Summary: Ordinance of 1965 (Central Government Land and Building (Recovery of Possession) Ordinance 1965) & Act of 1977 Khyber Pakhtunkhwa (removal of encroachment of Public Property Act of 1977). The application of the petitioners/defendants is mainly based upon the provision of the Ordinance of 1965 and the grounds taken therein manifests that non-disclosure of cause of action improper valuation and affixation of the court fee have not been alleged in the application; thus the application of the petitioners under Order VII Rule 11 (1) (a) (b) and (c) could not be invoked. Even otherwise the contents of the plaint do disclose a cause of action and when the contents of the plaint were controverted through written statements on different legal and factual objections then the trial court has got ultimate jurisdiction to decide the fate of the suit. In so far as the bar of the suit under the Ordinance of 1965 is concerned suffice it to say that the plaintiffs have made reliance on the entries of the revenue papers and have sought declaration that to the extent of their owned and possessed property and in such an eventuality civil court of ultimate jurisdiction could try the suit and no such specific bar has been provided in the Ordinance of 1965. It is worth mentioning that the Ordinance of 1965 was repealed in 2021 by Federal Properties Public Properties; Removal of Encroachment Ordinance 2021 was promulgated providing a forum for determination of unauthorized possession but even within the lifetime of the Ordinance of 2021 no Tribunal was constituted for determination thereof. Neither the Ordinance of 2021 through its extension holds the field nor it converted into enactment and after the expiry of 120 days as extended later it has come to an end and when so the Ordinance of 1965 has been revived but alarmingly the Ordinance of 1965 provides no forum for determination of the issue of unauthorized person. It is not understandable that in the Ordinance of 1965 on one hand the jurisdiction of civil court was barred but on the other hand in the Ordinance there is no provision to address the issue of alleged unauthorized occupation.

Summary: Regular First Appeal Held: (i) Order XXXVII CPC deals with summary procedure and its Rule 2 is enabling provision which deals with the institution of summary suit. According to it summon of the suit is to be issued first and when the defendant appears he has to obtain leave from the Court to defend the suit. A detailed procedure for the appearance of the defendant is provided in Order XXVII Rule 3 CPC which shows that in the matter of grant of leave to defend with condition or without condition the Court has been given discretion in the matter of attaching condition to the grant of leave to defend. (ii) According to Rule 1 of Order XXXVII CPC summary procedure on negotiable instruments is meant for the High Court District Court and any other civil Court all summary suits are instituted upon bills of exchange hundies or promissory notes on presentation of the plaint in the form prescribed. The defendant cannot defend the suit unless he obtained leave to defend and in default of his obtaining such leave of his appearance and defence in pursuance thereof. The allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree. (iii) The provision of sub-Rule (2) of Rule 3 enables the Court that leave to defend may be given unconditionally or subject to such terms as to payment into Court giving security framing and recording issues or otherwise as the Court thinks fit. (iv) The failure of the appellant in submission of security bond a pre-condition for leave to defend amounts to default in obtaining leave to defend enabling the Court to pass a decree in favour of the plaintiff. (RFA dismissed)

Summary: Conviction upheld ---- (a) Penal Code (XLV of 1860)----S. 302(b)---Qatl-e-Amd (Murder)---Ocular testimony---Reliability---Scope---Conviction for murder based on eyewitness testimony---Principle---If the testimony of eyewitnesses is consistent, confidence-inspiring, and free from major contradictions, it is sufficient to sustain conviction even in the absence of corroborative evidence---In the present case, two eyewitnesses, who were real brothers of the deceased, consistently deposed against the accused, providing a coherent and natural account of the incident, including time, place, and weapon used---Held, that close relationship of the witnesses with the deceased does not automatically render their testimony unreliable in the absence of a proven motive for false implication---Conviction under S. 302(b) PPC upheld.Cited Cases:Asfandiyar v. The State 2021 SCMR 2009Muhammad Abbas v. The State 2023 SCMR 487Aman Ullah v. The State 2023 SCMR 723Imran Mehmood v. The State 2023 SCMR 795(b) Qanun-e-Shahadat Order, 1984 (P.O. 10 of 1984)----Art. 129(g)---Presumption against withholding of evidence---Scope---Where a party fails to produce evidence that is in its possession and relevant to the case, the court may draw an adverse inference---Accused failed to provide any material evidence to rebut the prosecution’s case or to prove mistaken identity, raising a presumption that such evidence, if produced, would not support his defence.