Thursday, 31 May 2012

Value of defective power of attorney document

PLJ 2009 Lahore 472

Present: Rana Zahid Mehmood, J.
m
Mst. AMINA SAEED KHAGA--Petitioner

versus

JUDGE FAMILY COURT, LAHORE and another--Respondents

W.P. No. 3649 of 2008, decided on 11.3.2009.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Special power of attorney in favour of special attorney can be rectified and cured by personal appearance--Legality--Power of attorney was written on simple paper without payment of stamp paper--Not verified by Oath Commissioner--Document was found defective in law--Reservation on signature of petitioner--Validity--Irregularity or illegality in execution of special power of attorney in favour of special attorney can be rectified and cured by personal appearance before trial Court--Case was remanded to trial Court.      [P. 473] A

Raja Jahanzeb Akhtar, Advocate for Petitioner.

Respondent No. 2 proceeded ex-parte.

Date of hearing: 11.3.2009.

Order

This is a constitutional petition filed by the petitioner challenging dismissal of her suit vide judgment and decree dated 31.03.2008 passed by Respondent No. 1/learned Judge Family Court, Lahore which was a suit for dissolution of marriage with Respondent No. 2, while the suit was dismissed on the ground that special power of attorney placed on record as Mark-A was written on simple paper without payment of stamp duty and was also not verified by the Oath Commissioner, therefore, as the petitioner had not appeared before the learned Judge Family Court and suit was filed through special attorney as well, the document stated above was found defective in law, therefore, the learned Judge observed that had the petitioner appeared before him, the irregularity and the illegality stated above could be cured. It is also important to mention that the learned trial Judge had also shown his reservation on the signatures of the petitioner in favour of the special attorney.

2.  Learned counsel for the petitioner has submitted that since the petitioner is present in person in Court today and she can also appear before the learned Judge Family Court, therefore, any illegality or irregularity highlighted by the learned Judge Family Court on the special power of attorney can be cured, therefore, petition may be allowed, case may be remanded to the learned trial Court for proceeding in accordance with law and petitioner undertakes to appear before the learned trial Judge. He submitted that a direction may be given to the learned trial Court to decide the suit within 15-days.

3.  Respondent is proceeded ex-parte as notices were issued to him through TCS and the receipt is available on record, therefore, as none is present from his side, therefore, he is proceeded ex-parte.

4.  Since the petitioner is present in person before this Court today and can conveniently appear before the learned Judge Family Court and the irregularity or illegality in the execution of the special power of attorney in favour of the special attorney can be rectified and cured by her personal appearance before the trial Court, therefore, this petition is accepted and the case is remanded to the learned trial Court/Judge Family Court to proceed further in accordance with law after the petitioner appears before him in person and supports the execution of special power of attorney through her specific statement in accordance  with  law  or  may seek the indulgence of the Court by direct appearance and a power of attorney in favour of the counsel. The trial Court is directed to expedite the trial to conclude the same within 60 days.

(R.A.)      Order accordingly

Personal Appearance through special power of attorney

PLJ 2011 SC 262
[Appellate Jurisdiction]

Present: Iftikhar Muhammad Chaudhry, CJ and Raja Fayyaz Ahmed and Ch. Ijaz Ahmed, JJ.

NAEEM IQBAL and two others--Appellants

versus

NOREEN SALEEM and others--Respondents

Civil Appeal No. 973 of 2006, decided on 28.4.2009.

(On appeal from the order dated 12.4.2006 of the Lahore High Court, Rawalpindi Bench passed in WP No. 1899 of 2004).

Constitution of Pakistan, 1973--

----Art. 185--Appearance through a special attorney--Leave to appeal was granted to examine whether the appearance of appellant through special attorney was illegal--Determination--Validity--Question of--Personal appearance of defendant at the time of filing of written statement--Plaintiff filed the suit and defendant did not appear in person rather filed his written statement through his special attorney who was also his real brother--Additional District Judge passed order against him holding that because the written statement was filed by the real brother of defendant in his capacity as special attorney and it was not filed by the defendant, therefore he did not deserve consideration in the eye of law--High Court confirmed the finding--Held: Observations of lower Courts shall not be maintained and shall not be quoted as precedent in any case in future, nor any party to a suit be non-suited merely for the reason because a plaint/written statement has not been filed by the concerned party in person rather her/his attorney.    [P. 264] A

Mr. Muhammad Ilyas Sheikh, ASC with Appellant No. 2 in person.

