2010 C L C 246

[Lahore]

Before S. Ali Hassan Rizvi, J

KARAM DIN through L.Rs. and others----Petitioners

Versus

MUHAMMAD IDREES----Respondent

Civil Revision No.474 of 2005, decided on 20th April, 2009.

(a) Civil Procedure Code (V of 1908)---

----O. VIII, Rr.4. & 5---Non-specific, but evasive denial of a fact--Effect---Relevant

assertion made by other side would be deemed to have been admitted.

(b) Qanun-e-Shahadat (10 of 1984)---

----Arts. 117 & 118---Civil matter---Burden of proof---Scope---Entire evidence having

been recorded, burden of proof would lose its importance and Court would have to
examine evidence in its entirety.

(c) Qanun-e-Shahadat (10 of 1984)---

----Arts. 102 & 103---Execution of agreement admitted---Effect---Any oral evidence

against terms of such agreement would stand excluded from consideration.

(d) Islamic Law---

---- `Areeat'---Meaning.

Mahomedan Law by Dr. M.A. Manan (Pakistan Edition) ref.

(e) Specific Relief Act (I of 1877)---

---Ss. 42 &54---Suit for declaration and permanent injunction by a person not being an
owner of property, but only having possessory rights thereof---Maintainability---Section
42 of Specific Relief Act, 1877 did not postulate that declaration in respect of right to any
property could be sought only by its owner---Position of a person in possession would be
stronger---Possessory rights of a person would confer on him a legal status, except
against true owner, if any, which would be equivalent to legal character as envisaged
under S.42 of Act, 1877---Such suit was maintainable---Illustration.

Hyderabad Municipal. Corporation v. Messrs Fateh Jeans Ltd. 1991 MLD 284 rel.

Malik Abdul Wahid and Humma Abreen for Petitioner.

Ata-ul-Mohsin for Respondent.

Date of hearing: 15th April, 2009.

JUDGMENT

S. ALI HASSAN RIZVI, J.--- Muhammad Idrees plaintiff/respondent had filed a civil
suit on 10-6-1998 seeking a declaration that he was owner in possession of house built on
4 Marlas situate in Abadi Mauza Ahla, Tehsil and District Mandi Baha-ud-Din and that
the defendants Karam Din, . his wife Mst. Aashi, and his two sons Ashfaq Ahmad and
Intezar Hussain alias Ahmad Yar, had no right or authority, whatsoever, to interfere with
his peaceful possession. As a consequential relief, the defendants were sought to be
permanently restrained from casting any clouds on the title of the plaintiff or from
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interfering with his peaceful possession in any manner, whatsoever. It was averred in
para.1 of the plaint that the defendants had two and a quarter years before, taken the
afore-said site as Areeat for construction of a Kurh (shed) for tethering the cattle and that
a written agreement dated 26-3-1996 was executed between him and defendant No.3,
Ashfaq Ahmad.

2. The suit was resisted by the defendants/revision petitioners vide their written statement
dated 10-3-1999. It was claimed that they had filed a civil suit which was pending in the
Court of Mr. Muhammad Shafiq Butt, then learned Civil Judge, Mandi Baha-ud-Din and
that the present :.;at was a counterblast. They also pleaded that they were in possession
since 1976. As to the afore-mentioned agreement, the execution thereof was denied.

3. During the pendency of the suit, Karam Din, defendant No.1 had died and his legal
heirs, which are now the revision petitioners were substituted vide amended plaint dated
13-11-1998.

4. The learned Civil Judge seized of the suit put the parties on trial on the following
issues:---

"Issues:

(1) Whether the plaintiff has not come to the Court with clean hands? OPD

(2) Whether the plaintiff has filed the suit just to harass the defendants, hence the
defendants are entitled to special costs Rs.20,000 under section 35-A of C.P.C.? OPD

(3) Whether the plaintiff has no cause of action to file this suit? OPD

(4) Whether the plaintiff is entitled to decree for declaration as prayed for? OPP

(5) Relief.

5. On conclusion of the trial Mr. Mahmood Azam Warraich, learned Civil Judge Mandi
Baha-ud-Din, dismissed the suit vide judgment and decree dated 28-1-2000 mainly on the
ground that Muhammad Idrees the plaintiff/respondent was not the owner of the suit
property.

6. In appeal, the findings recorded by the learned trial Court were reversed and
consequently the suit was decreed vide judgment and decree dated 17-12-2004 rendered
by Malik Abdul Rasheed, learned Additional District Judge, Mandi Baha-ud-Din.

7. The present revision petition was filed on 15-3-2005 to challenge the appellate
judgment and decree dated 17-12-2004.

8. I have heard learned counsel for the parties and gone through the record. Issues Nos.1,
3 and 4 being interdependent, may be taken up together. The plaintiff/respondent
Muhammad Idrees appeared as P.W. 1 and got exhibited the agreement dated 26-3-1996
as Exh. P. 1. He examined Muhammad Latif, Sub-Engineer P.W.2 who as a local
commission had testified his report Exh.P.2 and the site-plan Exh.P.3. Further, Abdul
Sattar P.W.3 was also examined who testified the afore-said agreement Exh. P. 1.
Muhammad Ramzan P. W .4 was also examined who, too, testified the execution of
agreement Exh. P.1.

9. On the other hand, Mst. Aashi one of the defendants/revision petitioners appeared as
D.W.1. Ashfaq Ahmad, one of the defendants/ revision petitioners appeared as D.W.2.
Muhammad Suleman D.W.3 was examined on their behalf.

10. The afore-mentioned was the entire evidence on record for and against the parties.

11. The case of Muhammad Idrees plaintiff/respondent was mainly based on agreement
Exh.P.1. This agreement showed that Ashfaq Ahmad, defendant/petitioner was first
cousin (Tayazad) of Muhammad Idrees 'plaintiff/respondent and the site in question was
taken as Areeat for two years; that the defendants would raise temporary construction;
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that after 31-3-1998 they would remove the superstructure and hand over the vacant
possession to Muhammad Idrees and that if the terms of the agreement were violated, he
would have a right to get the site vacated through lawful means. The execution of this
agreement was denied in the written statement. However, I find that the denial was not
specific and rather evasive. Such an evasive denial when viewed in terms of Order VIII,
rules 4 and 5, C.P.C., the relevant assertion made by the other side, would be deemed to
have been admitted.

12. It is a settled law that in civil matters when entire evidence is recorded, burden of
proof would lose its importance and the Court has to examine the evidence in its entirety.
Mst. Aashi Bibi D. W.1 herself admitted that they had earlier filed a suit with regard to
the same site in question and that the same was withdrawn with permission to sue afresh.
She further admitted that no fresh suit was ever filed by them. She also admitted that
when local commission had visited the spot, Muhammad Idrees plaintiff/respondent was
in actual physical possession although with a lump and throat, she added that he had
taken possession with the help of police. Ashfaq Ahmad D.W.2 claimed in his
examination-in-chief that the property in question was owned by Government of
Pakistan; that his father was in possession and that he had never executed any Iqrarnama.
He claimed that the Iqrarnama relied by the plaintiff/ respondent was a fake document.
During cross-examination he was confronted with the written statement. He denied
having signed the written statement. However, he admitted his signatures on the front and
back side of the agreement Exh.P.1. He also admitted that the I.D. Card number shown
thereon related to him. Then he tried to take a shift saying that the stamp paper was got
written through fraud. He however, failed to state any particular of the so-called fraud. It
is evident that he had admitted the execution of the agreement Exh. P.1 dated 26-3-1996.
The agreement Exh.P.1 was fully covered under Article 102 of Qanun-e-Shahadat Order,
1984 and any oral evidence against its terms, would stand excluded from consideration
vide Article 103 of the Order (ibid).

13. As per Article 170 of Principles of Mahomedan Law by Dr. M.A. Manan (Pakistan
Edition), an Areeat would be resumable at the grantor's option. "Areeat" is investiture
with the use of a thing without return. In other words, it signifies simply a licence to use
the property of another. In the present case, the Areeat was for a limited period from 26-
3-1996 to 31-3-1998 whereafter the grant was resumable at the option of the grantor
(Muhammad Idrees). The temporary possession of the defendants was nothing more than
permissive under the agreement Exh.P.1 executed on 26-3-1996 for a limited period of
two years. Muhammad Idrees plaintiff/respondent even if was not an owner of the site in
question, had possessory rights and consequently could maintain a suit on the basis of his
legal character. As per section 42 of Specific Relief Act, 1877, any person entitled to any
legal character, or to any rights as to any property could maintain a suit for declaration
with consequential relief. The term "legal character" has a bit different connotation from
"a title to property". It was proved on record that Muhammad Idrees plaintiff/respondent
was in actual physical possession of the property in question before 26-3-1996 when the
agreement Exh.P.1 was executed. His possessory rights had conferred on him a legal
status, except against the true owner, if any, which is equivalent to legal character as
envisaged under section 42 of the Specific Relief Act, 1877. "Stronger is the position of
the person who is in possession" is a time-accepted rule. The term "legal character" is
familiar to the lawyers. It is, however, difficult to define precisely its connotation within a
short compass. The defendants/revision petitioners in this case were bound by the terms
of the agreement dated 26-3-1996 Exh.P.1. By denying the execution of the agreement
Exh.P.1, in their written statement, the defendants/revision petitioners had cut their size.
Its execution was proved during evidence. Section 42 of the Act ibid does not postulate
that declaration in respect of right to any property could be sought only by an owner of
the same. Hyderabad Municipal Corporation v. Messrs Fateh Jeans Ltd. 1991 MLD 284
maybe relied upon.

14. In purview of the evidence and the legal position as discussed above, the
plaintiff/respondent could not be dubbed to have come to Court with unclean hands. It
could also not be said that he had no valid cause of action. He was, therefore, entitled to
the decree for declaration and permanent injunction as prayed for with respect to the
property in question. The allegation of the defendants/revision petitioners that
Muhammad Idrees had taken forcible possession remained bald leading to no
consequence. As a result, I find that the learned Additional District Judge was justified as
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a superior Court of fact, in reversing the findings recorded by the learned trial Court and
had rightly decreed the suit in favour of the plaintiff/respondent vide his judgment/decree
dated 17-12-2004.

15. Now a word about Issue No.2. In purview of findings on issues Nos.1, 2 and 4, there
was no warrant to say that the plaintiff/respondent had filed the suit to harass the revision
petitioners. There was, therefore, no question of awarding special costs under section 35-
A, C.P.C.

16. For my own reasons as recorded above, I uphold the judgment/decree dated 17-12-
2004 rendered by the learned Additional District Judge, Mandi Baha-ud-Din, decreeing
the suit. Consequently, the revision petition is dismissed with costs.

17. A copy of this judgment shall be communicated through the District and Sessions
Judge concerned to the learned trial Judge as also the learned appellate Judge wherever
they are posted.

S.A.K./K-32/L Revision dismissed.

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2010 Y L R 234

[Karachi]

Before Mrs. Yasmin Abbasey, J

MUSHTAQUE AHMED and another---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No.20 of 2007, decided on 24th November, 2008.

(a) Penal Code (XLV of 1860)---

----Ss. 392 & 353---Appreciation of evidence---Members of raiding party were firm and
confident in giving the details of the occurrence right from receiving a wireless message
about commission of a car robbery and arresting the accused with the robbed car---No
material contradiction could be pointed out in the statements of prosecution witnesses---
Clear statement made by prosecution witness in cross-examination regarding both the
accused being present in the robbed car and coming out of it in injured condition at the
time of raid, having not been denied specifically, same would be deemed to have been
admitted by them---Accused during their trial had been taking inconsistent defence pleas
at different stages belying their stand of false implication---Recovery of pistols from the
accused used by them in the commission of offence and recovery of crime empties from
the place of incident, had not been disputed by them at any stage---Both the accused were
proved on record to be habitual offenders, who had acted in a rebellious manner---
Robbery of car had been proved against accused by satisfactory and sound evidence---
Convictions and sentences of accused were maintained in circumstances.

Criminal Law 575 2nd Edn. 1961 ref.

(b) Penal Code (XLV of 1860)---

----Ss. 392 & 353---Appreciation of evidence---Principles---Fact stated by a prosecution

witness in his cross-examination, if not specifically denied, will be deemed to have been
admitted.

(c) Sentence---

----Punishment---Purpose---Purpose of punishment is to change the character of the

offender by keeping him away from criminal activities and to prevent him from repetition
of the same.

(d) Sentence---

----Punishment---Nature and impact---Punishment in all its forms is a loss of rights or

advantages consequent on a breach of law and when it loses this quality it degenerates
into an arbitrary act of violence that can produce nothing but had social effects.

Criminal Law 575 2nd Edn. 1961 ref.

Zulfiqar Ali Sangi for Appellants.

Liaquat Ali Shar, Addl. A.-G. for the State.

Date of hearing: 10th November, 2008.

JUDGMENT

MRS. YASMIN ABBASEY, J.--Case of prosecution is that after receiving wireless

message from Police Station `C' section, Sukkur that two persons had robbed one Toyota
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Corolla car bearing registration No. KAR 3127, complainant Muhammad Hanif Mangrio,
S.H.O, P.S. Ghotki to have Nakabandi proceeded towards national highway along with
his staff near Raja cotton factory. At about 1345 hours, pointed Toyota Corolla was found
coming from Sukkur. Two persons were found sitting. It was signaled to stop but in spite
of stopping driver of car accelerated speed and tried to hit police party. In that attempt
vehicle went out of control of driver and hit to a tree at the distance of about 20/25 paces
from road side. Culprits got down from the car with weapons in their hands. Both of them
directly fired on police party with their pistols. Police also made firing in defence.
Encounter continued for about ten minutes. Thereafter both culprits surrendered before
police. They were taken in custody along with weapons. On enquiry they disclosed their
names as Mushtaq Ahmed and Riaz Ahmed. 30 bore pistols were recovered from both the
culprits with six live bullets and one magazine from appellant Mushtaq Ahmed and one
magazine and two live bullets from appellant Riaz Ahmed. Both of them did not possess
licence of the weapons. On enquiry they disclosed that they robbed this car from old
Sukkur. Four empty shells of .30 bore and 30 shells of 7.62 and 17 shells of G-III rifle
were collected from the place of incident. Due to non availability of private persons
police officials of patrolling party were taken as Mashirs. Thereafter accused and robbed
property were brought at Police Station. As both appellants were injured because of hit of
car with tree, therefore after registration of case, they were referred to Taluka hospital
Ghotki for medical treatment.

To bring guilt at home prosecution has examined three witnesses, consisting of SIP.
Muhammad Hanif who arrested both the culprits during patrolling. H.C. Muhammad
Usman who was one of the members of patrolling party headed by SIP. Muhammad
Hanif and A.S.-I. Abdul Haleem the Investigating Officer.

After reading evidence of prosecution witnesses, it is contended by learned counsel for

appellants that they have been falsely implicated in the matter because if prosecution
story of encounter in between the parties at the time of arrest of these appellants, as stated
is assumed to be correct then it is unbelievable that in an encounter with heavy rounds
and with short distance in between both parties none of the members of either party could
receive any injury particularly when place of incident was an open place with no place to
save themselves. It is further contended that besides two appellants there was one other
person also who was driver of car but that person has been let off by police. Both these
appellants were passengers in car and rode therein from bus stop Rohri and have no
connection with robbery of this car.