(c) Penal Code (XLV of 1860)----S. 302(b)---Medical evidence and ocular account---Contradictions---Effect---Medical evidence is merely corroborative and cannot override a confidence-inspiring ocular account unless there is a clear contradiction regarding the nature of the injuries or the time of death---Minor discrepancies regarding the trajectory of bullets or wounds do not affect the prosecution’s case if eyewitness testimony is otherwise reliable---Held, that minor inconsistencies in medical reports do not create reasonable doubt when eyewitnesses have provided a direct, reliable, and consistent account of the murder.Cited Cases:Muhammad Iqbal v. Muhammad Akram 1996 SCMR 908Faisal Mehmood v. The State 2010 SCMR 1025Muhammad Ilyas v. The State 2011 SCMR 460(d) Criminal Procedure Code (V of 1898)----S. 544-A---Compensation to heirs of deceased---Quantum---Scope---Trial Court imposed compensation of Rs. 100,000 on the accused to be paid to the heirs of the deceased, with an additional six months’ imprisonment in case of default---Held, that compensation awarded was in accordance with law and requires no interference.Disposition: Criminal petition dismissed. Conviction under S. 302(b) PPC upheld. Sentence of life imprisonment maintained, along with compensation to legal heirs of the deceased.

Summary: (a) Financial Institutions (Recovery of Finances) Ordinance, 2001----S. 9---Suit for recovery of finance---Liability of partners and guarantors---Determination of outstanding amount---Scope---Plaintiff Bank instituted suit under S. 9 of the Ordinance for recovery of Rs.118,998,622.14/- along with markup, costs, and cost of funds due to default on financial facilities extended to Defendant No.1 (a partnership firm)---Defendants contested liability, arguing that certain partners had been wrongly impleaded and that the Plaintiff Bank’s claims included unauthorized markup beyond facility expiry---Held, that Defendants No. 4 and 5 had executed personal guarantees securing the liabilities of Defendant No.1 and its associated entities---Letter relied upon by Defendants to claim waiver of guarantee conditions (dated 02.02.2011) was never acted upon and did not absolve them from liability---Supreme Court precedent established that an unimplemented variation in contract terms does not release guarantors from original liability---Amount recoverable limited to Rs.82,088,376/- after deduction of excess markup charged beyond facility expiry.Cited Cases:• Industrial Development Bank of Pakistan v. Hyderabad Beverage Co. (Pvt.) Ltd. 2016 SCMR 451• Mian Aftab A. Sheikh v. Messrs Trust Leasing Corp. Ltd. 2003 CLD 702(b) Civil Procedure Code (V of 1908)----O. VI, R. 17---Amendment of pleadings---Scope in financial litigation---Defendant sought amendment in application for leave to defend (PLA), introducing new evidence regarding waiver of guarantee conditions by the Plaintiff Bank---Held, that amendments which supplement rather than contradict original pleadings can be allowed under O. VI, R. 17, CPC, even in financial suits under the Ordinance---Amendment allowed to place relevant letters on record, but no substantive relief granted as waiver was never acted upon.Cited Cases:• Messrs Habib Bank Ltd. v. Messrs Bela Automotives Ltd. 2010 CLD 1243• Messrs Maroof Knitwear (Pvt.) Ltd. v. Allied Bank of Pakistan Ltd. 2003 CLD 1610(c) Banking Law---Pledged Stock and Fiduciary Duty----Obligation of borrower to manage pledged assets---Effect of expired stock---Defendants argued that Plaintiff Bank was responsible for expiry of pledged pesticide stock, causing financial losses---Held, that in pledge transactions, the creditor holds only constructive possession while the borrower maintains physical custody and operational control---Defendants failed to replace expired stock despite Bank’s requests, eroding its value and leading to default---Plaintiff Bank justified in initiating criminal proceedings against Defendants for mismanagement and fraud.Cited Cases:• World Trans Logistics v. Silk Bank Ltd. 2016 SCMR 800• Habib Metropolitan Bank Ltd. v. Nazir Rice Mills (Pvt.) Ltd. 2020 CLD 796(d) Banking Law---Financial Default and Execution of Decree----S. 19, Financial Institutions (Recovery of Finances) Ordinance, 2001---Automatic conversion of decree into execution---Failure to pay decreed amount within thirty days results in execution under S. 19(1) of the Ordinance without requiring a separate execution petition---Court granted decree for Rs.82,088,376/- against Defendants jointly and severally, with costs of suit and cost of funds from date of default (31.07.2011) till realization---Defendants’ liability affirmed based on financial documents and admissions in pleadings---Decree to automatically stand converted into execution proceedings if unpaid.Cited Cases:• Messrs Habib Bank Ltd. v. Messrs Bela Automotives Ltd. 2010 CLD 1243Disposition: Suit decreed in favor of Plaintiff Bank for Rs.82,088,376/- with costs and cost of funds; decree to convert into execution if unpaid within 30 days.