Syed Azhar Naveed Shah, ASC with respondent in person.

Date of hearing: 28.4.2009.

Order

Iftikhar Muhammad Chaudhry, CJ.--This appeal has been filed against the order dated 27.4.2006 of the Lahore High Court, Rawalpindi Bench passed in Writ Petition No. 1899 of 2004.

2.  Leave to appeal has been granted on 9.6.2006, inter alia, to examine whether the appearance of the appellant defendant through Special Attorney was illegal.

3.  Respondent Mst. Noreen Saleem filed suit for maintenance of her minor daughter born out of the wedlock of Appellant No. 1 and respondent, as well as; for recovery of dowry articles or in the alternative for value thereof amounting to Rs. 3,17,067/-. Learned Civil Judge dismissed the suit on 12.4.2003 to the extent of recovery of dowry. However, the appeal of the respondent was allowed on 9.6.2004 by the Addl. District Judge. The appellant filed writ petition before the High Court, which was dismissed vide impugned order dated 12.4.2006.

4.  On the last date of hearing, the case was adjourned as the learned counsel wanted to seek instructions from the appellant living out of the country. Today, the learned counsel appeared alongwith Appellant No. 2/brother of the appellant namely, Khalid Mahmood and stated that if respondent takes special oath in support of her above said claim, he undertakes and shall be ready to make the payment of Rs.3,17,067/- as the value of the claimed dowry. However, during course of further submissions, they agreed for the settlement of the dispute in the following terms:--

URDU

5.  In view of the above noted settlement, Khalid Mahmood brother of the appellant is directed to abide by the terms and conditions thereof, failing which his ease shall be dealt with in accordance with the law.

6.  The learned counsel for the appellants stated that the Additional District Judge has taken a very extreme view in respect of personal appearance of the defendant at the time for filing of written statement, though there is no hard and fast rule in this behalf because an attorney appears and acts on behalf of the principal in all civil proceedings unless directed otherwise. He further stated that so long the attorney ie available, he can submit written statement on behalf of the principal before the Family Judge and it would not be illegal nor would amount to contravention of any mandatory provision of the law. It would be appropriate to reproduce herein below the relevant para from the judgment of the Additional District Judge:

"14. Thus, it is evident that for the purpose of filing written statement, the defendant is bound to appear in Family Court himself and his attendance cannot be dispense with. In the present case, the written statement was filed by Khalid Jala, the real brother in his capacity as special attorney of the petitioner, obviously, it was not filed by the defendant/ respondent, therefore, he did not deserve consideration in the eye of law, therefore, this suit remained un-contested. Reliance is placed PLD 2001 Lah. 495."

7.  The above view is also contrary to the earlier view of the learned High Court in the case of Shahida Parveen v. Sher Afzal (2006 MLD 1752).

8.  Now adverting to the above noted development that the parties have since entered into a compromise, therefore, without further dilating upon the point, we direct that the above observations of the Additional District Judge confirmed by the High Court shall not be maintained and shall not be quoted as precedent in any case in future, nor any party to a suit be non-suited merely for the reason because a plaint/written statement as the case may be has not been filed by the concerned party in person rather through her/his attorney.

9.  Khalid Mahmood, brother and attorney for the appellant, has agreed to make the payment of Rs. 3,17,067/- in six equal installments to the respondent commencing from the first of May, 2009. The amount shall be deposited before the fifth of every succeeding month with the Senior Civil Judge/Family Court, Rawalpindi, which shall allow the respondent to withdraw the same. In case of non-payment of two consecutive   installments;   the  Family   Judge  shall  initiate  executing proceedings for effecting the recovery of the balance amount in lump sum.

10.  For the foregoing reasons, the appeal stands disposed of with no order as to costs.

(R.A.)  Appeal disposed of.


Application for grant of exemption from attendance

PLJ 2011 Lahore 324
[Rawalpindi Bench Rawalpindi]

Present: Nasir Saeed Sheikh, J.

