Summary: Summary pending

Summary: Summary pending

Summary: 697Regular First Appeal (R.F.A) (Final Decree) 10975/25 The Province of Punjab & 2 Others Vs Sabir Ali etc Mr. Justice Malik Muhammad Awais Khalid 24- 02- 2025 2025 LHC 794 2026 YLR 178 (Lahore)

Summary: (a) Islamic law--- ----Will---Proof---Follower of 'Shia' sect---Relevant revenue record exhibited by one of the witnesses of plaintiff /respondent revealed that the deceased (father of respondent/lady-plaintiff) was the owner of the property-in-question---Respondent/plaintiff not only produced/exhibited the will-deed but also produced the scribe and marginal witnesses of the same (will-deed) as her witnesses---In said will-deed the deceased disclosed that he was follower of Shia sect and directed to conduct his funeral ceremony according to Shia sect and to burry him in a shia graveyard; he further directed that the respondent/plaintiff is his sole legal heir and his legacy will be devolved according to Shia sect---Petitioners/defendants were not able to shatter the evidence qua writing of the will-deed---As many as six witnesses produced by the respondent/plaintiff, including one who led the funeral prayer of deceased, remained consistent to the effect that the deceased was follower of Shia sect till his death---Respondent/plaintiff had proved on record that her father was follower of Shia sect and he validly scribed the will-deed---No mis-reading, non-reading or unlawful exercise of jurisdiction could be pointed out and both the Courts below had passed the impugned judgments/decrees after proper appreciation of the record/evidence, thereof the concurrent finding could be interfered with---Revision petition, being meritless, was dismissed in limine, in circumstances. (b) Maxim--- ----'Actori incumbit onus probandi'---Meaning and scope---He who asserts a fact must prove the same, which is based on latin maxim "onus probandi actori incumbit"---Mode of proof is the procedure by which the "facts in issue" as also "the relevant facts " have to be proved during the trial---In the present case, the petitioners/defendants were unable to produce medical record showing their assertion regarding disease of the deceased suffering from mouth cancer and that at the time of writing will deed, he was unable to talk---Revision petition was dismissed. (c) Islamic law--- ----Sect/sub-sect by birth, renouncing of---Scope and effect---Sect of the deceased---Proof---Inheritance---One of the witnesses produced by the respondent/plaintiff stated that he led the Janaza (funeral) prayer of deceased as per Shia sect---One of the witnesses of the petitioners/defendants (DW-1) stated that two funeral prayers of the deceased were offered; one, as pre Shia sect, and the other, as per Sunni sect led by a Maulvi (prayer leader)---On the request of said witness, prayer leader was summoned but he was abandoned---Subsequently, the prayer leader was examined as a Court Witness (CW-1), who stated in his statement that the deceased was follower of Shia sect and that he (prayer leader) had not led his Janaza (funeral) prayer---Two of the (six) witnesses of respondent/plaintiff admitted in their cross-examination that by birth the deceased was Sunni but that he (deceased) later on adopted Shia sect---Under Para 31 of Chapter 3 of Principles of Muhammadan Law, a Muhammadan male or female who has attained the age of puberty, may renounce the doctrines of the sect or sub-sect to which he or she belongs and adopt the tenets of the other sect or any other sub-sect and he or she will thenceforth be subject to the law of the new sect or sub-sect---Respondent/plaintiff had proved on record that her father was follower of Shia sect and he validly scribed the will-deed---No mis-reading, non-reading or unlawful exercise of jurisdiction had been pointed out and both the Courts below had passed the impugned judgments/decrees after proper appreciation of the record/evidence, thereof the concurrent finding could not be interfered with---Revision petition, being meritless, was dismissed in limine, in circumstances. (d) Islamic law--- ----Inheritance---Shia law---Principles---Shia Law of inheritance divides heirs into two groups, namely, (1) heirs by consanguinity, that is, blood relation, and (2) heirs by marriage, that is, husband and wife---Heirs by consanguinity are divided into three classes and each class is sub-divided into two sections---Para 88 of Chapter 8 of the principles of Muhammadan Law provided three classes of heirs; I (1) Parents; II (ii) Children and other lineal descendants h.l.s; II (i) Grandparents h.h.s. (true as well as false); II (ii) Brothers and sisters and their descendants h.l.s; III (i) Paternal and (ii) maternal, uncles and aunts of the deceased and of his parents and grandparents h.h.s, and their descendants h.l.s. Of three classes of heirs, first excludes the second from inheritance and second excludes third---In the present case, admittedly, the respondent/plaintiff was the only daughter of the deceased while he divorced his wife during his lifetime---Respondent (plaintiff/lady), being heir of first class, excluded the petitioners, who were the heirs of third class---Even otherwise, it is settled principle of Islamic Law that nearer in degree excludes the more remote, therefore, as per the pedigree table and the law, the petitioners were not only distant kindred of the deceased but also remoter in degree---No mis-reading, non-reading or unlawful exercise of jurisdiction had been pointed out and both the Courts below had passed the impugned judgments/decrees after proper appreciation of the record/evidence, therefore the concurrent finding could not be interfered with---Revision petition, being meritless, was dismissed in limine, in circumstances. Syed Ansar Hussain v. Syed Risalat Hussain and 10 others 1985 MLD 265 and Rasool (deceased) through L.Rs and 6 others v. Jano and 10 others 2021 MLD 1759 ref. Khalida Shamim Akhtar v. Ghulam Jaffar and another PLD 2016 Lahore 865 distinguished. Burhan Latif Khaisori for Petitioners. Nemo for Respondents (motion case). Date of hearing: 24th February, 2025.