Summary: (a) Penal Code (XLV of 1860)----S. 302(b), 109 & 34—Code of Criminal Procedure (V of 1898), Ss. 544-A & 382-B—Murder of father—Conviction based on testimony of related witnesses—Change of stance and inconsistencies—Unexplained abscondence—Recovery of weapon after delay—Scope of benefit of doubtPetitioner was accused of murdering his father by firing upon him and inflicting stab wounds. The conviction was primarily based on the testimonies of the deceased’s sister (PW-3) and nephew (PW-8), who claimed to have witnessed the incident while returning from a wedding ceremony. Supreme Court held that the credibility of said ocular account was doubtful, as no independent witness was cited despite presence of 100-150 people at the event, and the venue of the marriage was not marked in the site plan. The delay of ten months in recovery of the churi, coupled with absence of evidence regarding its preservation, rendered the forensic report unreliable. The recovery of pistol was returned with a negative FSL report. Court further observed that inflicting both firearm and knife injuries indicated involvement of more than one assailant, but prosecution’s case remained silent on this point. Acquittal of co-accused, previously alleged to be part of a conspiracy, further weakened prosecution’s version. Mere abscondence of accused could not cure defects in the prosecution's case. Supreme Court held that the charge was not proved beyond reasonable doubt—Conviction and sentence set aside—Petitioner acquitted by extending benefit of doubt.Cited Cases:• Salman Akram Raja v. Government of Punjab 2013 SCMR 203• Ali Haider @ Pappu v. Jameel Hussain PLD 2021 SC 362• Basharat & another v. The State 1995 SCMR 1735• Rohtas Khan v. The State 2010 SCMR 566• Muhammad Khan v. The State 1999 SCMR 1220(b) Criminal trial—Ocular evidence—Presence at crime scene not established—Failure to examine independent witnesses—Testimony of related witnesses found unreliableProsecution’s case hinged on testimonies of related witnesses who claimed to have seen the petitioner attacking the deceased. Supreme Court observed that neither the presence of these witnesses at the matrimonial ceremony was proven, nor were independent witnesses examined to corroborate their account. Discrepancies in their statements and contradictions regarding direction of escape of accused created further doubts. The absence of Ahmad Khan, the host of the matrimonial ceremony, or other guests as witnesses, was noted as a serious omission. Court held that when foundational facts are not substantiated, reliance on related witnesses without corroboration is unsafe—Testimonies disbelieved.(c) Forensic evidence—Delayed recovery—Preservation of evidence—Legal and scientific standards—Weight of DNA and serological evidenceCourt reiterated that while forensic reports may have corroborative value, their admissibility and evidentiary weight depend on timely collection and proper preservation. Churi allegedly used in offence was recovered nearly ten months post-incident, with no evidence regarding storage or documentation. Although PFSA returned a positive blood report, Supreme Court held that such belated recovery failed to meet the legal threshold for reliability. Pistol allegedly used was returned with a negative forensic report. The Court placed reliance on precedent highlighting that DNA and forensic tools are only effective if collected and preserved as per proper scientific standards—Evidence deemed untrustworthy due to procedural lapses.Cited Cases:• Salman Akram Raja v. Government of Punjab 2013 SCMR 203• Ali Haider @ Pappu v. Jameel Hussain PLD 2021 SC 362• Basharat & another v. The State 1995 SCMR 1735