TASSAWAR RASHEED--Petitioner

versus

ADDITIONAL SESSION JUDGE, CHAKWAL and 3 others--Respondents

W.P. No. 2698 of 2009, decided on 1.10.2009.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 540-A & Scope--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Provisions of S. 530-A, Cr.P.C. are to be applied by the Court of law according to facts of each case--Duty of an accused does not come to end by just moving an application before the Court for seeking exemption from appearance but it continues thereafter as will, he must wait till his application is duly allowed because the Court has not to pass a mechanical order of acceding to each such an application whenever moved by an accused--The trial Court has to see the possibility of its ability to enforce the direction of personal attendance of the accused at a subsequent stage if and when so deemed necessary by the Court in case he is granted exemption from attendance.       [P. 329] B

Interpretation of Statutes--

----Provisions of law are there to be interpreted and implemented effectively so that the Courts of law remain the authority to enforce it--Petitions dismissed in limine.  [P. 330] C

Pendency of Trial--

----Administration of justice--Accused involved in a criminal case who was allowed concession of being released on bail during the pendency of his trial/appeal cannot be allowed to act at will making it impossible for trial Court to exercise reasonable control over his movements--Held: Tendency cannot be encouraged with an open heart by the Courts, otherwise, confidence in administration of justice which is now being tried to be rebuilt seriously by the Courts of law will be shaken.           [P. 328] A

Ch. Afrasiab Khan, Advocate for Petitioner.

Date of hearing: 1.10.2009.

Order

This order will dispose of the instant writ petition as well as Writ Petition No. 2699 of 2009, as both these petitions are filed by Tasawar Rasheed/petitioner and common questions of law and facts are involved therein.

2.  Brief facts of the case are that petitioner was facing trial in two different cases before the learned Judicial Magistrate, Chakwal, i.e. FIR No. 145, registered at Police Station Dhuman District Chakwal, on 07-09-2007, for offences under Sections 337-A(ii)/ 337-F(vi)/ 337-L(ii)/458/147/149, PPC and FIR No. 75, registered at the same Police Station, on 17-05-2008, for offences under Sections 337-A(i & ii)/337-F (i, iii & v)/337-L(ii)/147/149 PPC. During trial the petitioner sought exemption from his personal appearance under Section 540-A Cr.P.C. Consequently, he moved applications before the learned Trial Court in case FIR No. 145/2007 on 26-09-2008 and in case FIR No. 75/2008 on 30-10-2008 alleging therein that his work visa, which he previously applied in connection with obtaining a job abroad has been received and he has to join his employment in Dubai, therefore, he may be exempted from personal attendance during trial. Learned Trial Court dismissed both the applications through separate orders of even date i.e. 10.11.2008 with following observations:

"Today the accused is absent from the Court and without the permission the accused has been gone abroad. Therefore, the application of the accused for his personal attendance is hereby dismissed."

The petitioner challenged the said orders through two separate revisions and the learned Additional Sessions Judge, Chakwal, dismissed both the revisions vide separate orders of the same date i.e. 17-07-2009 by upholding the orders passed by the learned Trial Court, hence, these writ petitions.

3.  Learned counsel for the petitioner while relying upon the cases reported as PLD 2004 SC 160, PLD 1993 Pesh. 155, 2002 P.Cr.L.J. 947, 1989 P.Cr.L.J. 1652 and 1980 P.Cr.L.J. 1 contends that an accused person who is already abroad and is not personally present before the Trial Court in criminal case can seek benefit of Section 540-A Cr.P.C.; that term "incapable of remaining, before the Court" is thoroughly interpreted in the above referred judgments and the case of the petitioner is fully covered by the case-law cited by him; that the learned Courts below have illegally rejected the applications of the petitioner seeking exemption from his personal attendance.