Summary: Land Acquisition Act (I of 1894)--- ----Ss. 18 & 30---Civil Procedure Code (V of 1908), S. 47, O. XX1, Rr. 21, 23-A & O.XXVII, R. 8-A---Execution of decree---Objection---Appeal---Maintainability---Decretal amount, non-filing of---Appellant / authorities were aggrieved of dismissal of objections filed during execution proceedings---Validity---Exemption only applies when government or public officer is being sued for action done in their official capacity---While provision of O. XXI, R. 23-A, C.P.C. essentially states that if a judgment debtor wants to raise objection against execution of a decree, he must first deposit decretal amount in Court or provide security for its payment before his objections can be considered, meaning they cannot simply object without first providing financial assurance to Court---Provision of O. XXI, R. 23-A, C.P.C. applies when a judgment debtor wishes to dispute execution of a decree against him---High Court declined to interfere in execution proceedings---Appeal was dismissed, in circumstances. Najm Koreshi v. Chase Manhattan Bank now Muslim Commercial Limited, Lahore and others 2015 SCMR 1461; Muhammad Sadiq v. WAPDA PLD 2003 SC 290; Happy Family Associate through Chief Executive v. Messrs Pakistan International Trading Company PLD 2006 SC 226 and Nadeem Akhtar Tabasum v. Muslim Commercial Bank Limited and others 2014 SCMR 1371 rel. Masood Ahmed Khattak for Appellant. Ms. Syeda Rabia Sultana for Respondents. Date of hearing: 24th February, 2025. AURANGZEB, J.--- Through this First Appeal Against the Order under section 104 read with section 151 of the Code of Civil Procedure, 1908, the appellant has challenged the order of Additional District Judge-III, Abbottabad dated 07.01.2025 whereby the objection petition filed by judgment debtors under section 47 read with section 151 C.P.C. was dismissed. Deposit of decretal amount, etc--- An objection by the judgment debtor to the execution of a decree shall not be considered by the Court unless--- This rule is considering mandatory, meaning the Court cannot entertain objection unless the security requirement is not fulfilled. In the case of Najm Koreshi v. Chase Manhattan Bank now Muslim Commercial Limited, Lahore and others reported as 2015 SCMR 1461, the Hon'ble Apex Court has held that for interest under the Decree to be applied and calculated,, it is necessary that the base figure, that is, "decretal amount", is an ascertained or a readily ascertainable amount. The view that the expression "decretal amount" should be an ascertained sum finds support from the terms of Order XXI, Rule 23A, C.P.C. wherein for raising an objection to a decree, the judgment debtor must deposit or secure the "decretal amount" with the executing court. Likewise in Muhammad Sadiq v. WAPDA (PLD 2003 SC 290) it has been held that deposit in Court under Order XXI, Rule l, C.P.C. of money payable under a decree entitles a judgment debtor to the relief of suspension in the accrual of further interest. For a deposit to be made to avail the said relief it is necessary that the requisite amount is ascertained or readily ascertainable. Such a sum is the principal amount adjudged and the decretal amount. In the present case also such sum is the decretal amount upon which interest under the Decree is to accrue. In the case of Happy Family Associate throush Chief Executiye v. Messrs Pakistan International Trading Company reported as PLD 2006 SC 226, the Hon'ble Apex Court has held that it was unfortunate that some litigants attempt to frustrate decree/its execution by resorting to provisions of Ss.12(2) and 151, C.P.C., unnecessarily---Objection to execution by judgment-debtor could not be considered unless judgment-debtor had deposited decretal amount in Court or had furnished a security for its payment, under O. XXI, R. 23-A, C.P.C.---Both the Executing Court and High Court had correctly found that objections of defendant to execution of decree were liable to be dismissed for failure to comply with the provisions of O. XXI, R. 23-A, C.P.C., in spite of the order of Executing Court---Leave to appeal was refused. In the case of Nadeem Akhtar Tabasum v. Muslim Commercial Bank Limited and others reported as 2014 SCMR 1371, the Hon'ble Apex Court has held that mortgaged property was put to auction twice---First auction was set aside at the motion of the judgment-debtor and other objectors and re-auction was ordeled---Judgment-debtor was fully aware of the re-auction proceedings---Judgment-debtor could not challenge the auction on grounds that notice was sent to the incorrect address, as notice was also published in the newspaper---Part of decretal amount already paid by the judgment debtor was adjusted by the bank/decree holder towards the outstanding liability of the judgment debtor--- Appeal filed by judgment-debtor against judgment of Banking Court was rightly dismissed in limine by the High Court---Petition for leave to appeal was dismissed accordingly and leave was refused.

