecting such frivolous, fictitious and untenable claims in order to retain courts' docket and time for more serious claims---Non-actionable plaint or suit is a non-starter and in the interest of administration of justice and good judicial governance, it is best if such plaints are dismissed at the earliest---Keeping in view the mandatory provision of S. 3 of the Limitation Act, 1908, it is duty of every court and forum itself to look into the question of limitation irrespective of the fact whether any objection in this regard has been raised or not---Limitation runs even against a void order and a void order too has to be challenged within limitation---In the instant case, there was no justification at the outset merely by considering the averments of the plaint to overlook the delay of 34 years---When Mst. "SB" did not challenge the impugned gift deed in her life time despite third party transfers through registered deeds, petitioner/plaintiff had no right to claim inheritance of Mst. "SB"---Under Art. 100 of Qanun-e-Shahadat, 1984 a presumption was attached to the impugned gift deed which was 34 years old document at the time of its challenge before the Trial Court---In the instant case, predecessor in interest of the petitioner/plaintiff (Mst. "SB") never voiced any grievance against the Impugned mutation; even on her demise in 2009, her legal heirs kept a mum for almost six years despite being resident of same village, and suddenly woke up from slumber and filed the suit in November 2015, which was not permissible under the law---There was no substance in the petition which was dismissed, in circumstances. Agha Syed Mushtaque Ali Shah v. Mst. Bibi Gul Jan and others 2016 SCMR 910; Fatima Moeen v. Additional District Judge, Sheikhupura 1992 SCMR 1199; Mst. Gul Nisa v. Muhammad Arif 1996 SCMR 1239; Haji Abdul Sattar v. Farooq Inayat 2013 SCMR 1493; Irshad Ali v. Sajjad Ali PLD 1995 SC 629; Muhammad Afzal v. Muhammad Hayat 1994 SCMR 12; Haji Abdul Karim and others v. Messers Florida Builders Pvt. Ltd . PLD 2012 SC 247; Saqib Ali v. Government of Punjab and others 2023 PLC (C.S.) 310; Shahin Shah v. Government of Khyber Pakhtunkhwa through Secretary Irrigation Department, Peshawar and others 2022 SCMR 1810; Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs PLD 2011 SC 657; Qaisar Mushtaq Ahmad v. Controller of Examination and others PLD 2011 SC 174; Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153; Ahsan Ali and others v. District Judge and others PLD 1969 SC 167; Syed Iftikhar Hussain v. Ijaz Ahmad Cheema and another 1996 SCMR 943; Dilmir v. Ghulam Muhammad and 2 others PLD 2002 SC 403; Haji Ghulam Rasul and others v. Government of the Punjab through Secretary, Auqaf Department, Lah. and others 2003 SCMR 1815; Almas Ahmad Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore 2006 SCMR 783; Muhammad Sami v. Additional District Judge, Sargodha and 2 others 2007 SCMR 621; Government of N.W.F.P. and others v. Akbar Shah and others 2010 SCMR 1408; Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212; Chief Engineer, Gujranwala Electric Power Company GEPCO; Gujranwala v. Khalid Mehmood and others 2023 PLC 65; Kiramat Khan v. IG. Frontier Corps and others 2023 SCMR 866; Abid Hussain v. Secretary, Ministry of Defence, Government of Pakistan through Chief of Air Staff, Islamabad 2021 SCMR 645; Muhammad Sharif and others v. MCB Bank Limited and others 2021 SCMR 1158; Haji Wajid v. Provincial Government through Secretary Board of Revenue Government of Balochistan, Quetta and others 2020 SCMR 2046; Ghulam Hussain Ramzan Ali v. Collector of Customs Preventive, Karachi 2015 PTD 107 = 2014 SCMR 1594; Ch. Shujaat Hussain and others v. Zafar Ahmed Qureshi and others 2014 SCMR 585; Messrs Blue Star Spinning Mills Ltd. v. Collector of Sales Tax and others 2013 SCMR 587; Evacuee Trust Property Board and others v. Mst. Sakina Bibi and others 2007 SCMR 262; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Government of Sindh through Advocate-General, Sindh, Karachi v. Masood Hussain and others 2002 SCMR 155; Ali Muhammad through Legal Heirs and others v. Chief Settlement Commissioner and others 2001 SCMR 1822; S.Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367; Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446; Abdul Haq and another v. Mst. Surrya Begum and others 2002 SCMR 1330 and Jamil Khatoon and others v. Aish Muhammad and others 2011 SCMR 222 rel. (c) Constitution of Pakistan--- ----Art.199---Constitutional jurisdiction of the High Court---Scope---The purpose of invoking Art. 199 of the Constitution is to advance justice, rectify legal wrongs, and protect rights---Constitutional petition is not a substitute for appeal or revision---While exercising jurisdiction under Art. 199 of the Constitution, in the matters arising from appellate or revisional orders, High Court should only be concerned with whether or not the courts below acted within their jurisdiction---If such a court has the jurisdiction to decide a matter, it is considered competent to make a decision, regardless of whether the decision is right or wrong, and even if the said decision is considered to be incorrect, it would not automatically render it as being without lawful authority so as to invoke High Court's Constitutional jurisdiction---The object of exercising jurisdiction under Art. 199 of the Constitution is to foster justice preserve rights and to right the wrong---The conversion of scope of exercise of constitutional jurisdiction into that of a second appeal or second revision has consistently been deprecated by the Supreme Court of Pakistan. Muhammad Hussain Munir v. Sikandar PLD 1974 SC 139; Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131; Hasan Din v. Hafiz Abdus Salam and others PLD 1991 SC 65; Mst. Mobin Fatima v. Muhammad Amin and 2 others PLD 2006 SC 214 and Secretary to the Govt. of the Punjab v. Ghulam Nabi and 3 others PLD 2001 SC 415 rel. Rana Muhammad Shahid Mahmood for Petitioner. Rana Ahmad Tayyab Shahid, for Respondents Nos. 1 and 6. Nemo for Respondents Nos. 2 to 5 and 7 to 16. Date of hearing. 23rd April, 2025.