Summary: (a) Civil Procedure Code (V of 1908), S. 12(2)—Specific Relief Act (I of 1877), S. 12—Constitution of Pakistan, Art. 199—Consent Decree—Fraud—Misrepresentation—Want of JurisdictionConsent decree obtained in suit for specific performance—Application under S. 12(2), C.P.C. filed by third party alleging fraud and misrepresentation—Attorney (respondent No.2) had no legal authority to execute agreement to sell or record statement on behalf of petitioner or respondent No.4-Society—Power of attorney relied upon by respondent No.2 had become ineffective upon death of one of the joint executants—Decree passed based on unauthorized statement and compromise—Held, authority to enter into agreement to sell must stem from valid power of attorney; agency terminated upon death of joint principal as per S. 201 of Contract Act, 1872—Lower courts failed to appreciate misrepresentation and dismissed application under S. 12(2), C.P.C. without properly addressing jurisdictional defect—Such decree liable to be annulled.----Cited Cases:Imamn Din v. Bashir Ahmad (PLD 2005 SC 418)Sitara v. Sohrab (PLD 2014 Lahore 179)(b) Contract Act (IX of 1872), S. 201—Termination of agency—Effect of death of principal on power of attorneyWhere power of attorney is jointly executed and one of the principals dies, agency stands terminated unless contrary intention is evident—Subsequent actions of attorney, including execution of agreement or giving statement in court, are without legal effect—Held, joint agency cannot survive death of any principal unless instrument expressly provides otherwise—Execution of agreement and consent statement after death of co-executant held to be void.(c) Constitutional Jurisdiction—Art. 199—Concurrent findings of fact—Scope of interference:Though courts ordinarily refrain from interfering with concurrent findings, constitutional jurisdiction can be invoked where such findings are perverse, based on misreading of record or tainted with illegality—Held, courts cannot perpetuate illegality under guise of respecting concurrent findings—Findings based on patent illegality or fraud are liable to be set aside.(d) Civil Procedure Code (V of 1908), S. 12(2), S. 141—Remedy for judgment obtained by fraud or misrepresentation:S. 12(2), C.P.C. introduced to provide remedy for annulment of judgments/decrees obtained through fraud, misrepresentation or lack of jurisdiction—Application under S. 12(2) to be decided in accordance with suit procedure per S. 141, C.P.C.—Court empowered to review and annul its own decree tainted with illegality—Held, decree in question was obtained by unauthorized person through misrepresentation and was thus void.----Disposition:Writ petition allowed—Impugned judgments of Civil Judge and Additional District Judge set aside—Application under S. 12(2), C.P.C. accepted—Consent decree declared illegal and without lawful authority.

Summary: (a) West Pakistan Border Area Regulation, 1959 (Regulation No.9 of 1959) read with Punjab Amendment Ordinance, 1981----Para 10(a)---Jurisdiction of Border Area Committee---Scope---Cancellation of land transfer---NOC requirement---Held, powers under Para 10(a) extend only to scrutiny and cancellation of allotments where original allottee was ineligible---No authority vested to cancel subsequent transfers made after issuance of NOC by competent authority---Once proprietary rights were transferred and mutation sanctioned, legal heirs acquired title---Cancellation of subsequent transfers not sustainable where NOC had been obtained for 400 Kanals and impugned 130 Kanals sold without naming specific vendees, but within the sanctioned area---Border Area Committee lacked jurisdiction to cancel transfer from legal heirs to bona fide purchasers without declaring them “undesirable” through competent inquiry.(b) West Pakistan Border Area Regulation, 1959 (Regulation No.9 of 1959)----Schedule-III, Condition No. 11---Transfer of land without NOC---Effect---Held, requirement of NOC is primarily for original allottees, not subsequent purchasers---Where no declaration is made that subsequent transferees are “undesirable persons” under national security criteria, their property rights cannot be arbitrarily cancelled---Border Area Committee’s action deemed coram non judice and violative of Articles 23 & 24 of the Constitution.(c) Constitution of Pakistan----Arts. 23 & 24---Right to property---Acquisition and disposal of land---Held, citizens have constitutional protection to acquire, hold and dispose of property---Where land acquired through valid mutations by bona fide purchasers was cancelled without proving any threat to national security or declaring them undesirable, such cancellation violates constitutional guarantees.