Summary: (Against the judgment dated 30.05.2019 passed in Cr.A No.129-T of 2013 with Murder Reference No. 01-T of 2013, by the Islamabad High Court Islamabad). Penal Code (XLV of 1860)--- ----Ss.302(b) & 302(c)---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Qatl-i-amd and terrorism---Re-appraisal of evidence---Right of self-defence---Accused was convicted for qatl-i-amd and was sentenced to death---Plea raised by accused was that he had acted in his right of self-defence---Validity---Only consideration for self-defence is that a person threatened with danger of injury should not exceed the limits fixed by law---This depends upon reasonable apprehension of danger to the person under particular circumstances of the case---Reasonableness of apprehension is a question of fact which depends upon weapon used, the manner of using it, the nature of assault or other surrounding circumstances---There were three fire shots on the person of deceased who was not holding any weapon---Accused exceeded his right of self-defence, therefore, provision of section 302(c), P.P.C., was not attracted---Supreme Court considering the mitigating circumstances, reduced the sentence of death to imprisonment for life and set aside conviction and sentence awarded under section 7(a) of Anti-Terrorism Act, 1997---Appeal was allowed. Ghulam Hussain and others v. The State and others PLD 2020 SC 61; Waris Ali and 5 others v. The State 2017 SCMR 1572; Faiz v. State 1983 SCMR 76; Sultan Khan v. Sher Khan PLD 1991 SC 520 and Shabbir Ahmad's case PLD 1995 SC 343 rel. Barrister Umer Aslam, Advocate Supreme Court along with Dawood Akhtar, brother of appellant for Appellant. Ms. Chand Bibi, Deputy Prosecutor General for the State. Date of hearing: 24th February, 2025.

Summary: (On appeal from the judgment dated 27.05.2013 of the Peshawar High Court, Peshawar passed in Civil Revision No. 1211 of 2011). Specific Relief Act (I of 1877)--- ----Ss. 8, 42 & 54--- Qanun-e-Shahadat (10 of 1984), Art.100---Suit for possession, declaration and partition---Thirty years old document---Presumption of genuineness---Appellant/plaintiff claimed to be owner of suit property on the basis of gift made by her aunt in his favour---Aunt of appellant/plaintiff was owner on the basis of dower deed, which was a thirty years old document---Suit was dismissed by Trial Court but Lower Appellate Court decreed the same in favour of appellant/plaintiff---High Court in exercise of revisional jurisdiction restored judgment and decree passed by Trial Court in favour of respondent/defendant---Validity---Dower deed which was more than thirty years old had presumption of genuineness, but such presumption was always rebuttable by the party questioning genuineness thereof---Unsuspicious character of a document, its proper custody and other circumstances are the foundation to raise presumption of its execution---If prima facie dispute to its execution and proper custody is raised then it becomes duty of Court to determine the question of its genuineness---Donor was unable to satisfy through reliable evidence that by virtue of a dower deed, title of house was conveyed to his aunt---It might have been several years old instrument but that alone could not succeed if doubt was created about genuineness of document---Corroborative evidence should have been made available before Trial Court and Lower Appellate Court---Supreme Court declined to exercise jurisdiction to re-appraise evidence for another view---Judgment exercised by Revisional Court and conclusion drawn was the outcome of evidence available on record---Supreme Court declined to interfere in the judgment and decree passed by Trial Court---Appeal was dismissed. Allah Ditta v. Aimna Bibi 2011 SCMR 1483 rel. Shah Faisal Nasapi, Advocate Supreme Court for Appellant. Zia-ur-Rehman Khan, Advocate Supreme Court for Respondents. Date of hearing: 24th February, 2025.