To arrive at a proper decision detailed scrutiny of evidence produced by prosecution is

required.

Both witnesses of raiding party Muhammad Usman and Muhammad Hanif, S.H.O. Police
Station Ghotki, who after receiving information through wireless, with its detection were
able to arrest and secured properly. In their examination-inchief they had detailed the
incident happened on 4-2-2005. They are so affirm and confident because of their
successful raid that not a single iota of difference is appearing in their statement that after
wireless message, they kept an eye on the vehicles passing on National Highway and
about at 1345 hours found robbed vehicle in speed from Sukkur side. It was signalled to
stop but driver of car tried to hit police party, but they saved themselves. In that attempt
car went out of control and stopped with hit to a tree. As per both P.Ws. both appellants
tried to combat by filing on police party but could not succeed and were arrested by
police in injured condition due to dash of car with tree. Car in damaged condition was
brought at Police Station through tractor. Both 'appellants were', referred to hospital for
medical treatment.

Both prosecution witnesses were cross-examined by defence counsel, but in spite of

lengthy cross-examination to them, defence counsel was not able to bring any material
contradictions in their statements.

Only defence of appellants is that car was driven by one third person and they only being
passengers boarded therein for going to their home at Rahim Yar Khan. This defence of
appellants in their 342 Cr.P.C. statements does not corroborate to the defence taken by
them in cross-examination of P.W.2 in form of suggestion that "It is incorrect to suggest

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that accused Mushtaq was falsely implicated by me in this case after arresting him from
Ghotki bus stop".

On the contrary when clear statement was made by PW.2 in cross that:--

"Both accused were sitting on front seat in car". "Accused voluntarily came out of car in
injured condition. Accused were conscious as they got simple injuries".

No suggestion question denying the above statement was put to P.W. 2. It is settled
principle that fact stated if not specifically denied will be deemed to have been admitted.
In the circumstances it was rightly observed by learned trial Court that:

"Even no suggestion of whatsoever has been given to any witness that accused were not
in knowledge that a car in which they were travelling was robbed or stolen property in
spite of the fact that complainant and Mashir in their examination-in-chief have stated
that accused have themselves admitted that car recovered from them is robbed property."

According to prosecution after hit of car when car stopped both these appellants started
firing on police party. After their surrender fire-arm weapons were recovered for their
possession. Although it is admitted that weapons were not sealed at the spot and the
Investigating Officer of this case is also not confirmed that whether same were sent to
Ballistic Expert for examination or not, but that is not subject-matter of this appeal, as
separate cases under section 13(d) Arms Ordinance, were registered against these
appellants and that were separately tried.

To show their innocence that they were just passengers, a question was put to P.W.2 that
in fact car in question was recovered from dacoits Qurban Jagirani and Raja Gadani and
they were let off by him at the instance of one brother of DPO, Jagirani, but this defence
taken up by appellants in cross-examination of P.W.2 had not been taken by both of them
in their statements under section 342 Cr.P.C. The inconsistable defence taken by
appellants at different stage, certainly belies their defence of false implication and are
material to examine the veracity of appellants.

According to appellants after accident of their car they became unconscious and regain
their senses at hospital, whereas according to P.W.2 because of hit of car with tree
appellants received minor injuries. They were conscious and made firing on police party.
To support his statement, pistols used in the commission of offence and empties said to
be recovered from the place of incident fired by both the police party as well as
appellants have been produced. Their production has not been disputed by appellants at
any stage. So even if appellants stand on their statement of becoming unconscious in
order to show that they were not involved in the commission of offence alleged against
them under section 353, P.F.C. neither medical certificate of these appellants nor doctor
concerned, who examined and treated these appellants have been produced on record by
them.

Learned counsel further argued that in spite of availability of private persons at the place
of incident, they were not taken as Mashirs of the case and police officials have been
shown as witnesses of the incident. A contradictory statement made by P.Ws. 2&3 in this
regard have been referred by learned counsel for the appellants to refute prosecution story
of happening of this incident. According to P.W.2 no private person was available at the
moment, whereas according to P.W.3, 2/3 persons came at the place of incident, but this
minor contradiction in the statements of prosecution witnesses can not be given too much
importance particularly when beside proceedings registered under section 381-A P.P.C. in
crime No.4/2005 sufficient definite and sound evidence by placing judgment given in:-

(i) Criminal case No.417/2006 registered under Crime No.314 of 2006 under sections
223, 224, 225-A, P.P.C;

(ii) Criminal case No.118/2005 under Crime No.24/2005 under section 411-A P.P.C;

(iii) Criminal case No.19/2005 under No.20/2005 under section 381-A P.P.C.

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Wherein both these appellants were convicted on admission of their guilt, has been
placed on record, which proves that these appellants are habitual offenders.

Perusal of above judgments wherein both appellant vehemently confessed their guilt
shows that they are habitual offenders, which makes the conduct of these appellants more
doubtful.

Purpose of punishment is to change character of offender by keeping him away from

criminal activities and to prevent an offender from its repetition. But in the present case a
rebellious act is appearing on the part of appellants. Such conduct of criminals reflects
the moral and ethical volume developing in the society. There is a need to examine the
aspects which is developing crime particularly wherein criminals are able to generate
money.

Normally much crime developed because when people are unable to have an access to
satisfy their basic fundamental right of food, clothing, proper shelter and education. As
observed by Glanville Williams, Criminal Law 575 (2nd ed. 1961) that:--

"Punishment in all its forms is a loss of rights or advantages consequent on a breach of

law. When it loses this quality it degenerates into an arbitrary act of violence that can
produce nothing but bad social effects."

Thus there is a need to reformatory school where such ill elements be sent not with the
intent of punishment but to make them a respectable and acceptable members of society,
but in the circumstances of case I have no option but to dismiss appeal as satisfactory and
sound evidence was available against appellants of committing robbery.

N.H.Q./M-6/K Appeal dismissed.

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2009 M L D 1113

[Peshawar]

Before Syed Yahya Zahid Gilani, J

MUHAMMAD RAZIQ KHAN and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.1 of 2009, decided on 8th May, 2009.

(a) Criminal trial---

----Counter version---Counter version of accused in criminal case, could be taken into

account when it was proved---Mere allegations in the statement of accused or suggestion
to prosecution witnesses could not be sufficient to prove the cross version---If authentic
documentary evidence was available about the counter version, but it was withheld,
neither produced nor proved, it would reflect on weakness of the cross version---In
absence of proved documentary evidence, the alleged counter version, could not be
studied in juxtaposition with the facts and circumstances of the case for drawing apt and
appropriate conclusion.

Allah Dad v. The State 2005 PCr.LJ 1405 ref.

(b) Penal Code (XLV of 1860)---

----Ss.324/337-D/34---Appreciation of evidence---Counsel for accused had argued that it

was a case of two versions---Since the counter version of cross-case as alleged by
accused could not be proved according to law, it could neither shatter nor discard the
prosecution case---Complainant was the solitary, but injured witness of the case, who had
no previous blood feud or other-serious enmity with accused party to falsely drag accused
persons in the case to substitute for some other real culprit---Immediate motive for
assault, that a few days ago the complainant had grappled and exchanged abuses with
accused, was convincing---Complainant had also stated that both accused persons used
kalashinkovs to fire at him---Said part of his statement was corroborated by recovery of
five empties and two bullets from the spot which were identified and confirmed by
Forensic Science Laboratory report---Omission of Investigating Officer to indicate the
relevant points in the site plan which were described by the complainant and duly
recorded at the back of site plan, should not harm the case of complainant who had faced
attempt at his life---Abscondence of one of accused persons further augmented case
against him---Statement of injured witness, based on a promptly lodged F.I.R. about day
light occurrence, duly supported by circumstances and medical evidence, had sufficiently
proved the prosecution case beyond doubt---Parties were known to each other and no
question was of misidentification or substitution of the real culprits---Trial Court, in
circumstances, had rightly convicted both accused and the sentence was also appropriate,
which was upheld.

Allah Dad v. The State 2005 PCr.LJ 1405 and Muhammad Akram alias Laloo v. The State
2008 PCr.LJ 1569 ref.

(c) Words and phrases---

----'Abdomen' and `Trunk', defined and explained.

(d) Qanun-e-Shahadat (10 of 1984)---

---Arts.132 & 133---Criminal trial---Appreciation of evidence---Failure of defence to

cross-examine witnesses---When defence would fail to cross-examine the witnesses on a
specific portion of the statements of witnesses in examination-in-chief, such
unchallenged statement would be deemed to have been admitted by the defence.
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Sheraz Tufail v. The State 2007 SCMR 518; Bagu v. The State PLD 1972 SC 77 and Arif
v. The State PLD 2006 Pesh. 5 ref.

(e) Penal Code (XLV of 1860)---

---Ss. 324/337-D/34---Appreciation of evidence----Medical report---Error in timing

mentioned in the medico legal report---Prosecution had to appropriately clarify the error
in timings mentioned in medico legal report, but if the complainant's counsel and the
prosecution did not pay attention in that direction, the Presiding Officer of the court could
not be free from the responsibility to ensure that all proper and necessary steps were
carried out to unveil the truth.

Shah Hussain Khan for Appellants.

Yousaf Haroon Khan for the State

Sultan Shahryar Khan Marwat for the Complainant.

Date of hearing: 4th May, 2009.

JUDGMENT

SYED YAHYA ZAHID GILANI, J.---The appellants Muhammad Raziq Khan and his
son Mushtaq Khan were tried in case F.I.R. No.137, dated 5-5-2007 of Police Station
Mandan, Bannu, in the Court of Mr. Muhammad Amin Kundi, Additional Sessions
Judge-IV, Bannu, in Sessions case No.111 of 2007, who convicted them vide judgment,
dated 9-2-2008 firstly; under section 324/34, P.P.C. and sentenced each of them to three
years' R.I., with a fine of Rs.2000 each or in default, to suffer two months' S.I., and
secondly; under sections 337-D/34, P.P.C. and sentenced each of them to undergo three
years' R.I. and pay Rs.10,000 each as Daman to the injured complainant Lal Shahbaz and
this is their appeal against conviction.

2. Reportedly, Lal Shahbaz complainant was present in the vicinity of this house at "Mall
Mandi" on 5-5-2007. It was 5 a.m. The convicts-appellants Raziq Khan and his son
Mushtaq Khan arrived duly armed with kalashnikovs and jointly fired at him because of
the incident of grappling and exchange of abuses having taken place among them a few
days ago. Lal Shahbaz got injured and his version was recorded in the shape of murasila,
in the Civil Hospital, Bannu at 5-45 a.m., whereupon the case was registered.

3. The convict Raziq Khan was arrested on the day of occurrence and the convict
Mushtaq Khan was arrested on 24-10-2007. Both were tried together and prosecution
endeavored to prove its case by producing twelve witnesses including the ocular
testimony of injured complainant, coupled with the documentary evidence and
circumstantial evidence. It is important to mention at the outset that the site-plan was
prepared by the Investigating Officer on his own observations because the complainant
was seriously -injured and there was no other eye-witness nominated in the F.I.R.
However, the complainant's spot related information was recorded by the Investigating
Officer on the back side of the site-plan Exh.P.W.12/1 after about one month and ten days
of the occurrence when he was discharged from the hospital, but surprisingly, the
Investigating Officer did not incorporate the stated points on the face of site-plan, which
indeed is an omission at the part of the Investigating Officer. The accused did not produce
any defence evidence, however, referred to another F.I.R. No.138 of the same date with
the allegations that it was lodged by the brother of Muhammad Raziq Khan convict-
appellant namely Noor Rehman alias Balbal, against the complainant and his companies
who had allegedly ineffectively fired at him and the complainant of the present case
might have been injured in that cross firing and the present convicts-appellants were
falsely charged, but this theory was not accepted by the trial Court who convicted both
the appellants.

4. During arguments before this Court, learned counsel for the convicts-appellants argued
that it is a case of two versions because of cross F.I.R. No.138 but this aspect of the case
was not appreciated by the trial Court. He added that when two theories are available on
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record, one favouring prosecution and other the accused, then the theory favourable to the
accused was to be accepted. In this respect he placed reliance on a case from Karachi
jurisdiction reported in Allah Dad v. The State (2005 PCr.LJ 1405 Karachi). He further
argued that the medical evidence is in conflict with the version of complainant inasmuch
as time of occurrence is concerned, because according to the medicolegal report and
statement of Dr. Ilyas (P.W.6), the complainant was examined late at evening time and
not in the morning when the occurrence allegedly took place and P.W.5 Azad Khan FC
has also supported the statement of doctor. The circumstantial evidence also does not
support the complainant. Two persons have been charged for one injury and the convicts -
appellants could not be convicted under section 337-D, P.P.C. because the victim has
received injury in abdominal cavity which is not part of the trunk and the" offence of
Jaifah does not constitute. In this respect, he placed reliance on another judgment from
Karachi jurisdiction reported in Muhammad Akram alias Laloo. v. The State (2008
PCr.LJ 1569 Karachi). Lastly, he submitted that the motive has been alleged but not
proved, .Muhammad Raziq convict-appellant did not abscond and Mushtaq convict's
short absence is not abscondence. He concluded that the prosecution has not proved its
case to the hilt and the convicts-appellants deserve acquittal under benefit of doubt.

5. Conversely, counsel for the complainant and the State counsel argued that the cross
version, though alleged, but not substantiated with documentary evidence, hence, of no
avail. Clerical mistakes in medicolegal report about timings were adhered to by the
doctor (P.W.6) to cover up his negligence and Azad Khan FC P.W.5 has given wrong
concessions to accused which should not mislead the Court because other evidence
clarifies that injured complainant has rightly referred the timings. Similarly, omission of
the Investigating Officer that he did not show the information provided by the
complainant in the site-plan, would also not create any hurdle in the way of Court in
administering substantial justice. They added that ocular testimony of victim corroborated
by the medical evidence and FSL reports coupled with the recoveries from spot, the
motive and abscondence of Musthaq accused accumulatively prove the prosecution case
beyond doubt and hence, the conviction and sentence is valid which may be upheld.

6. First of all, I shall discuss the point of cross versions. Counter version of the accused in
criminal case can be taken into account when it is proved. Mere allegations in the
statement of accused or suggestions to P.Ws. cannot be sufficient to prove the cross
version. Furthermore, if authentic documentary evidence is available about the counter
version but it is withheld, neither produced nor proved, it reflects on weakness of the
cross version. In the instant case, although a copy of F.I.R. No.138 has been referred and
some oral reference pertaining thereto has been brought on record during cross-
examination, but it has been totally ignored that the said cross case is based on
documentary evidence which could be easily proved by producing relevant certified
copies being part of the public record under Article 85(3) of Qanun-e-Shahadat 'Order,
1984, the oral evidence pertaining to the aforesaid documents would be inadmissible in
evidence under Article 70 of Qanun-e-Shahadat Order, 1984. In absence of proved
documentary evidence, the alleged counter version cannot be studied in juxtaposition
with the facts and circumstances of the present case for drawing apt and appropriate
conclusions. In the case of Allah Dad v. The State (2005 PCr.LJ 1405), referred by
learned counsel for the convicts-appellants, it is clearly mentioned in para.9 that if in final
analysis the defence plea is proved, then the prosecution case is shattered and discarded,
but this part of the judgment containing decisive opinion could not be properly
understood by learned counsel for the appellants while referring it in his support. I,
therefore, conclude that since the counter version of cross case alleged by the accused
could since not be proved according to law, it cannot shatter or discard the prosecution
case.