(d) Practice and Procedure----Remand---Scope---Where findings of administrative authority are without lawful jurisdiction and not supported by proper inquiry, High Court may remand matter for fresh adjudication---Border Area Committee directed to conduct specific inquiry to determine if petitioners are “undesirable persons” and proceed accordingly.(e) Interpretation of Letters and Scheme Provisions----GHQ Letter dated 19.05.1997---Ex-post-facto sanction---Held, GHQ allowed legal heirs/allottees to apply for ex-post-facto NOC where past sales occurred without permission---Committee failed to consider this directive before cancelling land---Remanded to apply the letter in petitioners’ case.Disposition:Writ Petition allowed. Impugned order dated 29.09.2017 set aside. Matter remanded to Border Area Committee for fresh decision in accordance with law and specific findings on whether petitioners are “undesirable persons.”Cited Cases:Ch. Zafar Hussain v. Border Area Committee (2012 MLD 1538)Muhammad Sharif v. Border Area Committee (NLR 2002 Civil 250)Subedar Sardar Khan v. Muhammad Idrees (PLD 2008 SC 591)Cited Legislation & Documents:West Pakistan Border Area Regulation, 1959Punjab Amendment Ordinance, 1981GHQ Letter dated 19.05.1997Constitution of Pakistan, Articles 23 & 24

Summary: (a) Specific Relief Act (I of 1877)----S. 21(c)---Specific performance---Agreement to sell---Uncertainty in terms---Measurement and description of property not specified---Scope---Petitioner filed suit for specific performance of agreement to sell dated 21.04.2007---Agreement lacked measurement, khasra numbers, or precise description of land subject to sale---Held, under S. 21(c), a contract whose terms cannot be determined with reasonable certainty cannot be specifically enforced---Agreement failed to describe the property with clarity required by law---Plaintiff’s attorney failed to recall khasra number, reinforcing uncertainty---Trial Court rightly refused specific performance on this ground.(b) Specific Relief Act (I of 1877)----S. 22---Discretionary relief---Specific performance not an absolute right---Trial Court's discretion---Scope of interference---Held, relief of specific performance is discretionary and not automatic even where contract is lawful---Trial Court exercised discretion judicially and in accordance with settled principles by refusing the decree---First Appellate Court upheld this exercise of discretion---Held further, second appellate Court will not interfere with such discretion unless found perverse or against law or judicial usage---Discretion exercised in present case found to be sound, reasonable, and untainted by legal error.(c) Civil Procedure Code (V of 1908)----S. 100---Second appeal---Concurrent findings---Scope---Held, where both Trial Court and First Appellate Court have concurrently refused specific performance on sound legal principles, second appellate jurisdiction is limited and interference unwarranted unless findings are perverse or in violation of law---No such infirmity found in concurrent judgments below---Appeal dismissed.Disposition: Second appeal dismissed; concurrent findings upheld; no order as to costs.Cited Cases:• Muhammad Miskeen v. District Judge Attock and others 2020 SCMR 406• Sheikh Akhtar Aziz v. Mst. Shabnam and others 2019 SCMR 524• Mian Muhammad Saleem and others v. Mst. Hameeda Begum and others 1987 SCMR 624• Naseer Ahmed Siddique through Legal Heirs v. Aftab Alam and another PLD 2011 SC 323Cited Statutes:• Specific Relief Act (I of 1877), Ss. 21(c), 22• Civil Procedure Code (V of 1908), S. 100

Summary: (a) Criminal Procedure Code (V of 1898) – Section 497 – Pre-arrest bail – Essential elements of criminal breach of trust not made out – Nature of dispute found to be of family nature The FIR alleged that the complainant’s father gave two golden rings and Rs.190,000/- to the petitioners at the time of their marriage with the complainant and his brother. However, these items were in the nature of gifts rather than property entrusted under a fiduciary obligation. For an offense under Section 406 PPC to be established, there must be entrustment of property and subsequent dishonest misappropriation or violation of trust, which was absent in this case. The allegations in the FIR suggested a family dispute rather than a criminal offense. Reliance placed on Shahzada Qaiser