Summary: (Against the judgment dated 26.07.2018 of the Peshawar High Court, Abbottabad Bench passed in Cr.A. 106-A of 2011, M.R. 7-A of 2011). Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Re-appraisal of evidence---Double murder---Motive shrouded in mystery---Benefit of doubt---Accused was alleged to have committed murder of two persons---Trial Court convicted the accused and sentenced him to death---Validity---Prosecution failed to prove any motive in the matter---It had nowhere been stated that as to what prompted accused to kill two brothers as neither was there any enmity alleged between the parties, nor there was any report with regard to any scuffle which took place between them prior to the incident---Matter was shrouded in doubt and in such eventuality, it would be legally and factually justified not to confirm death sentence awarded by two Courts below---Supreme Court set aside conviction and sentence awarded to accused and by extended benefit of doubt, acquitted the accused of the charge---Appeal was allowed. Muhammad Hassan v. State 2024 SCMR 1427 rel. Sagheer Ahmed Qadri, Advocate Supreme Court for Appellant. Syed Kausar Ali Shah, Addl. Auditor General for the State. Dr. Babar Awan, Senior Advocate Supreme Court for Complainant along with Majid brother of the Complainant. Date of hearing: 24th February, 2025.

Summary: Specific Relief Act (I of 1877)--- ----Ss.42 & 54---Suit for declaration and injunction---Gift---Proof---Declaration before Land Reforms Authorities---Respondent/plaintiff claimed to be owner in possession of suit land on the basis of gift made in her favour by her deceased father---Suit was decreed by Trial Court in favour of respondent/plaintiff but Lower Appellate Court dismissed the same---High Court in exercise of revisional jurisdiction restored judgment and decree passed by Trial Court---Validity---At no material stage authorities and/or any sitting tenant disputed declaration made by deceased owner of land that he had gifted 909 acres of land, equivalent to 9,997 Produced Index Units ("PIUs") to his daughter---This was recognition of the gift by Land Reform Authorities that had resulted in deceased landlord escaping resumption of his land beyond 36,000 PIUs in favour of government---Other legal heirs/descendants of deceased land owner who were defendants in the suit had also not challenged such declaration dated 13-04-1959 and/or the document maintained by Land Reforms Authorities under which gift in favour of respondent/ plaintiff had been recognized and accepted---Declaration made by deceased land owner before Land Reforms Authorities was an admission as to the factum of gift in favour of his daughter who was a minor when the declaration was made---Supreme Court declined to interfere in judgment and decree passed by High Court---Appeal was dismissed. Qazalbash Waqf v. Chief Land Commissioner PLD 1990 SC 99; Muzammil Shah v. Deputy Land Commissioner, Mansehra PLD 2001 Pesh. 92; Syed Mohsin Naqvi v. Federal Land Commission 2010 YLR 3248; Kaneez Bibi v. Sher Muhammad PLD 1991 SC 466 and Riaz Ullah Khan v. Asghar Ali 2004 SCMR 1701 rel. Syed Amjad Shah, Advocate Supreme Court and Sh. Mahmood Ahmad, Advocate-on-Record for Appellants. Tahir Hussain Lughmani, Advocate Supreme Court for Respondents. Date of hearing: 24th February, 2025.

Summary: Specific Relief Act (I of 1877)--- ----Ss.42 & 54---Suit for declaration and injunction---Gift---Proof---Declaration before Land Reforms Authorities---Respondent/plaintiff claimed to be owner in possession of suit land on the basis of gift made in her favour by her deceased father---Suit was decreed by Trial Court in favour of respondent/plaintiff but Lower Appellate Court dismissed the same---High Court in exercise of revisional jurisdiction restored judgment and decree passed by Trial Court---Validity---At no material stage authorities and/or any sitting tenant disputed declaration made by deceased owner of land that he had gifted 909 acres of land, equivalent to 9,997 Produced Index Units ("PIUs") to his daughter---This was recognition of the gift by Land Reform Authorities that had resulted in deceased landlord escaping resumption of his land beyond 36,000 PIUs in favour of government---Other legal heirs/descendants of deceased land owner who were defendants in the suit had also not challenged such declaration dated 13-04-1959 and/or the document maintained by Land Reforms Authorities under which gift in favour of respondent/ plaintiff had been recognized and accepted---Declaration made by deceased land owner before Land Reforms Authorities was an admission as to the factum of gift in favour of his daughter who was a minor when the declaration was made---Supreme Court declined to interfere in judgment and decree passed by High Court---Appeal was dismissed. Qazalbash Waqf v. Chief Land Commissioner PLD 1990 SC 99; Muzammil Shah v. Deputy Land Commissioner, Mansehra PLD 2001 Pesh. 92; Syed Mohsin Naqvi v. Federal Land Commission 2010 YLR 3248; Kaneez Bibi v. Sher Muhammad PLD 1991 SC 466 and Riaz Ullah Khan v. Asghar Ali 2004 SCMR 1701 rel. Syed Amjad Shah, Advocate Supreme Court and Sh. Mahmood Ahmad, Advocate-on-Record for Appellants. Tahir Hussain Lughmani, Advocate Supreme Court for Respondents. Date of hearing: 24th February, 2025.