7. Before touching other points, I would take up the technical objection of learned
counsel for the convicts-appellants that since the victim had received injury in abdomen
and the abdomen is not part of the trunk of the human body, the appellants could not be
convicted for the offence of "Jaifah" as defined in section 337-C, P.P.C. for conviction
under section 337-D, P.P.C. In this respect, he has placed reliance on the case of
Muhammad Akram alias Laloo v. The State (2008 PCr.LJ 1569). It is sorry to note that
his reference to the cited case is again misconceived because in this judgment, it has not
been declared that abdomen is not. the part of trunk.

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8. It is mentioned in section 337-C, P.P.C. that whoever causes jurh in which the injury
extends to the body cavity of the trunk, is said to cause jaifah. There is no ambiguity in
this definition. According to Chambers -Dictionary, abdomen is the part of body between
diaphragm and pelvis in mammals body which is also called belly and thorax is the part
of the body between the head and abdomen which is normally called chest. The word
trunk means the stem of a tree and in the body of an animal, it denotes the portion of
body apart from head and limbs. These dictionary meaning unequivocally denote that the
word trunk includes both the thorax and abdomen of human body, excluding the head and
limbs, therefore, I turn down the interpretation of learned counsel for the convicts-
appellant that the firearm injury received by the victim in abdomen, which has perforated
the body making entrance and exit holes, does not fall in the definition of jaifah.

9. Next, I shall discuss the conflict of timings alleged in F.I.R. qua the timings mentioned
in the medicolegal report and those referred by the doctor. In the murasila Exh.P.W.9/1
the date of occurrence is 5-5-2007 and time of report is 0545 hours. The time of
occurrence mentioned in the body of murasila is 0500 hours. The scribe of murasila Gul
Shahbaz HC was examined as P.W.9 who has categorically deposed that the contents of
murasila have been correctly recorded. He was cross examined and he repeated that the
injured had come to Casualty at 0545 hours. This murasila was taken to Police Station by
P.W. Akram Khan who, in reply to a cross question, answered that he delivered murasila
at Police Station at 0635 hours, which was incorporated in the F.I.R. Exh.P.W.4/1 and the
case was registered at 0645 hours. Muhammad Tahir Shah DSP Rural (P.W.12) was
posted as S.H.O. at Police Station Mandan in the days of occurrence. He incorporated
murasila into F.I.R. and registered the case. In cross-examination he stated that after
registration of the case, he reached the spot at 0650 hours and returned back at 1400
hours. The injured complainant when himself came in the witness box as (P. W.10), he
categorically stated in his examination-in-chief that the occurrence took place at 0500
hours and was shifted to hospital where he lodged the report. All these P.Ws. were cross
examined but the factum of incident, having taken place in the morning was not at all
challenged nor they were cross examined on this point. When defence fails to cross
examine the witnesses on a specific portion of the statements of witnesses in
examination-in-chief, such unchallenged statement is deemed to have been admitted by
the defence, as held in the case of Sheraz, Tufail v. The State (2007 SCMR 518 (b)).

10. In this background, when we go through the medicolegal report Exh.P.W.6/1,

although we find that time of arrival has been mentioned therein as 5-45 p.m. by Doctor'
Ilyas Hassan P.W.6. who also remained stuck to this entry in his statement recorded in
Court. In cross-examination, he stated that the injured was brought to the hospital at 0445
hours. This time is also wrong because he has admitted in the cross-examination that first
of all the police recorded the statement of the injured and thereafter, he examined him
soon after arrival of the injured to the Casualty, the police and he simultaneously
entertained the injured, however, the police first recorded' his statement. If we study this
part of cross-examination of P.W.6 Dr. Muhammad Ilyas in juxtaposition with the
statement of scribe of murasila Gul Shahbaz HC P.W.9 and the other documents like
murasila Exh.P.W.9/1 and F.I.R. Exh.P.W.4/i referred above, it becomes crystal clear that
the murasila was recorded in the morning which leads to the firm conclusion that the
doctor was inadvertently mistaken while writing the time of arrival of the victim as 0545
p.m. and he again erred when he said in the first sentence of cross-examination that the
injured was brought to the hospital at 0445 hours. Here; it is very pertinent to mention
that in cross-examination, the doctor has clarified that because of the abdominal firearm
injury received by the victim, "the omentum of his abdomen was protruded". This being
the nature of injury sustained by the victim at 5 a.m., could it be possible for the victim to
waste time up to evening and arrive in the hospital at 5-45 p.m., as it is written by the
doctor in medicolegal report. Simple answer of a man of ordinary prudence in this regard
would be in negative. So, it can safely be held that the words-"P.M." written by the doctor
could be an inadvertent mistake and nothing else. Holding so, it further becomes manifest
that the accused party availed benefit of the aforesaid mistake in medicolegal report
Exh.P.W.6/1 and procured concessions from Azad Khan FC (P.W.5) who, after medical
examination of the injured, took medicolegal documents and blood stained shirt to deliver
them to the Investigating Officer. He has shown all this activity done at late evening
timings. Such a growing tendency of police witnesses, especially the Foot Constables,
making obliging concessions in favour of defence, has been deprecated by Honourable
apex Court in the case Bagu v. The State (PLD 1972 SC 77) and the Provincial
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Governments were directed to check such propensities on part of their own subordinate
police constables.

11. In a similar case decided by Abbottabad Bench of this Court titled Arif v. The State
(PLD 2006 Pesh. 5), it was held that inadvertent error through which word "P.M." instead
of "A.M." was written, cannot benefit defence to discredit P.Ws.

12. It was the duty of prosecution to have appropriately clarified the error in timings
mentioned in the medicolegal report, but if the complainant's counsel and the prosecutor
did not pay attention in this direction, the Presiding Officer of the Court could not be free
from the responsibility to ensure that all proper and necessary steps are carried out to
unveil the truth. However, as discussed above, proved facts on record which have been
discussed above, make it abundantly clear that the words "P.M." written in column of
timings of the arrival of victim in the hospital was a clerical mistake and inadvertently
written instead of the words "A.M.". The doctor was not asked to clarify it during his
examination in Court and he continued to adhere to his written material, it could be to
conceal his error which being manifest on record as error' and mistake, cannot create
doubt in prosecution case. Further, it is also clear on the face of record that Foot
Constable Azad Khan (P.W.5) has given obliging concessions in favour of accused by
referring evening timings instead of morning timings. Therefore, I take the mistaken error
and obliging concessions out of consideration.

13. Now coming to the merits of the case, Lal Shahbaz complainant (P.W.10) is the
solitary but injured witness of this case who has no previous blood feud or other serious
enmity with the accused party to falsely drag the convicts in this case to substitute for
some other real culprit. Immediate motive for the assault, that a few days ago he had
grappled and exchanged abuses with the accused, is convincing. He has stated that both
the accused used Kalashnikovs to fire at him. This part of his statement is corroborated
by recovery of five empties and two bullets recovered from the spot which were
identified and confirmed by the FSL report Exh.P.W.12/4 to be of 7.62 MM. The
complainant, has charged two persons for firing. Although he had received single
entrance wound, but the same FSL report Exh.P.W.12/4 further confirms that the five
empties recovered from the spot were not only of 7.62 bore but those were fired from two
different weapons. So, this part of his statement also stands corroborated by the
independent source of circumstantial evidence. As far as the venue of occurrence is
concerned, the blood stained grass and earth recovered from the spot was of human origin
as per FSL report Exh. P. W.12/3 and it has group matching with . the blood of victim
detected .on his shirt which also had cut marks at the place relevant to his injury. The
Investigating Officer's omission to indicate the relevant points in the site-plan which were
described by the complainant and duly recorded at the back of site-plan Exh.P.W.12/1
should not harm the case of complainant who has faced attempt at his life, because it is
not his fault and otherwise, his narration is appearing to be true and straight forward. He
was suggested that there was some cross firing, but the complainant' has refuted the
suggestion emphatically and added that F.I.R. No.138 was lodged only to create the
impression of a cross case which is totally false because nobody got injured in that case.
As discussed above, since no record of that case was exhibited and proved for
consideration in accordance with law, the plea collapses on adverse presumption. The
abscondence of Musthaq accused further augments the case against him.

14. In the light of above discussion, it is safely concluded that the statement of injured
witness, based on a promptly lodged F.I.R. about this day light occurrence, duly
supported by circumstantial and medical evidence, sufficiently proves the prosecution
case beyond doubt because parties were known to each other and there is no question of
misidentification or substitution of the real culprits. The trial Court has, therefore, rightly
convicted both the appellants and the sentence is also appropriate, which is upheld. The
appeal is dismissed.

H.B.T./125/P Appeal dismissed.

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2009 C L D 1157

[Karachi]

Before Khilji Arif Hussain and Muhammad Karim Khan Agha, JJ

Messrs MILLWALA SONS LIMITED---Appellant

Versus

Messrs JAYMISSCO and another---Respondents

High Court Appeal No.150 of 1989, decided on 11th May, 2009.

(a) Qanun-e-Shahadat (10 of 1984)---

----Art.133---Fact not cross-examined---Effect---If any evidence is not disputed in cross-

examination, then it is deemed to be an admitted fact.

Nur Jehan Begum v. Mujtaba Ali Naqvi 1991 SCMR 2300 and Sheraz Tufail v. State
2007 SCMR 518 rel.

(b) Contract Act (IX of 1872)---

----Ss.126 & 127---Interpretation of document---Contract of guarantee---Scope---Plea

raised by appellant was that letter produced in evidence was a letter of guarantee---
Validity---Guarantee needed involvement of three parties and letter produced in evidence
involved only two parties, therefore, it could not fall within the definition of 'guarantee'---
Letter in question was given by first respondent after the contract of sale between the
other respondent and appellant had already been breached by the first respondent---Single
Judge of High Court rightly found that effect of letter in question was substitution of
liability from one respondent to other respondent and not a guarantee.

Ramchandra v. Shapurji AIR 1940 Bom. 315 and Bagha Co-operative Society v. Debi
Mangal Prasad AIR 1937 Pat. 410 rel.

(c) Interpretation of documents---

----Category of document---Determination---Where document can be construed to fall

within number of categories then it is up to Court to determine category/nature of
document and its labelling is not critical.

Muhammad Rafiq v. Muhammad Nawaz 2001 CLC 318 rel.

(d) Negotiable Instruments Act (XXVI of 1881)---

----S.4---Civil Procedure Code (V of 1908), O.XXXIX, R.1---Promissory note-Scope-For

a document to be regarded as promissory note, it must fulfil definition as set out in S.4 of
Negotiable Instruments Act, 1881.

Brijraj v. Raghunandan AIR 1955 Raj. 85 (Vol. 42, C.N.28) and Gopaldas v. Ramdeo AIR
1957 Raj. 360 (V 44 C 138 Nov.) rel.

(e) Negotiable Instruments Act (XXVI of 1881)---

----S.4---Contract Act (IX of 1872), S.126---Civil Procedure Code (V of 1908),

O.XXXVII, R.1---Law Reforms Ordinance (XII of 1972), S.3---Infra Court Appeal---
Interpretation of document---Incorrect label of document-- Unstamped promissory note---
Plaintiff sought recovery of amount against defendants on the basis of two letters
claiming the same' to be promissory note---Validity---Letter in question contained an
unconditional undertaking, to pay; a sum of money which was certain; a payment that
was to be made to a person; and a signature on behalf of executant, therefore, the letter
met all requirements of a promissory note---Failure to stamp promissory note would not
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exclude it from being enforceable---Letter in question was unclear in its labelling and its
effect of passing on liability from one defendant to other defendant was not fully
appreciated by plaintiff at the time should not debar plaintiff from seeking to recover
money rightfully owed to him---Letter in question was whether called a letter of
guarantee, a promissory note, an indemnity or by any other nomenclature its intention, as
evidenced by correspondence was to create obligation on a defendant to make payment to
plaintiff---High Court in High Court Appeal declined to allow defendant, who executed
the letter, to wriggle out of his obligation to pay plaintiff under the letter simply because
plaintiff based his bona fide demand on unclearly labelled and worded letter but which
intention was clear at the time plaintiff sued the executant as opposed to judgment-
debtor---High Court set aside the judgment passed by Single Judge of High Court and
declared that letter in question was a promissory note and could be relied upon by
plaintiff against defendant who executed the same-Infra-court Appeal was allowed
accordingly.

State Engineering Corpn. Ltd. v. National Development Finance Corpn. 2006 SCMR
619; Ghulam Rasool v. Nazir of the Sindh High Court 1992 CLC 2490; National Bank of
Pakistan v. Alam Industries Ltd. PLD 1992 Kar. 295; Rafique Hazquel Masih v. Bank
Alfalah Ltd. 2005 SCMR 72; Adam Ali Agaria v. Asif Hussain 1996 MLD 322; Habib
Bank Limited v. Shalimar Silk Mills Ltd. 1993, CLC 1295; Farid Akhtar Hadi v.
Muhammad Latif Ghazi 1993 CLC 2015; Rahim Bakhsh v. Allah Jiwaya 1992 CLC 243;
United Bank Ltd. v. Pakistan Industrial Credit 7 Investment Corpn. Ltd. 2002 CLD 1781
and Maxwell on the Interpretation of Statutes, Twelfith Edition 212 ref.

(f) Administration of justice---

----Technicalities should not be used in order to circumvent true intention of agreement

between parties or as an excuse to avoid liability properly and willingly incurred.

Rahim Bakhsh v. Allah Jiwaya 1992 CLC 2433 and United Bank Ltd. v. Pakistan
Industrial Credit 7 Investment Corpn. Ltd. 2002 CLD 1781 rel.

Qazi Faez Issa for Appellant.

Fazle Ghani Khan for Respondents.

Dates of hearing: 22nd and 23rd April, 2009.

JUDGMENT

MUHAMMAD KARIM KHAN AGHA, J.---This High Court appeal arises out of
judgment dated 19-4-1989, passed by learned Single Judge of this Court ("hereinafter
referred to as the "Impugned Judgment"). In essence, there are two main points of appeal,
raised by the appellants. Firstly, that the learned Single Judge erred in allowing interest
from 9-8-1984 instead of from 9-8-1974. Secondly, that the learned Single Judge found
that the alleged guarantee letter, Exh. 5/16 (the Letter), had not been proven in
accordance with the law and that even then the Letter, in effect, amounted to a
substitution of the debtor, which was not warranted by any provisions of law and as such
respondent No.2 could not be legally liable for its commitment made in the letter.