Arfat alias Qaiser v. The State (PLD 2021 SC 708). (b) Criminal Procedure Code (V of 1898) – Pre-arrest bail – Malafide intent inferred from weak prosecution case Although the prosecution argued that the petitioners failed to establish malafide intent or ulterior motives behind their implication, the court observed that malafide can be inferred from weak and doubtful circumstances rather than requiring direct evidence. The substitution of a bailable offense (Section 420 PPC) with a non-bailable offense (Section 406 PPC) without substantive justification raised concerns about prosecutorial bias. Weaker the prosecution’s case, the stronger the inference of malafide. Reliance placed on Haji Ghani v. The State (PLD 1988 Lahore 507) and Rear Admiral (Rtd.) M.I. Arshad v. The State (1988 P.Cr.LJ 586 Karachi). (c) Criminal Procedure Code (V of 1898) – Pre-arrest bail – Protection of female accused – No recovery required Both petitioners were women with no previous criminal record. The court emphasized that social norms discourage placing female accused in police custody when their arrest is unnecessary for investigative purposes, particularly when no recovery is required. Arresting the petitioners would cause them irreparable harm and serve no prosecutorial purpose. Disposition: Ad-interim pre-arrest bail confirmed. Petitioners admitted to bail subject to furnishing surety bonds of Rs.200,000/- each to the satisfaction of the trial court. Observations made in the order are tentative and shall not influence the trial.

Summary: Criminal Procedure Code (V of 1898)--- ----Ss. 173, 190 & 561-A---Penal Code (XLV of 1860), Ss. 302, 114, 148 & 149---Inherent jurisdiction of High Court---Quashing of order---Qatl-i-amd, abettor present when offence committed, rioting armed with deadly weapons, unlawful assembly---Accused-applicants were aggrieved of order passed by Judicial Magistrate through which he did not agree with the findings of Investigating Off icer declaring them innocent and placing their names in column No. 2 of the challan-sheet---Validity---Admittedly opinion of Investigating Officer was not binding upon the Courts as the same was ipse dixit and the Magistrate was competent to agree or disagree with the opinion of police while exercising his administrative jurisdiction on a report submitted before him within the meaning of Ss.170 & 173, Cr.P.C.---Defence plea of the applicants regarding excluding them from commission of offence was no bar for conducting trial and it was a pure prerogative jurisdiction of Trial Court to give weight of evidence as led by both sides---Officer in charge must use such powers not in mechanical manner and must exercise the same with care and caution to satisfy himself that to release on bail would not cause any prejudice to the prosecution as in instant matter the findings of Investigating Officer might have caused prejudice and even the complainant himself disowned version of Investigating Officer---Investigating Officer exercised his powers without following the law as prescribed under Rule 26.21 of Police R. 1934, that there was a bar to release the accused who were involved in offence which were punishable with death or transportation for life and that FIR pertained to S.302 P.P.C and its punishment was death and/or imprisonment for life---Record reflected that applicants were nominated in commission of offence with their specific role with corroborating piece of evidence by supporting witnesses as well as medical evidence---So far as the independent witnesses were concerned, the credibility of those witnesses must be carried and given weight by the Trial Court at the time of trial as the applicants had remedy to produce them in their evidence at the time of recording their statements---Criminal miscellaneous application was dismissed being devoid of any legal substance. Muhammad Rizwan v. The State and others 2018 MLD 410; Khalida Bibi v. Nadeem Baig PLD 2009 SC 440; Anwar Shamim and another v. The State 2010 SCMR 1791 and Naeem Akhtar and another v. Learned Civil Judge and Judicial Magistrate and 5 others 2018 MLD 1173 ref. PLD 2009 SC 440 rel. Mohammad Ali Naper for Applicant. Mohammad Ali Dayo for the Complainant. Syed Sardar Ali Shah, Addl. P.G Sindh for the State.