Summary: (a) Balochistan Sea Fisheries Ordinance (IX of 1971)--- ----Ss. 3 & 9---Constitution of Pakistan, Art. 185 (3)---Illicit fishing---Constructive knowledge, principle of---Applicability---Fishing trawler, confiscation of---Petitioner sought release of his trawler and other fishing equipment on the plea that illegal fishing activity was done by his employees without his knowledge---Validity---Despite assertion of ignorance by petitioner, there was overwhelming evidence of illicit fishing on his vessel and the same was insufficient to absolve him of liability---Even if petitioner did not possess actual knowledge of certain facts or information, he was presumed to be aware of them as proprietor of the trawler---Such presumption was based on the fact that information was reasonably accessible to him and that he should have been aware of the facts in the light of his position, duty and circumstances---Petitioner was responsible for illegal actions of his employees as proprietor of trawler as a result of his failure to conduct reasonable background checks---Constructive knowledge was a critical legal principle that guaranteed accountability by assuming knowledge in a situation where it was reasonable to anticipate awareness---Petitioner did not file any application for release of trawler in question on superdari at trial stage, and likely was awaiting the outcome of trial at that time---Petition for leave to appeal was dismissed and leave to appeal was refused. (b) Maxim--- ----Qui sentit commodum, debet et sentire onus---Meaning---He who derives a benefit ought also to bear a burden. Raja Muhammad Farooq, Advocate Supreme Court for Petitioner. Syed Pervaiz Bukhari, State Counsel. Date of hearing: 14th April, 2025.

Summary: (a) Constitution of Pakistan--- ----Art. 199---Constitutional petition---Hajj Policy---Moavineen-e-Hujjaj---Criteria---Concealment of facts---Petitioner was aggrieved of rejection of his application to proceed on Haj in the capacity of Moavineen-e-Hujjaj for performing welfare duties on the basis of attaining qualifying marks---Validity---Petitioner submitted application without providing mandatory documents including NOC and medical fitness certificate, thereby concealing relevant facts---Petitioner was employee of an autonomous body which did not fall under administrative control of any Ministry or Division as per Rules of Business, 1973---Petitioner moved application after accepting all terms and conditions outlined in the advertisement and undertook to comply with all policies and instructions issued by authorities---Petitioner failed to point out any illegality or legal infirmity in the advertisement published by authorities warranting interference by High Court---Constitutional petition was dismissed, in circumstances. Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another 1997 SCMR 15; Qazi Abdul Jalil v. N.-W.F.P. Forest Development Corporation through Chairman and others 2010 SCMR 1933; Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1; Abdul Karim Nausherwani and another v. The State through Chief Ehtesab Commissioner 2015 SCMR 397; Inspector General of Police, Quetta and another v. Fida Muhammad and others 2022 SCMR 1583; Nazar Muhammad Waraich and 7 others v. Zonal Head, State Life Insurance Corporation of Pakistan, Paris Road, Sialkot and another 2010 PLC (C.S.) 701 and Hafiz Junaid Mahmood v. Government of Punjab and others PLD 2017 Lahore 1 distinguished. Dossani Travels (Pvt.) Ltd. and 4 others v. Messrs Travels Shop (Pvt.) Ltd. and others 2013 SCMR 1749; Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others v. Hayat Hussain and others 2016 SCMR 1021; Government of Khyber Pakhtunkhwa through Secretary Forest, Peshawar and others v. Sher Aman and others 2022 SCMR 406 and Vice-Chancellor Agriculture University, Peshawar and others v. Muhammad Shafiq and others 2024 SCMR 527 rel. (b) Constitution of Pakistan--- ----Art. 199---Constitutional jurisdiction of High Court---Policy matter---High Court under Art. 199 of the Constitution, can annul an order or a Policy framed by the Executive, if it is violative of the Constitution, law or is based upon mala fide. Mufariq Shah for Petitioner. Muhammad Zain Qazi, Assistant Attorney General along with Sheikh Akhtar Hussain, Deputy Assistant Director, Ministry of Religious Affairs, Directorate of Hajj, Lahore for Respondents.

Summary: (a) When title is acquired, construction raised on specific part of immovable property and the area is also urbanized then a party with title and possession cannot be disturbed by another party who have just been recorded as co-owners in the revenue record, which had earlier been maintained when the property was agriculture in nature. (b) In Pakistan, state does not guarantee title of lands and ownerships rights have mostly been left presumptive. Therefore, a dire need is existing for providing a legal regime for transferring title, in urban area.