2. The brief facts of the ease are that the appellant sold and delivered to respondent No.1,
500 bales of cotton for the price of Rs.515,461/42. In part-payment of the goods, the
respondent No.1 made payment to the appellant through five different cheques. These
cheques on presentation were dishonored.

3. As a result the appellant threatened to institute recovery proceedings for the unpaid
amount. The respondent No.1, however, offered to ensure payment of the goods and to
this end respondent No.2, pursuant to a letter dated 25-5-1974 from respondent No.1, on
28-5-1974 guaranteed the payment of Rs.515,000 and issued a credit note in favour of the
appellant i.e. the Letter. The respondent No.2 agreed to pay the said amount on or before
28-7-1974. In the event, neither respondent No.1 nor the respondent No.2 made any
payment to the appellant bar a payment made by respondent No.1 for a sum of Rs.50,000.

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4. The upshot was that the appellant filed recovery Suit bearing No.309 of 1974 against
both respondents Nos. 1 and 2. The respondents filed their respective written statements
in the said suit, the Court framed the issues at page 4 of the impugned Judgment and after
recording evidence and hearing the parties passed the impugned judgment.

5. Learned counsel for the appellant, on the first ground of appeal, has reiterated that the
learned Single Judge erred in allowing interest from 9-8-1984 instead of 9-8-1974, which,
according to him, was a typographical error as the suit was instituted on 9-8-1974.

6. With regard to the second ground, the appellant's counsel argued that the letter, was an
admissible document under Article 73 of the Qanun-e-Shahadat Order, 1984, and since it
had not been challenged in cross examination it stood proven under Article 133 of the
Qanun-e-Shahadat Order, 1984.

7. Furthermore, according to him by the letter, respondent No.2 had undertaken to pay to
the appellant the sum of Rs.515,000 after two months. The said letter had been given by
respondent No.2 in consideration of the promise of the appellant not to sue respondent
No.1 and was a guarantee which was enforceable by the appellant against respondent
No.2 regardless whether or not it was a substitution of surety. That the learned Single
Judge had erred in holding that the substitution of respondent No.2 for respondent No.1
was not warranted by any provision of law.

8. According to the learned counsel for the appellant, under the laws the document
amounted to a guarantee and the appellant was entitled to rely' upon it and the respondent
No.2 was obliged to make payment under it. In support of his arguments, especially that
the letter amounted to a guarantee, he referred to the Contract Act, 1872 ("Act, 1872")
and, in particular, he placed reliance on sections 2-A, 2-B, 2-D, 2-E and sections 126 and
127 of the Act, 1872.

9. When asked by the Court, learned counsel for the appellant conceded that the letter
could not amount to an indemnity under section 124 of Act, 1872. Learned counsel for
the appellant has placed reliance on the following case-law in support of his various
contentions:--

(1) Nur Jehan Begum v. Mujtaba Ali Naqvi 1991 SCMR 2300;

(2) Sheraz Tufail v. State 2007 SCMR 518;

(3) State Engineering Corpn. Ltd. v. National Development Finance Corpn. 2006 SCMR
619;

(4) Ghulam Rasool v. Nazar of the Sindh High Court 1992 CLC 2490;

(5) National Bank of 'Pakistan v. Alam Industries Ltd. PLD 1992 Kar.295;

(6) Rafique Hazquel Masih v. Bank Alfalah Ltd. 2005 SCMR 72;

(7) Brijraj v. Raghunandan AIR 2955 Rajasthan 85 Vol.42, C.N.28;

(8) Adam Ali Agaria v. Asif Hussain 1996 MLD 322;

(9) Habib Bank Limited v. Shalimar Silk Mills Ltd. 1993 CLC 1295;

(10) Gopaldas v. Ramdeo AIR 1957 Rajasthan 360 (V 44 C 138 Nov.);

(11) Farid Akhtar Hadi v. Muhammad Latif Ghazi 1993 CLC 2015; and

(12) Rahim Bakhsh v. Allah Jiwaya 1992 CLC 2433.

10. On the other hand, learned counsel for respondent No.2 has refuted the arguments of
the appellant, in particular, he has contended that the letter was not a guarantee. This was
because, according to him, a guarantee needed to be made between three parties but in

3 of 10
this case it had only been made between two parties i.e. the appellant and respondent
No.2.

11. He contended that this was simply a business transaction between the parties and had
nothing to do with the law of guarantee. He agreed with the findings of the learned Single
Judge that, in essence, the respondent No.1 had simply passed on its liability to
respondent No.2 and the letter was not enforceable against respondent No.2 by the
appellant. In support of his contention that the letter could not amount to a guarantee he
placed reliance on the case of Ramchandra v. Shapurji AIR 1940 Bombay 315.

12. Furthermore, he contended that even if the letter could be regarded as a guarantee this
had been frustrated by the subsequent payment of Rs.50,000 by respondent No.1 to the
appellant which the appellant admitted receiving in its plaint. In support of this
contention he placed reliance on section 135 of Act, 1872.

13. We have reviewed the file in detail and carefully considered the submissions of
learned counsel for the respective parties.

14. The first point of appeal regarding the error in the year when payment for interest
should start, would seem to be a' typographical error since the Court record shows that
the institution of the proceedings was on 9-8-1974 rather than on 9-8-1984. The
respondents' counsel in his submissions has not addressed this point. We, therefore, find
that the date from when interest should run in the impugned judgment was incorrectly
mentioned as 9-8-1984 and should have been read as 9-8-1974. This point of appeal is,
therefore, allowed.

15. The second point of appeal revolves around the interpretation of Exhs. 5/17 and 5/16.
For convenience sake both these exhibits are set out as under:--

Exhibits 5/17 "May 25, 1974

Messrs Al-Ata Textile Mills Ltd.,

Adamjee House I.I Chundrigar Road
Karachi-2.

Dear Sirs,

Please refer to the discussions that the writer had with your Chairman the other day when
it was agreed as under:--

That there is an amount of Rs. 10,48,099.84 (Rupees ten lacs, forty eight thousand, ninety
nine and eighty four paisas only) as due and payable by you to us being the 100 %
payment of the raw cotton supplied to you by us.

That a sum of Rs.5,15,000 (Five lacs and fifteen thousand only) out of the above amount
is payable by us to Messrs Millwala sons Ltd. as the cost of the part of the goods supplied
to you.

That you will kindly issue a formal credit letter to Messrs Millwalla Sons Ltd., Karimji
Musabhai Bldg., Opp. Sind Madressah, Frere Road, Karachi, for the amount of
Rs.5,15,000 debiting the same to our account.

We would, therefore, request you kindly to issue the necessary credit letter as approved
by the Chairman.

Thanking you,

Yours faithfully,
For Jaymissco"

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cc. Messrs Millwalla Sons Ltd., Kasimji Musabhai Bldg., Opp; Sindh Madressah, Frere
Road, Karachi.

Exh.5/16 (the letter) "28th May, 1974

Messrs Millwala Sons Ltd.,

Kasimji Musabhai Building
Opp. Sindh Madressah,
Frere Road, Karachi.

Dear Sirs,

As per instructions of Messrs Jaymissco, we hereby issue you a credit letter for the
amount of Rs.5,15,000 (Rupees five lack fifteen thousand only) which amount shall be
payable by us to you after two months from the receipt thereof.

Yours faithfully,

(Syed Moinul Haque)

General Manager"

16. The preliminary point arises whether or not these documents, in particular, Exh. 5/16
(the letter) stands proven. According to the impugned judgment, Exh. 5/16 was found not
to be proven.

17. Only one witness gave evidence in this case and he was P.W. 1, Noor Bhai, who, in
his evidence, stated that the respondent No.1 provided them a guarantee letter and he
produced two such letters in this context from respondent No.1 as Exhs. 5/16 and 5/17.
No objection to the admission of these documents was made at that time. During cross-
examination neither of the above two exhibits were ever brought into question. No
witness appeared for the defence refuting either the admissibility or proof of the
documents.

18. Article 73 of the Qanun-e-Shahadat Order, 1984, provides for the admissibility of
primary evidence through documentary form. Under this Article both exhibits were
admissible.

19. Under Article 133 of the Qanun-e-Shahadat Order, 1984, it is well-settled law that if
any evidence is not disputed in cross-examination then it is deemed to be an admitted
fact. Reliance is placed on the case of Sheraz Tufail v. State 2007 SCMR 518.

20. In the case of Nur Jehan Begum v. Mujtaba Ali Naqvi reported as 1991 SCMR 2300
it was held as under:--

"The principle enunciated in the commentaries and rulings is that where on a material
part of his evidence a witness is not cross-examined it may be inferred that the truth of
such statement has been accepted. Statement of a witness which is material to the
controversy of the case particularly when it states his case and the same is not challenged
by the other side directly or indirectly, then such unchallenged statement should be given
full credit and usually accepted as true unless displaced by reliable, cogent and clear
evidence."

21. Accordingly, we find that the learned Single Judge in the impugned judgment erred in
finding that documents, Exhs.5/ 16 and 5/17, were not proven. We find both of these
documents to be proven.

22. The next issue is what actually is the status of the letter. The appellant's counsel has
argued that by virtue of various sections of Act, 1872, which he has cited above, the letter
amounted to a guarantee. In order to appreciate the appellant's arguments that under Act,
1872, the letter amounted to a guarantee, it is helpful to reproduce sections 126 and 127
of Act, 1872:--

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"126. A "contract of guarantee" is a contract to perform the promise, discharge the
liability of a third person in case of his default. The person, who gives the guarantee, is
called the "surety", the person in respect of whose default the guarantee is given is called
the "principal debtor" and the person to whom the guarantee is given is called the
"creditor". A guarantee may be either oral or written."

127. Anything done, or any promise made, for the benefit of the principal debtor may be
a sufficient consideration to the surety for giving the guarantee."

23. In support of his contention that the document is a guarantee, learned counsel for the
appellant has in particular placed reliance on the following cases:--

(i) State Engineering Corpn. Ltd. v. National Development Finance Corpn. 2006 SCMR
619;

(ii) Rafique Hazquel Masih v. Bank Alfalah Ltd. 2005 SCMR 72;

(iii) United Bank Ltd. v. Pakistan Industrial Credit Investment Corpn. Ltd. 2002 CLD
1781.

24. We are, however, not persuaded by the arguments of the appellant's counsel that the
letter amounts to a guarantee under the above cited sections and case law. A guarantee
needs the involvement of three parties, however, it seems that the letter only involves two
parties, therefore, it cannot fall within the definition of a guarantee. This is more so since
the letter was given by respondent No.2 after the contract of sale between the respondent
No.1 and the appellant had already been breached by respondent No.1.

25. We are of the considered view that the learned Single Judge rightly found that the
effect ' of the letter was a substitution of liability from respondent No.1 to respondent
No.2 and was not a guarantee. Reliance is placed on the case of Bagha Co-Operative
Society v. Debi Mangal Prasad AIR 1937 Patna 410 and the case of Ramchandra v.
Shapurji AIR 1940 Bombay 315. In the latter was held as under:--

....A contract of guarantee involves three parties, the creditor, the surety and the principal
debtor and a contract to which those parties are privy. There must be a contract, first of
all, between the principal debtor and the creditor. That lays the foundation for the whole
transaction. Then there must be a contract between the surety and the creditor, by which
the surety guarantees the debts, and no doubt the consideration for that contract may
move either from the creditor or from the principal debtor or both. But if those are the
only contracts, the case is one of indemnity. In order to constitute a contract of guarantee
there must be a third contract, by which the principal debtor expressly or impliedly
requests the surety to act as surety. Unless that element is present, it is impossible to work
out the rights and liabilities of the surety under the Contract Act....

26. During his arguments, learned counsel for the appellant had submitted that if the letter
was not a guarantee then in the alternative it could amount to a promissory note, in which
case he could rely on it in that context. This is supported by his Memo. of appeal, which
sets out at ground "B" as follows:--

"B. That the learned Single Judge failed to appreciate that the letter of the respondent
No.2 dated 28-5-1974 (Exhibit 5/16) was an admitted document which clearly established
that the respondent No.2 had undertaken to pay to the plaintiff the sum of Rs.5,15,000
after two months. The said document having been given by the respondent No.2 in
consideration of the promise of the plaintiff not to sue the respondent No.1 was in the
nature of a guarantee In any event, and without prejudice to the above contention, the
said letter clearly amounted to an acknowledgement of debt owned by the respondent
No.2 to the plaintiff of an amount of Rs. 5,5,15,0000."

27. In our view it is open to the appellant to argue in the alternative that the letter is, in
fact, a promissory note, which is enforceable against respondent No.2. Furthermore, there
is authority that where a document can be construed to fall within a number of categories
then it is up to the court to determine the category/nature of the document and that its

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labelling is not critical. Reliance is placed on the case of Muhammad Rafique v.
Muhammad Nawaz 2001 CLC 318, where it was held as under:--

"....It is the contents of the document which bring such document within the definition of
a promissory note. The heading given to such document is not legally relevant..."

28. For a document to be regarded as a promissory note, it must fulfil the definition as set
out in section 4 of the Negotiable Instruments Act, 1881, ("Act, 1881"). Section 4 of Act,
1881 is reproduced herein below:

"4. "Promissory note." A "promissory note" is an instrument in writing (not being a bank-
note or a currency note) containing an unconditional undertaking, signed by the maker, to
pay [on demand or at a fixed or determinable future time] a certain sum of money 'only
to, or to the order of, a certain person, or the bearer of the instrument."

29. The ingredients of a promissory note, as set out in section 4 of Act, 1872, have been
affirmed in the cases of Gopaldas v. Ramdeo AIR 1957 Rajasthan 360 (V. 44 C 138 Nov.)
and Badhava Singh v. Charan Sindh AIR 1955 Rajasthan 85 (Vol.42, C.N.28). In the
latter case it was held as under:--

"(2) The question is whether the document, with which we are concerned, is a promissory
note or not. It is in the following words:--

"Shriman Sahu Raghunandan Sharanji, Sambhar Lake,

In your account Rs.4,668.15 are due from my son Mahesh Chandra. I shall pay that
amount by December, 1948. You rest assured.

Brijraj Shazran" 6-8-48,

The definition of a promissory note is given in S.4, Negotiable Instruments Act, in these
words:--

"A promissory note is an instrument in writing (not being a bank note or a currency note)
containing an unconditional undertaking, signed by the maker, to pay a certain sum of
money only to, or to the order of a certain person, or to the bearer of the instrument."

(3) In order therefore that a document should be a promissory note, it is necessary that
there should be;

(i) an unconditional undertaking to pay,

(ii) the sum should be a sum of money and should be certain,

(iii) the payment should be to or to the order of a person who is certain, or to the bearer of
the instrument,

(iv) and the maker should sign it.

If these four conditions are present, a document becomes a promissory note. We have,
therefore, to see whether in this document all these four conditions are present. We may
mention that the Court below has held that this document is not a promissory note
because it is not certain to whom the money is to be paid. The other three conditions,
namely,

(i) that there should be an unconditional undertaking to pay,

(ii) that the amount should be an ascertained sum of money, and

(iii) that the document should be signed by the maker, are present in this case. Now all
that has to be seen is whether the person to whom the payment is to be made is certain or
not."

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30. The question, therefore, arises, whether based on the requirements of section 4 of Act,
1881 the, letter can be construed as a Promissory Note.

31. It is important to read Exhibits 5/16 and 5/17 together. Exh.5/16 cannot be construed
without reference to Exh. 5/17. When read together, these documents show that the
learned Single Judge has rightly held that the respondent No.1 has passed on his
liabilities to respondent No.2. In accepting this liability, respondent No.2, pursuant to
respondent No.1's letter dated 25-5-1974, on 28-5-1974 issued the appellant a credit letter
for the amount of Rs.515,000, which was to be payable by respondent No.2 within two
months from receipt thereof.

32. In our view, the letter itself was the credit letter. There was no other additional credit
letter, which had to be issued. In our interpretation of the letter read in context with Exh.
5/17 the final word in the paragraph ought to have read as "hereof' instead of "thereof'.
This was a minor technicality which could not in our view defeat the intention of the
letter which was to oblige respondent No.2 to pay the appellant the sums mentioned in
the letter. Reliance is placed on Maxwell on the Interpretation of Statutes, Twelfth
Edition, on page 212, which states as under:--

"On the general principles of avoiding in-justice and absurdity, any construction will, if
possible, be rejected (unless the policy of the Act requires it) if it would enable a person
by his own act to impair an obligation which he has undertaken, or otherwise to profit by
his own wrong. A man may not take advantage of his own wrong. He may not plead in
his own interest self-created necessity."

33. Although the above citation is said to be applicable to Statutes we see no reason why
it should also not be used as an aid to interpretation with respect to other documents such
as (in this case) the letter. In our view it would cause an injustice if we do not interpret
the final words as "hereof' as opposed to "thereof", which may cause the intention of the
letter to be defeated. In our view a liability which is properly payable should not be
defeated by a legal technicality.

34. Based on our interpretation of the letter, we consider that it contains:---

(i) an unconditional undertaking to pay;

(ii) a sum of money which is certain;

(iii) a payment that is to be made to a person;

(iv) a signature on behalf of respondent No.2.

35. As such the letter meets all the requirements of a promissory note. The position,
therefore, is that the letter is promissory note. It is correct that the promissory note has
not been stamped, however, this will not exclude it from being enforceable. Reliance is
placed on the case of Farid Akhtar Hadi v. Muhammad Latif Ghazi 1993 CLC 2015,
where at page 2020 it was held as follows:--

"....However, section 36 of the Stamp Act provides that the document once admitted in
evidence although not admissible by virtue of section 35 of the Act could not be
challenged at any subsequent stage of the same suit or proceedings on the ground that the
same had not been duly stamped..."

36. The two letters i.e. Exhs. 5/16 and 5/17 when read together clearly show that
respondent No.1, on the basis of past and current business transactions with respondent
No.2, with the consent of respondent No.2, had passed on his liability to respondent No.2.
The appellants were aware of this arrangement as the letter from respondent No.1 to
respondent No.2 (Exh. 5/17) was copied to them and agreed to it as pursuant to Exh. 5/17
the letter by respondent No.2 was sent to them (and was thereafter relied upon by them as
can be seen by them sending a legal notice for payment to respondent No.2). According
to the appellant, respondent No.2 even initially accepted his obligation by asking for time
to make payment.

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37. This correspondence (Exhs. 5/16 and 5/17) converted respondent No.2 into the
principal debtor, who was liable to the appellant under a promissory note.

38. In our view, respondent No.2 had full knowledge and was well aware of his
obligation to pay the appellant by virtue of the letter but has deliberately tried to wriggle
out from his obligation to make payment on technical grounds.

39. As mentioned earlier, technicalities should not be used in order to circumvent the true
intention of the agreement between the parties or as an excuse to avoid genuine liability
properly and willingly incurred.

40. In this regard, we rely on the cases of Rahim Bakhsh v. Allah Jiwaya 1992 CLC 2433
and United Bank Ltd. v. Pakistan Industrial Credit Investment Corpn. Ltd. 2002 CLD
1781. In the latter case, it was held by the Honourable Supreme Court on the point of
technicalities as under:--

"....The guarantor in this case particularly the Bank cannot avoid its liability on all these
technicalities. Reference in this regard is made to Manager, Jammu and Kashir, State
Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 where the learned
Judges of this Court stated that mere technicalities unless offering insurmountable hurdle
should not be allowed to defeat the ends of justice."

41. The contention of respondent No.2 that the guarantee had been frustrated and his
reliance on section 135 of Act, 1872 is, therefore, no longer relevant as we have found the
letter not to be a guarantee but a promissory note. In any event, with regard to the alleged
new arrangement that had been put in place by the appellant, there is no evidence on
record to prove the existence of any such arrangement. The respondent No.2 may be
correct in asserting that this was a business arrangement between the two parties.
Nevertheless, if a party issues a promissory note to another party then he is bound by
such obligations contained therein.

42. The fact that a document, like the letter, was unclear in its labelling and its legal effect
of passing on liability from respondent No.1 to respondent No.2 was not fully appreciated
by the appellant at the time should not debar the appellant from seeking to recover money
rightfully owed to him.

3. Whether you call the letter a guarantee, a promissory note, an indemnity or by any
other nomenclature its intention, as evidenced by the correspondence (and with the
consent of respondent No.2), was to create an obligation on respondent No.2 to make
payment to the appellant. In our view, based on the facts and circumstances of this
particular case, it would not meet the ends of justice to allow the respondent No.2 to
wriggle out of his obligation to pay the appellant under the letter simply because the
appellant bona fide, based on an unclearly labelled and worded letter but which intention
was clear at the time, sued him as the guarantor as opposed to the judgment-debtor. In
this regard we place reliance on the case of Rahim Bakhsh (supra), wherein it was held as
under:--

"....Written documents which appear to have been executed without tinge of fraud and
compulsion are entitled to great respect, in order to confer security on human dealings., If
on the mere allegations of persons interested in destroying a transaction, the transaction is
destroyed, faith of people in the sanctity of written agreements will be shaken, and there
will be no assurance to the parties to the agreement that it will survive baseless attacks
and will remain effective. It will be tyranny to the people if they are made to live in a
state of affairs, under which solemn human dealings are deprived of security of
survival...."

44. Accordingly, based on the facts and circumstances relating to this appeal, we set aside
the findings of the learned Single Judge in the Impugned Judgment that respondent No.2
cannot be held legally liable under Exh. 5/16 and hold that Exh. 5/16 was a Promissory
Note and can be relied upon by the appellant against the respondent Na.2.

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45. As such, we allow this High Court Appeal No.150 of 1989 for the foregoing reasons
and decree the suit against the respondents Nos.1 and 2, jointly and severally, with
interest from 9-8-1974 till realization, however, with no order as to costs.

M.H./M-94/L Intra-court appeal allowed.

10 of 10
2009 C L D 1129

[Karachi]

Before Muharrem G. Baloch, J

MUHAMMAD HANIF SHAIKHANI through Special Attorney ---Plaintiff

Versus

MUHAMMAD KHALID SHAFI---Defendant Summary

Suit No.905 of 2007, decided on 24th April, 2009.

Negotiable Instruments Act (XXVI of 1881)---

----Ss.79 & 80---Civil Procedure Code (V of 1908), S.34 & O.XXXVII, R.2---Recovery
of money---Promissory note---Presumption---Ex parte decree---Interest, imposing of---
Plaintiff produced original promissory note, legal notice, postal receipt, application forms
for allotment of flat signed by defendant and sub-lease of flats---Defendant had chosen to
remain absent and failed to appear in Court and to obtain leave to defend the suit, as
provided under O.XX VII, R.2 (2) C.P.C.---Effect--Allegation of plaintiff was deemed to
be admitted and he was entitled to decree---Suit was based on promissory note which was
negotiable instrument and presumption was that same had been issued against
consideration and defendant had not come forward to rebut such presumption---High
Court decreed suit in the sum claimed with interest at 6% per annum in accordance with
Ss.79 and 80 of Negotiable Instruments Act, 1881, from the date of suit till date of
decree---High Court also awarded interest at the rate of 10% per annum from date of
decree till the date when payment was realized in accordance with S.34 C.P.C.---Suit was
decreed accordingly.

Syed Aijaz Hussain v. Syed Abdul Azeem 2008 CLC 41 ref.

Kamal Azfar for Plaintiff.

Defendant Ex Parte.

Date of hearing: 24th April, 2009.

JUDGMENT

MUHARREM G. BALOCII, J.---Plaintiff has brought this suit for recovery of

Rs.9,000,000 (Nine Million) under order XXXVII, C.P.C.

Precisely, the facts of the plaintiffs case are that the plaintiff is a leading businessman in
construction and development areas and is also one of the directors of Messrs Omema
Construction (Pvt.) Ltd. established under Companies Ordinance, 1984, carrying on
business of building and construction at Karachi. The plaintiffs said company constructed
a project known as Savanna City at Plot No.1 Survey Nos.201, 202, 203, Block 13-D III,
KDA Scheme No.24, Gulshan-e-Iqbal, Karachi, and presented the same for
allotment/booking of public at large. According to the plaint, the defendant booked one
flat bearing No.A-610, Block-A1-2, admeasuring about 159 sq. yards for himself as well
as two other flats bearing No.612, Block-2, 6th floor in the name of Shehnaz Begum wife
of Fareed-ud-Din and Flat No.A-609, Block-A1-2, 6th floor in the name of Muhammad
Saeed son of Muhammad Yaseen. It was further pleaded in the plaint that in order to
obtain facility of loan from the Financial Institution, the company also executed
Indenture of Sublease in favour of respective allottees, as stated above, even without
clearance/payment of full and final sale consideration. The plaintiff further pleaded that
the defendant is/was businessman dealing in sale/purchase of cars under the name and
style of Messrs Fine Car, so also he was engaged in business of properties, therefore,
business relationship between the plaintiff and the defendant was established and the
defendant in the month of October, 2005 requested the plaintiff for friendly loan of
Rs.9,000,000 refundable on demand. The plaintiff, keeping in view the above mentioned
1 of 3
relationship, agreed to extend the loan. According to the plaint on 15-11-2005 the
plaintiff out of his own funds paid an amount of Rs.9,000,000 to the defendant against
execution of promissory note payable on demand in presence of the witnesses on a clear
understanding of refundable on demand. The plaintiff pleaded that in the month of
November, 2006, he demanded the refund of the amount, as stated in the promissory note
to which the defendant delayed the same on one or the other pretext. Ultimately, the
defendant disappeared and despite hectic efforts the plaintiff could not search him. It is
further pleaded that for the last five months from the filing of the suit the whereabouts of
the defendant were not known, therefore, it was believed that he has gone underground
with mala fide intention and ulterior motives to evade his creditors including Lie plaintiff.
The plaintiff further pleaded that he served legal notice dated 12-4-2007 upon the
defendant on the address as given in the promissory note but the defendant failed to reply
and comply with just demand of the plaintiff. Hence, the plaintiff filed this suit with
following prayers:--

(i) Decree for a sum of Rs.9,000,000 (Rupees Nine Million Only) along with mark-up at
Bank rate till realization of amount.

(ii) Cost of the suit.

(iii) Any other relief(s), this Honourable Court deem fit and proper under the
circumstances of the case.

The summons were issued against the defendant through all modes of service including
publication made in Daily Jang in its circulation dated 9-2-2009 but no one turned up on
behalf of the defendant. Consequently, the service was held good and the time was
allowed to the defendant to file the written statement but he failed to file the same within
the stipulated time, therefore, the matter was placed before the Court for final disposal.

Mr. Kamal Azfar, learned counsel for the plaintiff, in support of the claim of the plaintiff
has filed following documents along with statement, which were taken on record:--

(1) Promissory Note dated 15-11-2005.

(2) Legal notice dated April 12, 2007.

(3) TCS postal receipt dated 13-4-2007.

(4) Application form of Mst. Shehnaz Begum signed by the defendant.

(5) Application form of Muhammad Saeed also signed by the defendant.

(6) Application form of the defendant.

(7) Photocopy of sublease of Flat No.A-610.

(8) Photocopy of sublease of Flat No.A-609.

Learned counsel for the plaintiff has argued that this is suit for recovery based on
promissory note in which the defendant has not appeared in Court despite service of
summons of suit upon him and thus it is presumed that the defendant has admitted the
claim of the plaintiff, therefore, he is entitled for decree of the suit, as prayed. He has
placed reliance on the case of Syed Aijaz Hussain v. Syed Abdul Azeem 2008 CLC 41.

I have heard learned counsel for the plaintiff and perused the material placed on record.

The claim of the plaintiff is that he advanced/extended a loan amounting to Rs.9 Million
to the defendant against execution of Promissory Note dated 15-11-2005 and he
demanded refund of the same in the month of November, 2006 to which the defendant
kept him on false hopes and promises on one or the other pretext and ultimately he
disappeared and plaintiff could not search him. According to the plaintiff the defendant
has gone underground with mala fide intention and ulterior motive in order to evade his
creditors including the plaintiff. The above contention of the plaintiff is un-rebutted and
2 of 3
unchallenged. The plaintiff has produced the original Promissory Note dated 15-11-2005,
legal notice dated 12-4-2007, TCS postal receipt dated 13-4-2007, application forms of
Messrs Shehnaz Begum and Muhammad Saeed signed by the defendant, application form
of the defendant, photocopy of sublease of Flats Nos.A-609 and A-610. It is also evident
from the record that the defendant has chosen to remain absent and failed to appear in
Court and obtain leave to defend the suit, as provided under sub-rule (2) of Rule 2 of
Order XXXVII, C.P.C. therefore, the allegation shall be deemed to be admitted and the
plaintiff shall be entitled to a decree.

Furthermore, the suit is based on Promissory Note, which is negotiable instrument and
the presumption is that the same was issued against the consideration and the defendant
has not come forward to rebut this presumption.

In view of the above the suit is decreed in the sum of Rs.9,000,000 (Nine Million) with
interest at 6% per annum in accordance with sections 79 and 80 of the Negotiable
Instruments Act from the date of the suit till the date of decree. The plaintiff is also
further awarded interest @ 10% per annum from the date of the decree till the date the
payment is realized in accordance with section 34, C.P.C. with no order as to costs.

M.H./M-81/K Suit decreed.

3 of 3
2009 Y L R 1387

[Karachi]

Before Khilji Arif Hussain and Arshad Noor Khan, JJ

PERVEZ SHAMIM through Attorney---Petitioner

Versus

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY, KARACHI through

Secretary---Respondent

Constitutional Petition No.D-1440 of 2005, decided on 18th March, 2009.

Pakistan Defence Officers Housing Authority Order (7 of 1980)---

----Art.17(h)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---

Principle of audi alteram partem---Applicability---Cancellation of plot---Eligibility---
Grievance of petitioner was that he was Flight Cadet in year, 1964, therefore, on such
ground plot allotted to him in year, 1975 was wrongly cancelled by the authorities in year,
2005---Validity---Petitioner at the relevant time was not eligible to become member of
Society as his cadetship was terminated in June, 1964, i.e. much earlier to the date of
promulgation of byelaws of Society---Petitioner did not controvert the specific defence
put forward by authority, therefore, it was deemed to be admitted by him---Petitioner
failed to point out that authority while cancelling plot in question acted illegally in
exercising powers conferred on. it by virtue of Pakistan Defence Officers Housing
Authority Order, 1980---Petitioner also could not establish that he was in service of
Pakistan Armed Forces which entitled him to become member of Society by virtue of
byelaw No.7(i) of Pakistan Defence Officers Housing Authority Order, 1980---Authority
had all powers under Art. 17 (h) (i) of Pakistan Defence Officers Housing Authority
Order, 1980, to cancel such allotment which was made or issued in contravention of
byelaws of society or resolution of managing committee of the Society---Authority
rightly acted in accordance with rules and byelaws promulgated for their functioning and
no material was available on record to declare that authority while, cancelling plot of
petitioner acted in excess of powers vested in it or it exercised powers in colourable
manner---Petitioner was not eligible to become member of Society, as Society was
established in year, 1972 while his cadetship had already been terminated in the month of
June, 1964---In spite of receipt of show-cause notices issued by authority, petitioner
chose to remain absent and as such it could not be said that principle of audi alteram
partem had been violated by the authority---Petition was dismissed in circumstances.

2008 SCMR 611 ref.

Anwar Hussain for Petitioner.

Khalid Jawaid for Respondent.

ORDER

ARSHAD NOOR KHAN, J.---By this Constitutional Petition under Article 199 of the
Constitution of Islamic Republic of Pakistan, 1973 the petitioner has questioned the
legality, propriety and validity of the cancellation of plot allotted to him by the
respondent vide letter dated 5th July 2005.

The facts, necessary to decide the present petition in brief are that the petitioner joined
Pakistan Armed Forces as Flight Cadet in the year 1964 and was paid out of defence
services estimates. At the relevant time of his service, the cooperative housing society
namely Pakistan Defence Officers Cooperative Housing Society Limited, Karachi
(hereinafter shall be referred to as "the Society Ltd."), established with sole aim and
object to procure land for the benefits of the armed personnel. The petitioner by virtue of
byelaw No.7 of the Society Ltd., 1972 obtained the membership being No.AF-4977 on
payment of requisite fee., It is further stated in the petition that after scrutiny of record of
1 of 4
the petitioner, he was allotted plot No.214-C, Al Murtaza Commercial Lane-3, Phase-
VIII, admeasuring 200 sq. yards., Karachi by the managing committee of the then society,
in its meeting held on 25th July, 1975. It is further stated in the plaint that the said plot
was allotted to him on the basis of ballot' and after allotment all the necessary charges
were paid by him and since last about 30 years no one has raised objection regarding
membership of the petitioner or allotment of the plot in question and to the utter surprise
and disappointment of the petitioner, he received letter dated 5th July 2005 from
respondents thereby informing him about cancellation of his aforesaid plot and the said
Plot was cancelled without hearing of the petitioner or without issuance of any show-
cause notice as such the order of cancellation of the plot dated 5th July 2005 is illegal,
inoperative, mala fide, ultra vires to the Constitution and prayed to declare the same
having no lawful effect.

The respondent filed their objections stating therein that on scrutiny of the file of the
petitioner it revealed that on the day when he acquired membership of the society, he was
not working as armed personnel and obtained the membership by concealing the material
facts and that he is/ was also not working as civilian members of the armed forces and a
show-cause notice was sent to his address available with the respondent and subsequently
it revealed that he was residing in U.S.A. therefore another show-cause notice was sent to
him on the address of U.S.A. but petitioner did not respond to the said show-cause notice
sent to him on his both addresses. Thereafter reminders have also been sent to him on his
both the addresses which were received by him but he did not respond, therefore the plot
in question was cancelled.

We have heard Mr. Anwar Hussain Advocate for the petitioner and Mr. Khalid Jawaid,
Advocate for the respondent.

Mr. Anwar Hussain, Advocate for the petitioner vehemently contended that the petitioner
is a member of the society and was lawfully allotted the plot in dispute which has been
cancelled by the respondent without issuing any show-cause notice to him or without
affording an opportunity of hearing to the petitioner, 'as such, bright principle of natural
justice has been violated and the impugned cancellation letter is liable to be declared as
illegal, inoperative, void and is of no legal consequences. In support of his contention, he
has relied upon an unreported judgment of this Court passed in CP No.D-414/2004 Mst.
Ghaur Jillani v. Pakistan Defence Officers Housing Authority.

Mr. Khalid Jawaid, advocate for respondent while refuting the arguments advanced by
the learned counsel for the petitioner has vehemently contended that the petitioner
practised fraud with the respondent in obtaining membership of the then society as at the
time of establishment of the then society he was not in service of armed forces, which is a
basic requirement of byelaw No.7(i) of the society. He further contended that the society
subsequently had been converted into an authority by the President Order No.7 of 1980,
as Pakistan Defence Officers Housing Authority Order, 1980 and on scrutiny of the case
of the petitioner, it revealed that he was not in the services of the armed forces, therefore
he was served with the show-cause notice and subsequently upon his failure to reply
show- cause notices, cancellation of his plot is not unlawful. In support of his contention,
he has relied upon the case of Mustafa Lakhani v. Pakistan Defence Officers Housing
Authority, Karachi reported in 2008 SCMR 611.

We have considered the arguments advanced on behalf of the parties and have gone
through the material available before us.

The petitioner is claiming membership of the society on the basis of byelaw No.7 of the
society, which was promulgated in the year 1972 and by virtue of byelaw No.7(i) the
membership was allowed to him, which speaks about the qualification of members to be
the officer of the Pakistan Armed Forces and civilian officer paid from the defence
service estimates. The claim of the petitioner is that he joined Pakistan Air Force as Flight
Cadet in the year 1964 but has concealed the fact that when he was discharged or
removed from the armed services. The respondents in their objections have categorically
stated that at the relevant time when the society was created, the petitioner was not
qualified to be the member of the society by virtue of byelaw No. 7(i) and the service
record of the petitioner was checked from Air Headquarters Islamabad and Wing
Commander, Air Headquarters Islamabad vide his letter dated 7th October 2002 informed
2 of 4
that Pak-91838 Ex-Flight Cadet Pervez Shamim joined PAF as Flight Cadet on 29-1-
1964. His cadetship was terminated with effect from 24-6-1964 due to poor academic
performance. A perusal of the letter sent by Air Headquarters Islamabad to the respondent
shows that the service of the petitioner-was terminated in the month of June 1964
whereas the society 'was established in the year 1972 and at that relevant time when the
society was established and its byelaws were promulgated, the petitioner was neither the
member of the armed forces nor the civilian Officer paid from the defence services
estimate, as such the petitioner was basically disqualified to become a member of the
respondents society.

The respondents have also produced the show-cause notice, dated 28-6-1990
addressed to the petitioner at his available address of Karachi, wherein the respondent
alleged that on scrutiny of his file, it transpired that the allotment of the Plot No.214-C,
Al-Murtaza Commercial Lane-3, Phase-VIII, was allotted to him in contravention of bye-
laws of the then society and he was not eligible to become the member of the defunct
society under its byelaws on the basis of which the allotment was made to him and he
was required to show cause within 15 days to explain as to why the plot in question may
not be cancelled by the execution Board. The said notice did not return back to the
respondent and as per case of the respondent the residence of the petitioner is at U.S.A.,
therefore they sent another show-cause notice dated 11th November 1991 to the
petitioner at his address of U.S.A, but again after this notice he did not appear or contact,
therefore the reminder dated 30th November 1991 was dispatched to him, which also
followed by another reminder dated 3rd August 1992 at his residence in U.S.A, but he
remained silent, which compelled the respondent to cancel the plot in question and the
cancellation of the plot was conveyed to the petitioner at his same address of U.S.A.
whereon the show-cause notices and two reminders were sent to him and he not only
received the said cancellation letter but filed the present petition.

The defence put forward by the respondent is fully in the knowledge of the petitioner as
the petitioner has received the copies of the objections along with documents filed by the
respondent and after receipt of the same, petitioner did not controvert the defence taken
by the respondent that he at the relevant time was not eligible to become the member of
the society as his cadetship was terminated in the month of June, 1964, much earlier to
the date of promulgation of the byelaws of ,the society, and the petitioner did not
controvert the said specific defence put forward by the respondent which will deem to
have been admitted by the petitioner. The petitioner has completely failed to point out
that the respondent while cancelling the plot in question acted illegally in exercising the
powers conferred in it by virtue of Pakistan Defence Officers Housing Authority Order,
1980 (President Order No.7 of 1980) not has established that he was in the services of
Pakistan Armed Forces which entitled him to become the member of the society by virtue
of byelaw No.7 (i). The respondent by virtue of Article 17(h)(i) of Pakistan Defence
Officers Housing Authority, Karachi Order 1980 have all the powers to cancel such
allotment which has been made or issued in contravention of the byelaws' of the society
or resolution of the managing committee of the society. The respondent rightly acted in
accordance with the rules and byelaws promulgated for their functioning and no material
is available on record to declare that the respondent while cancelling the plot of the
petitioner acted in excess of their powers vested in them or they exercised the power in
colourable or pregnant manner. In the case of Mustafa Lakhani, supra relied upon by the
learned counsel for the respondents, the Honourable Supreme Court while considering
the scope of Article 17(h) of the Pakistan Defence Officers Housing Authority Order
1980, was pleased to observe, as under:--

"It is settled principle of law that if on the basis of a void order subsequent orders have
been passed either by the same authority or by other authorities, the whole series of such
orders, together with the superstructure of rights and obligations built upon them, must,
unless some statute or principle of law recognizing as legal, the changed position of the
parties is in operation, fall to the ground because such orders have as little legal
foundation as the void order on which the instant case the very basis of allotment being
illegal, void ab initio consequently no legal right was conveyed as such payment and
execution of "a" lease in favour of petitioner was illegal void ab initio hence of no effect
and would not create any right or privilege in favour of the petitioner in respect of said
plot, therefore, the respondents were quite competent to cancel the allotment of plot."

3 of 4
For the afore-stated reasons, we are of the opinion that the petitioner was not eligible to
become the member of the respondent society, when the society was established in the
year 1972 his cadetship had already been terminated in the month of June 1964 and
inspite of receipt of show cause notices, by the respondents, the petitioner chooses to
remain absent, as such, it could not be said that the principle of audi alteram partem (no
one should be condemned unheard) have been violated by the respondents. The petition
being devoid of any merit, is hereby dismissed summarily along with pending
applications.

M.H./P-5/K Petition dismissed.

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2008 C L C 41

[Karachi]

Before Nadeem Azhar Siddiqi, J

Syed AIJAZ HUSSAIN----Plaintiff

Versus

Syed ABDUL AZEEM----Defendant

Suit No.942 of 2005, decided on 24th October, 2007.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.2, 3 & S.34---Negotiable Instruments Act (XXVI of 1881), Ss.79 &
80---Suit for recovery of loan amount on basis of dishonoured cheque---Non-appearance
of defendant in court despite service of summons of suit upon him---Failure of defendant
to obtain leave to defend suit---Placing on record original cheque by plaintiff along with
memorandum issued by Bank for return of cheque issued by defendant---Factum of
dishonouring of cheque going unchallenged and un-rebutted---Effect---Allegation in
plaint would be deemed to be admitted by defendant and plaintiff would be entitled to
decree---Suit was based on negotiable instrument, (which would be presumed to have
been issued against consideration---Defendant had not come forward to rebut such
presumption---High Court decreed the suit with interest @ 6% per annum in accordance
with Ss.79 & 80 of Negotiable Instruments Act, 1881 from date of dishonouring of
cheque till date of suit and at the same rate from date of suit till date of decree, and
interest @ 10% per annum from date of decree till date of payment of decretal amount in
accordance with S.34, C.P.C. along with costs of suit.

Wajahat Abbas for Plaintiff.

Nemo for Defendant.

Date of hearing: 11th October, 2007.

JUDGMENT

NADEEM AZHAR SIDDIQI, J.---The plaintiff has filed this suit for recovery of
Rs.50,00,000 under Order XXXVII, Rule 2, C.P.C.

The facts necessary for disposal of the above case are that the plaintiff is a businessman
of Karachi and the defendant is a businessman of Faisalabad. The plaintiff through
Cheque No.0000784642 of Standard Chartered Bank paid an amount of Rs.50,00,000 to
the defendant for investment in the business of defendant. The plaintiff asked for the
refund of the amount, the defendant issued cheque dated 11-6-2005 which was
dishonoured on 16-6-2005.

The summons of the suit was served upon the defendant through publication but neither
the defendant made his appearance nor obtained leave from the court to defend the suit.

The learned counsel for the plaintiff filed a statement dated 11-10-2007 and placed on
record the original cheque of Rs.50,00,000 along with the memorandum issued by the
Bank for return of the cheque issued by the defendant.

Mr. Wajahat Abbas, learned counsel for the plaintiff, submits that the defendant has failed
to obtain the leave of the court to defend the suit and the suit is liable to be decreed. He
further submits that the plaint is on oath and the plaintiff by submitting the original
cheque and memorandum has proved that the defendant has failed to repay the amount to
the plaintiff.

I have heard the learned counsel for the plaintiff and perused the record.
1 of 2
The claim of the plaintiff that he had paid an amount of Rs.50,00,000 to the defendant
through cheque which was repaid by the defendant through cheque which was
dishonoured has gone unrebutted and unchallenged. The plaintiff has also produced the
original cheque and its memorandum to prove his contention. The defendant has failed to
obtain the leave from the Court to appear and defend the suit. Sub-rule (2) of rule 2 of
Order XXXVII, C.P.C. provides that whele the defendant does not apply for leave or
default in appearance and defence after obtaining leave, the allegation in the plaint shall
be deemed to be admitted and the plaintiff shall be entitled to a decree. The suit is based
on negotiable instrument and the presumption is that the same was issued against
consideration and the defendant has not come forward to rebut the presumption.

In view of the above the suit of the plaintiff is decreed with interest @ 6% per annum in
accordance with sections 79 and 80 of the Negotiable Instruments Act from 16-6-2005 to
the date of the suit and at the same rate from the date of the suit till the date of decree.
The plaintiff is also entitled to interest @ 10% per annum from the date of the decree to
the date of payment in accordance with section 34 of C.P.C. along with cost of the suit.

Office is directed to prepare the decree in the above terms.

S.A.K./A-114/K Suit decreed.

2 of 2
2007 S C M R 518

[Shariat Appellate Jurisdiction]

Present: Justice Javed Iqbal, Chairman, Justices Sardar Muhammad Raza Khan, Ch. Ijaz
Ahmed, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhari, Members

SHERAZ TUFAIL---Petitioner

Versus

THE STATE---Respondent

Jail Petition No.70(S) of 2004, decided on 8th November, 2006.

(On appeal from the judgment dated 1-4-2004 passed by Federal Shariat Court, in Jail
Criminal Appeal No.296/I of 2003).

(a) Penal Code (XLV of 1860)---

----Ss. 302(b)/34/201/377---Reappraisal of evidence---Circumstantial evidence---Scope--

Awarding of capital punishment---Circumstantial evidence is one of the modes to find out
guilt or innocence of accused---If circumstantial evidence is sufficient to connect accused
with the offence beyond any reasonable doubt, accused can be awarded capital
punishment on the basis of such evidence.

Jaffar Ali's case 1998 SCMR 2669; Muhammad Akbar's case 1995 SCMR 693; State v.
Minhun alias Gul Hassan PLD 1964 SC 813 and Manjeet Singh's case PLD 2006 SC 30
ref.

(b) Qanun-e-Shahadat (10 of 1984)---

----Arts. 113 & 133---Admitted fact---Fact not cross-examined---Effect---If defence has

failed to cross-examine witness about a specific portion of his statement of examination-
in-chief, such unchallenged statement would be deemed to have been admitted by
defence.

(c) Penal Code (XLV of 1860)---

----Ss. 302(b)/34/301/377---Reappraisal of evidence---Interested witness---Evidentiary

value---Scope---Relationship is not sufficient to discard statement of interested witness.

Roshin's case PLD 1977 SC 557 rel.

(d) Penal Code (XLV of 1860)---

----Ss. 302(b)/34/201/377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of

1979); S.12---Constitution of Pakistan (1973), Art.203-F(2-B)---Reappraisal of
evidence---Extra-judicial confession---Accused was convicted after trial and sentenced to
imprisonment for life, which was maintained by Federal Shariat Court---Plea raised by
accused was that both the courts had wrongly convicted him on the basis of
circumstantial evidence produced by prosecution in shape of extra-judicial confession---
Validity---Both the courts below had given finding that accused had made confessional
statement voluntarily before his own nearest relative who appeared as prosecution
witness---Confession of accused was also corroborated with other pieces of evidence
recovered during. investigation---Conviction could be awarded on the basis of
circumstantial evidence alone---Both the courts below had convicted and sentenced the
accused after proper appreciation of evidence on record---Concurrent conclusions arrived
at by courts below could not be interfered by Supreme Court in exercise of jurisdiction
under Art.203-F(2-B) of the Constitution---Supreme Court declined to interfere with the
conviction and sentence awarded by both the courts below---Leave to appeal was refused.

1 of 4
Muhammad Akbar's case 1995 SCMR 693; State v. Minhun alias Gul Hassan PLD 1962
SC 813; Talib Hussain's case 1981 SCMR 174; Muhammad Arshad's case 1992 SCMR
1187; Muhammad Fayyaz's case PLD 1984 SC 445; Khuda Bakhsh's case 2004 SCMR
331; Daulat Ali's case 1999 SCMR 845; Syed Sharifuddin Pirzada's case PLD 1972 SC
363; Ch. Muhammad Yaqoob's case 1992 SCMR 1983; Abdus Samad's case PLD 1964
SC 167 and Nazir Ahmad's case 1994 SCMR 58 rel.

Rafaqat Hussain Shah Advocate Supreme Court for Petitioner.

Nemo for Respondent.

ORDER

JUSTICE CH. IJAZ AHMED (MEMBER).--- The petitioner has sought leave to appeal
against the judgment of the Federal Shariat Court wherein the appeal filed by the
petitioner against his conviction was dismissed. The brief facts giving rise to this petition
are that petitioner is involved in a case F.I.R. No.226 which was registered at Police
Station Gujar Khan on the complaint of Ghulam Murtaza P.W.7 under sections
302/34/201 of P.P.C. and section 12 of Offence of Zina (EOH) Ordinance, 1979 and
section 337, P.P.C. The facts as narrated in the F.I.R. are as follows:

"Facts of the case, in brief, are that on 14-5-1995, report was lodged by one Ghulam
Murtaza son of Mir Zaman with Police Station Gujar Khan, it was alleged that his son
namely Faisal Murtaza aged about 15-16 years disappeared from his house on 1-5-1995
at about 11-00 a.m. and also took away with him, a camera, two baby golden ear-rings,
two male finger rings golden, two baby "Taveez", golden, one Tikka, one female finger
ring, eight bangles, four female finger rings, one pair of "Kuntaz" and a big garland.
According to the complainant, on the same day at about 2-00 p.m., Khuda Dad and Wadi
Hussain P.Ws. (not produced) had seen said Faisal Murtaza with Muhammad Nisar and
Muhammad Abid at Wagon Adda Chhina. According to the complainant, he tried to find
his son but the efforts remained unfruitful and it was only on the day of reporting' the
matter that he found the dead body of his son floating in a deserted well of Mouza Tanky
Maira of village Balwalial. Complainant further disclosed that a single piece of shoe of
the deceased had led him to the well. It was further alleged by the complainant that he
had a reason to believe that his son was killed by the accused persons namely,
Muhammad Nisar and Muhammad Abid. On the stated allegations a formal F.I.R. No.226
dated 14-5-1997 under sections 302/201/337, P.P.C. was registered at Police Station
Gujar Khan."

2. The challan was submitted before the competent Court after investigation against the
petitioner and his co-accused. The trial Court after completing the legal formalities, vide
its judgments dated 20-8-1997 acquitted the accused by extending them benefit of doubt.
The complainant being aggrieved filed Criminal Appeal No.89 of 1997 before the Federal
Shariat Court which was accepted vide judgment dated 11-12-2000 with the consent of
the parties and the judgment of the trial Court was set aside in view of discrepancies in
the judgment of trial Court and the case was remanded to the trial Court to decide it in
accordance with law after rectification of the defects pointed out by the Federal Shariat
Court with the further direction that P.W.8 Liaqat Ali be recalled and defence be given an
opportunity to cross-examine him. After remand co-accused of the petitioner was
disappeared and declared proclaimed offender. The trial Court after remand convicted the
petitioner under section 302(b), P.P.C. and sentenced him imprisonment for life as Tazeer
with fine of Rs.50,000. In ease of default in payment of fine, to further undergo six
months' S.I. The compensation under section 544-A, Cr.P.C. was awarded amounting to
Rs.50,000. He was also convicted under section 201 of P.P.C. and sentenced to undergo
three years with fine of Rs.20,000 and in ease of default in payment of fine to further
undergo two months. The sentences awarded to the petitioner were ordered to run
concurrently with benefit of section 382-B of Cr.P.C. Petitioner being aggrieved filed Jail
Criminal Appeal No.296-I of 2003 before the Federal Shariat Court which was dismissed
by the Federal Shariat Court as mentioned above. Hence, this petition.

3. The learned counsel for the petitioner submits that occurrence was not witnessed by
any witness, therefore, it was blind murder. Both the Courts below had convicted the
petitioner on the basis of circumstantial evidence produced by the prosecution in the
2 of 4
shape of extra-judicial confession, recoveries of the robbed articles from the possession
of' the petitioner and his co-accused (P.O.), medical evidence and Chemical Examiner's
report. He further submits that circumstantial evidence is always a weak evidence and
one piece of weak evidence cannot be corroborated with other weak evidence. Petitioner
was convicted and sentenced on the basis of the confessional statement made by his co-
accused which was not permissible under the law. This fact was not considered by both
the Courts below in its true perspective. He further submits that petitioner could not be
convicted on the basis of confessional statement. He further submits that both the Courts
below had come to the conclusion that petitioner had not committed offence under
section 12 of Hudood Ordinance and section 337 of P.P.C. as the prosecution had failed to
prove the charge of commission of aforesaid provisions against the petitioner as evident
from para. 25 of the judgment of the trial Court. He further submits that prosecution
witnesses are interested and inimical witnesses, therefore, both the Courts below were not
justified to convict and sentence the petitioner on the basis of the statement of the
interested witnesses, without any independent corroboration.

4. We have considered the submissions made by learned counsel for the petitioner and
perused the record. The contention of learned counsel for the petitioner that petitioner
cannot be convicted and sentenced on the basis of circumstantial evidence has no force.
The circumstantial evidence is one of mode to find out guilt or innocence of the accused.
In fact awareness has been given to the world 1400 years ago by the Allah/the Almighty
in the Holy Book of Qur'an in Sura-e-Yousif wherein this method of proving guilt or
innocence was highlighted. The relevant verses are reproduced hereunder:

"26. He murmured "It was she who sought my person One of her companions suggested a
solution: "If his shirt is rent in front, she speaks the truth, and he cloth lie!

27. "But if his shirt is rent in the rear, then she doth lie and he is truthful!"

28. So when he saw his shirt rent in the rear, he said, "This is women's guile. And
women's guile is great! (The Book The Message of the Qur'an English translation by
Hashim Amir Ali)."

5. It is pertinent to mention here that extra-judicial confessions were made by the

petitioner and his co-accused (P.O) before Liaqat Ali P.W.B. Petitioner is brother of
P.W.8's sister-in-law as evident from the examination-in-chief of the statement of P.W.B.
Defence has failed to cross-examine him about this portion of the statement of
examination-in-chief of P.W.8 meaning thereby his statement to this extent has gone un-
challenged, therefore, it was admitted by the petitioner under the provisions of Qanun-e-
Shahadat Order and law laid down by this Court in various pronouncements. See Noor
Jehan Begums' case 1991 SCMR 2300. It is pertinent to mention here that his confession
is corroborated by the following pieces of evidence:

(i) Recoveries of robbed articles from the possession of the petitioner.

(ii) Medical evidence.

(iii) Chemical Examiner's report.

6. Both the Courts below after proper appreciation of evidence had given finding of fact
that the aforesaid piece of evidence duly corroborated the confession made by the
petitioner and his co-accused. It is also a settled law that mere relationship is not
sufficient to discard the statement of the interested witnesses as law laid down by this
Court is Roshin's case PLD 1977 SC 557. The prosecution witnesses had faced; lengthy
cross-examination but the defence had failed to shake their veracity. Both the Courts
below came to the conclusion that statement of the prosecution witnesses inspiring
confidence. In case all the pieces of evidence are put in a juxtaposition, then
circumstantial evidence is sufficient to connect the petitioner with the offence beyond any
reasonable doubt and petitioner could have been awarded capital punishment on the basis
of aforesaid evidence as law laid clown by this Court in Jaffar Ali's case 1998 SCMR
2669. Both the Courts below had taken lenient view not to award capital punishment to
the petitioner. The learned Federal Shariat Court after re-examining the evidence on
record maintained the conviction of the petitioner after considering all the case-law laid
3 of 4
down by this Court in various pronouncements. The testimony of Liaqat Ali P.W.8
regarding the extra-judicial confession made by the petitioner and his co-accused (P.O.)
Pervez Saleem cannot be under any circumstances brushed aside as not inspiring
confidence. Liaqat Ali P.W.8 was close relative of the petitioner as mentioned above. The
evidence of the Liaqat Ali P.W.8 finds corroboration from the strangulation marks found
on the body of the deceased as also from the discovery of the dead body from that very
place where the petitioner had stated that they had thrown it coupled with the fact that
article (i.e. iron box, a pair of golden car-rings) belonging to the deceased were recovered
from the house of the petitioner on his pointation. The said recovery was believed by the
Courts below in view of law laid down by this Court in various pronouncements. See
Muhammad Akbar's case 1995 SCMR 693. Now we will examine the confessional
statement of the convict/petitioner and his co-accused (P.O.) Both the Courts below had
come to the conclusion that convict/petitioner had given confessional statement
voluntarily before P.W.8 Liaqat Ali. The petitioner/convict had denied this fact in his
statement made under section 342, Cr.P.C. The proposition of law regarding confession
was considered by this Court iii the State v. Minhun alias Gul Hassan PLD 1964 SC 813.
The relevant observation is as follows:--

"Unless, a retracted confession is corroborated in material particulars it is not prudent to

base a conviction in a criminal case on its strength alone. It is the duty of the Court that is
called upon a retracted confession to enquire into all the material points and surrounding
circumstances and satisfy fully that the confession cannot but be true."

7. We have minutely gone through the judgment of the learned trial Court as well as the
impugned judgment. The entire evidence has been examined with the assistance of the
learned counsel of the petitioner. After having gone through the entire record, we are of
the view that prosecution has established its case by producing cogent and concrete
evidence. Recent trend of this Court is that conviction could have been awarded on the
basis of retracted confession without any corroboration. See Manjeet Singh's case PLD
2006 SC 30. The relevant observation is as follows:

"This is a settled law that a retracted confession either judicial or extra-judicial, if is

found truthful and confidence-inspiring and also qualifies the test of voluntariness, can be
used for conviction without looking for any other sort of corroboration."

8. As mentioned in the case in hand that both the Courts below had given finding that
petitioner/convict had made confessional statement voluntarily before his own nearest
relative P.W.8 Liaqat Ali. His confession was also corroborated with other pieces of
evidence mentioned above. It is settled law that conviction can be awarded on the basis of
circumstantial evidence alone as law laid down by this Court in the following judgments:

(i) Talib Hussain's case 1981 SCMR 174, (ii) Muhammad Arshad's case 1992 SCMR
1187, (iii) Muhammad Fayyaz's case PLD 1984 SC 445, (iv) Khuda Bakhsh's case 2004
SCMR 331, (v) Daulat Ali's case 1999 SCMR 845, (vi) Syed Sharifuddin Pirzada's case
PLD 1972 SC 363, (vii) Ch. Muhammad Yaqoob 1992 SCMR 1983, (viii) Abdus Samad's
case PLD 1964 SC 167, (ix) Nazir Ahmad's case 1994 SCMR 58.

9. Both the Court below have convicted and sentenced the petitioner after proper
appreciation of evidence on record. It is a settled principle of law that this Court does not,
interfere in the concurrent conclusions arrived at by the Courts below while exercising
powers under sub-Article (7-B) of Article 203-F of the Constitution. We have also
examined the evidence but we do not find any illegality or infirmity in the impugned
judgment. The petition being devoid of any merit is hereby dismissed.

M.H./S-79/SC Petition dismissed.

4 of 4
2007 Y L R 109

[Lahore]

Before Muhammad Sayeed Akhtar and Mian Hamid Farooq, JJ

HARAPPA TEXTILE MILLS LIMITED---Appellant

Versus

Messrs B.A.S.F. PAKISTAN (PVT.) LIMITED---Respondent

Regular First Appeal No.211 of 2002, heard on 28th October, 2003.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr.2 & 3---Contract Act (IX of 1872), Ss. 73 & 74---Suit for recovery of
amount on basis of cheque---Non-filing of application for leave to appear and defend suit
by defendant---Claim for mark-up/ compensation and legal and other expenses---Suit
filed by plaintiff for recovery of amount plus 20% mark-up/ compensation on amount of
cheque and 5% legal and other expenses, was decreed ex parte against defendant;
however, on filing application of defendant, ex parte decree was set aside, but defendant
did not file application for leave to appear and defend suit after setting aside of ex parte
decree---Decree as prayed for by plaintiff was passed . by the Trial Court---Defendant
claimed that a composite application was filed for setting aside ex parte decree and for
grant of leave to appear and defend the suit, but said application was not available on
record---Copy of alleged application produced by counsel of defendant did not mention
the grounds for grant of leave to appear and defend suit---All the grounds taken by
defendant in said application were regarding setting aside the ex parte decree---In the
absence of any application for grant of leave to appear and defend the suit contents of the
plaint were deemed to be admitted and plaintiff was entitled to a decree---Nothing was
available on record that plaintiff suffered any loss due to the breach of contract and no
agreement between the parties had been placed on record, for recovery of reasonable
compensation under S.74 of Contract Act, 1872---Alleged compensation claimed by
plaintiff, appearing to be in the nature of liquidated damages, same could not be awarded
without any proof of loss---Judgment and decree to the extent of compensation/mark-up
20% and legal expenses 5% was set aside and decree for recovery of original amount of
cheque was upheld.

Allied Bank of Pakistan, Faisalabad v. Messrs Aisha Garments and others 2001 MLD
1955 ref.

Muhammad Yaqub Khan for Appellant.

Muhammad Ikram Zahid for Respondent.

Date of hearing: 28th October, 2003.

JUDGMENT

MUHAMMAD SAYEED AKHTAR, J.---The plaintiff/respondent tiled a suit on 15-6-

1995 under Order XXXVII, C.P.C. for recovery of Rs.4.41,884.76 plus 20% mark-up/
compensation on the amount of cheque and 5% legal and other expenses. The suit was
decreed ex parte against the defendant/ appellant on 22nd March, 1997 by the learned
Additional District Judge, Faisalabad. However, on the application of the appellant the
said decree was set aside on 20-1-2001 on the statement of the learned counsel that he
had no objection to the acceptance of the same. The defendant/appellant did not file an
application for leave to appear and defend the suit after the setting aside of the ex parte
decree. Consequently the decree as prayed for was passed by the learned Additional
District Judge, Faisalabad vide judgment dated 19-2-2002.

2. The learned counsel for the appellant contended that a composite application was filed
for setting aside the ex parte decree and for grant of leave to appear and defend the suit as
1 of 2
such there was no justification for decreeing the suit without disposing of the application
for leave to appear and defend the suit filed by the defendant/appellant. He further
submitted that there was no justification for awarding compensation/mark-up @ 20% and
legal expenses @ 5%.

Conversely the learned counsel for the respondent submitted that no application for leave
to appear and defend the suit was filed after the setting aside of the ex parte decree on 20-
1-2001. In the absence of the same the suit has been rightly decreed. However, he
admitted that the compensation/mark-up @ 20% and legal expenses @ 5% could not be
awarded.

3. We have gone through the judgment of the trial Court and perused the record. The
alleged composite application filed by the defendant/appellant for setting aside the ex
parte decree is not present on the lower Court record. However, the learned counsel
produced a copy of the same from his own file. We have gone through the same. We find
that not a mention has been made about the grounds for grant of leave to appear and
defend the suit. All the grounds taken by the appellant in the said application are
regarding setting aside the ex parte decree. In the absence of any application for grant of
leave to appear and defend the suit the contents of the plaint are deemed to be admitted
and the plaintiff/respondent is entitled to a decree. Under section 73 of the Contract Act,
1872 when a contract has been broken, the party who suffers by such breach is entitled to
receive, from the party who has broken the contract, compensation for any loss or
damage caused to him thereby, which naturally arose in the usual course of things from
such breach. Nothing is present on the record to show that the plaintiff suffered any loss
due to the breach of the contract. Similarly no agreement between the parties has been
placed on record for the recovery of any reasonable compensation under section 74 of the
Contract Act, 1872. The alleged compensation being claimed appear to be in the nature of
liquidated damages. The same could not be awarded without any proof of loss or the
stipulation in the agreement, if any, between the parties. See Allied Bank of Pakistan,
Faisalabad v. Messrs Aisha Garments and others 2001 MLD 1955. We, therefore, partly
allow this appeal and set aside the judgment and decree to the extent of
compensation/markup @ 20% and legal expenses @ 5%. The decree for recovery of
Rs.4,41,884.76 is upheld. No order as to costs.

H.B.T./H-189/L Appeal partly allowed.

2 of 2
2007 M L D 653

[Lahore]

Before Mian Saqib Nisar, J

Mst. SABIHA BEGUM through Legal Heirs---Petitioner

Versus

Mst. UMMAT-UL-ISLAM through Legal Heirs---Respondents

Civil Revision No.1073 of 2002, heard on 20th November, 2006.

(a) Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Transfer of Property Act (IV of 1882), S.54---Qanun-e-Shahadat (10 of

1984), Arts. 102, 132 & 133---Suit for declaration and permanent injunction---Registered
sale-deed in defendant's favour---Plaintiff alleged sale-deed to be result of fraud and
misrepresentation, and invalid for non-payment of sale price---Trial Court decreed suit
and annulled sale---Appellate Court dismissed suit, but awarded decree to plaintiff for
Rs.10,00,000 as sale price not proved to have been paid to her---Validity---Sub-Registrar
had deposed that plaintiff before him had admitted to have received Rs.1,00,000 as sale
price---No attribution of either being biased or partisan could be made against Sub-
Registrar---Statement of Sub-Registrar had not been subjected to cross-examination---
Appellate Court had found that sale-deed was validly executed by plaintiff---Plaintiff in
view of provisions of Art.102 of Qanun-e-Shahadat, 1984 could not controvert through
oral evidence that payment was not made to her---Plaintiff in suit had been claimed either
recovery of amount' decreed in her favour of even amount of Rs.1,00,000--Plaintiff had
led no evidence to prove that value of property was that which had been granted to her by
Appellate Court---Decision of Appellate Court on such point not being based upon
evidence could not sustain---Judgment and decree of Appellate Court directing defendant
to pay Rs.10,00,000 to plaintiff was invalid---High Court set aside impugned judgment
and decree to such extent.

Hakim Ali v. Sakhi Muhammad and 16 others 1996 SCMR 354; Shahid Nasim and 2
others v. Syeda Imtiaz Khatoon PLD 1997 Lah. 243; Syed Sardar Shah and 2 others v.
Qazi Masood Alam and 5 others 2003 CLC 857; Sarfraz Ahmad and 36 others v. Mst.
Sakina Bibi and 35 others PLD 1985 Journal 121 and Ghulam Ali and 2 others v. Mst.
Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.

(b) Qanun-e-Shahadat (10 of 1984)---

----Arts. 132 & 133---Fact deposed in examination-in-chief, if not cross-examined, would

be deemed to have been admitted.

(c) Transfer of Property Act (IV of 1882)---

----S. 54---Qanun-e-Shahadat (10 of 1984), Art. 102---Sale through registered deed---

Non-payment of sale price, plea of---Vendor found to have validly executed sale-deed---
Effect---Vendor in view of provisions of Art. 102 of Qanun-e-Shahadat, 1984 could not
controvert through oral evidence that payment was not made to him.

Riaz-ul-Haq for Appellant.

Ashfaq Qayyum Cheema for Respondent.

Date of hearing: 20th November, 2006.

JUDGMENT

MIAN SAQIB NISAR, J.---The suit for declaration and permanent injunction filed by
Mst. Ummat-ul-Islam, the predecessor-in-interest of the respondents, against the
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petitioner, was decreed by the learned Trial Court; however, on appeal, which was partly
accepted, the suit was dismissed to the extent, that the plaintiff respondent has failed to
prove, that the sale-deed in favour of the petitioner is invalid, but awarded a decree to the
respondent and against the petitioner, to the extent of an amount of Rs.10,00,000, as the
consideration of sale, which according to the Court was not proved by the petitioner to
have been paid to the respondent.

2. Brief facts of the case are, that according to the case of the respondent/plaintiff, she
claims to have never sold the suit-land measuring 80 kanals to the petitioner, through
sale-deed No. 469, dated 11-2-1984 which sale was challenged by her as being the result
of fraud, misrepresentation etc. and also invalid for the lack of the payment of
consideration. The petitioner contested the suit, she set out the defence, that the sale-deed
was validly executed by the respondent in her favour, for the consideration, mentioned in
the deed, thus, keeping in view the pleadings of the parties, the learned Trial Court was
pleased to frame the issues including the important issue i.e. No.4, "Whether the sale-
deed No.469, dated 11-2-1984 is illegal, void, without consideration, based on fraud and
misrepresentation". The parties produced their evidence and as mentioned earlier, the
learned Civil Judge, was pleased to decree the suit in favour of the respondent and against
the petitioner, vide judgment and decree, dated 15-12-2000 and annulled the sale. Against
the above, the petitioner preferred an appeal, and the learned Appellate Court after
scanning through the evidence on the record, has come to the conclusion that "the sale-
deed No.469, dated 11-2-1984, Exh.P.3/D.1 is quite a valid document, having been
executed by the plaintiff with the intention to transfer title of the land mentioned therein,
in favour of the defendant and without any stint of fraud or misrepresentation therewith,
whereas, the payment of consideration/sale price has not been proved and the plaintiff is
therefore, entitled to receive the same from the defendant side at the rate of minimum
average Rs.10,00,000 (ten lacs) (at the rate of Rs.1,00,000 per 8 Kanals) and the
defendant side as such is liable to pay the said amount to the plaintiff. The issue thus
stands decided accordingly".

Both the parties feeling dissatisfied challenged the aforesaid judgment and decree before
this Court; the petitioner filed the instant civil revision, whereas the respondent filed
R.S.A. No.18 of 2002, which obviously was against the conclusion/decision of the
learned Court of Appeal, that the sale-deed is a validly executed document. In this R.S.A.,
the respondent subsequently moved No. 2-C/2002, upon which the order, dated 7-5-2002
was passed, which reads as below:--

"The appellants, through this application, are seeking permission for the withdrawal of
the appeal, on the ground that they are satisfied with the judgment under the appeal.
Further prayer for the refund of the court-fee his also been made.

(2) This application to the extent of the prayer for the withdrawal of the appeal, is
allowed and the accompanying appeal (R.S.A. No.18 of 2002) is dismissed as
withdrawn."

3. The instant revision has come up for hearing today and the learned counsel for the
petitioner has argued, that in the impugned judgment the learned Appellate Court has
clearly concluded, that the sale-deed is a validly executed document by the respondent, as
the amount of the consideration has been mentioned therein and also to have been
received by the respondent, therefore, the Court was in law to read the deed as a whole
and could not hold, that the sale consideration remained unpaid; moreover, independent
of the above, the petitioner has been able to prove that the consideration was duly paid,
and in this behalf, the statement of D.W.1, who was the Tehsildar/Sub-Registrar at the
time of the registration, has clearly deposed that the amount of Rs.1,00,000 was admitted
by the respondent before him, to have been received by her; this part of the statement of
the witness has not been subjected to cross-examination; he was an official, neutral and
unbiased witness and had no cause of making an incorrect deposition. Besides, D.W.2
and D.W.3 have also made similar statements about the payment of the consideration.
Above all, the payment/receipt of the consideration is mentioned in the sale-deed
Exh.P.3/D1 and this being a document in writing, the respondent could not lead any oral
evidence to controvet the written sale-deed, when the said deed, as mentioned above, has
been accepted by the learned Court of Appeal, to be a genuine document, and against
which the R.S.A. brought by the respondent, has been unconditionally withdrawn feeling
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satisfied by the said judgment. It is also mentioned, that according to the provisions of
section 55 of the Transfer of Property Act, 1882, the learned Court below could not grant
the relief of Rs.10,00,000 (ten lacs rupees) to the respondent, because the amount of
Rs.9,00,000 (nine lacs rupees) was not even the part of the consideration, rather it was
only Rs.1,00,000, and this amount of Rs.9,00,000 in fact has been imposed upon the
petitioner as a penalty and the learned Court below to this extent had no jurisdiction. It is
further submitted, that the average of the price calculating at Rs.1,00,000 per 8 Kanals, is
also an imagination of the learned Appellate Court, as there has no evidence on the record
in this regard. Furthermore, that under no law or principle of equity, the learned Appellate
Court, could grant the relief of the payment of Rs.10,00,000, by the petitioner to the
respondent, as this was not even her case/claim in the suit. In support of his contentions,
learned counsel for the petitioner has relied upon the judgments reported as Hakim Ali v.
Sakhi Muhammad and 16 others (1996 SCMR 354), Shahid Nasim and 2 others v. Syeda
Imtiaz Khatoon (PLD 1997 Lahore 243), Syed Sardar Shah and 2 others v. Qazi Masood
Alam and 5 others (2003 CLC 857) and Sarfraz Ahmad and 36 others v. Mst. Sakina Bibi
and 35 others (PLD 1985 Journal 121).

4. Confronted with the above, learned counsel for the respondent states, that all the
witnesses appearing for the petitioner, are closely related, and thus, the possibility of their
making untrue statements cannot be ruled out. In fact, the petitioner was the daughter of
the respondent's real brother, who being the religious scholar and elder of the family had
an influence upon the plaintiff respondent, thus, it is an exercise of such influence, that
the document has been fraudulently procured from the respondent. It is also argued, that
the petitioner was an old, infirm and illiterate lady and had no independent advice of any
male member such as her sons, therefore, in the light of the judgment reported as Ghulam
Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1), the sale by such a lady
cannot be considered to be a valid.

5. I have heard the learned counsel for the parties. The most important aspect of this
litigation is, that the respondent herself having challenged the decree of the learned
Appellate Court regarding the verdict of valid execution of the document had withdrawn
the R.S.A. filed before this Court, as mentioned earlier. Now the questions which remain
for the determination, are, whether the learned Appellate Court after having come to the
conclusion, that the sale was validly made, still could hold that the consideration was not
paid, and if that being so, whether it is the amount of Rs.1,00,000 which was to be paid
by the petitioner to the respondent or Rs.10,00,000 besides, whether such amount which
is not paid by a buyer to a, seller can be recovered in the present suit, or can only be
considered a charge upon the property and for the recovery thereof, the respondent has to
bring a specific/separate suit.

6. I have perused the impugned judgment and the record. In my view, the learned
Appellate Court, had fallen in serious error in holding, that the amount of Rs.1,00,000
was not paid to the respondent as the consideration; there has been a clear statement in
this behalf by the DW1/Syed Iftikhar Ali Shah, the Sub-Registrar, to whom no attribution
of either being biased or partisan can be made; his statement in this regard has also not
been subjected to cross-examination. Thus, the settled principle of the law, that a fact
deposed in the examination-in-chief, if not Gross-examined, shall be deemed to have
been admitted, squarely applies to the matter in hand. Moreover, the sale-deed which is a
written document and once the execution of the document is held by the learned
Appellate Court, to have been validly made by the respondent, the respondent in view of
the provisions of Article 102 of the Qanun-e-Shahadat Order, 1984, could not controvert
through oral evidence, that the payment was not made to her. Lastly, it is held, that the
respondent had never in the suit claimed either the recovery of the amount decreed in her
favour, or even the amount of Rs.100,000; she being the plaintiff has led no evidence to
prove, that the value of the property was that, which has been granted to her by the
learned Appellate Court, thus, the decision in this behalf is based upon no evidence
cannot sustain.

For all what has been stated above, the judgment and decree of the learned Court of
Appeal to the extent of directing the petitioner, to pay a sum of Rs.10,00,000, to the
respondent is invalid, which is hereby set aside. Accordingly, this revision is allowed.

S.A.K./S-2/L Revision accepted.

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