4.  The judgment PLD 2004 SC 160 (Haji Aurangzeb vs. Mushtaq Ahmad and another) relied upon by the learned counsel for the petitioner is very important and facts of the said case are reproduced hereunder:--

"Petitioner Haji Aurangzeb alongwith his three sons namely, Abdul Ghaffar, Muhammad Siddique and Liaqat are accused, in case FIR No. 448 dated 26-12-2001 registered at Police Station, KTS Haripur under Sections 337-A(ii)/34, PPC. The challan was presented in the Court on 15-03-2002. It is stated that in the month of July, 2002, Muhammad Siddique co accused left the country to avail the offer of an employment in Abu Dhabi. In his absence on 05-09-2002, an application for exemption was filed on his behalf by the learned counsel, Mr. Fareed Khan Alizai, which was rejected on the same date i.e. 05-09-2002. The learned trial Magistrate was of the view, that accused Muhammad Siddique could not have gone abroad without permission of the Court. On revision, this order was maintained by the Sessions Judge, Haripur. A petition (Cr. M.(Q) No. 48/02) under Section 561-A read with Section 540-A, Cr.P.C. filed in the Peshawar High Court Circuit Bench, Abhottabad to call in question the order of the trial Magistrate and of the Sessions Judge was also dismissed by a learned Single Judge of the High Court. The petitioner Haji Aurangzeb co-accused solicits leave to appeal from the judgment of the Peshawar High Court Circuit Bench, Abbottabad dated 12-05-2003."

The Hon'ble Supreme Court in Para 2 of the said judgment observed as under:

"It is extremely doubtful if the petitioner can maintain this petition in his own name. There is nothing on record indicating that Muhammad Siddiq accused who has been denied exemption, has authorized the filing of this petition. The petition is liable to he summarily rejected on this ground alone."

5.  In order to stress for the claim of the petitioner for grant of exemption from appearance before the Trial Court, the learned counsel has made reference to the observations made in the separate judgment written by the Hon'ble Sardar Muhammad Raza Khan, J. in the above reported case, which are as under:--

"8. The points of difference between the legislation in India and that in Pakistan, are, that the section inserted by Act, XVIII of 1923 was still retained in our Code of Criminal Procedure, while some technicalities and requirements were done away with by certain amendments in the Indian part of the sub-Continent. What our law requires the Court to appreciate before the grant of exemption is that: (1) there should be two or more' accused facing the trial; (ii) that the accused asking for exemption should be "before the Court"; and (iii) that, he be represented by a counsel. As already discussed with reference to law of our country, here the words "before the Court" employ the physical presence of an accused before the Court. The words "incapable of remaining before the Court" also give a strong indication of the fact that the accused who at one time was before the Court, has now become, for some reasons or the other, incapable to remain present before the Court for future.

9.  In the conditions given above, I believe that on merit the exemption should have been granted to an accused who has gone abroad to earn his livelihood and who, in view of the prevailing delays in the disposal of cases, cannot wait for the commencement and conclusions of trial."

In spite of the separate judgment written by my lords in the cited case, no indulgence was shown to the case of the accused in the said case whose application for exemption from attendance was dismissed by the Trial Court and the leave to appeal was refused to the said petitioner by the Hon'ble Supreme Court of Pakistan. The learned counsel laid emphasis on the other judgments cited by him in order to persuade this Court for setting aside the orders of the two Courts below but the case-law referred to by him is distinguishable from the facts of instant case.

6.  Learned counsel for the petitioner has referred to the judgment reported as 1980 P.Cr.L.J. 1 in support of his contention that the petitioner has a right to be granted exemption in view of the fact that he remained before the Trial Court for sufficient period of time and merely because that on the date of passing of the order dated 10-11-2008 by the learned Judicial Magistrate/Trial Court the petitioner was not present and has proceeded abroad would not stand in the way of his seeking the exemption from further presence which he was requesting through separate application moved before the Trial Court. The case-law relied upon by the learned counsel for the petitioner is distinguishable from the facts and circumstances of the present case in the following manner. In the case reported as 1980 P.Cr.L.J. 1, the accused who was seeking exemption from his attendance before the Tried Court was present before it at the time of passing of exemption order. The exemption granted to the petitioner by the Trial Court was set aside by the learned Additional Sessions Judge in a revision preferred against order of the Trial Court and the High Court, set aside the said order of learned Additional Sessions Judge and restored that of the Trial Court, granting exemption to the accused.

7.  In the judgment reported as 2002 P.Cr.L.J, 947, the accused was also present before the learned Trial Court/ASJ and was allowed exemption and then he left for abroad and this order was upheld by this Court and was not interfered with while exercising revisional jurisdiction in the revision petition filed by the complainant.

8.  In another case 1989 P.Cr.L.J 1652 the accused was involved in a murder case. He was a doctor himself and suffered from some heart disease and left for abroad after seeking an NOC from the police authorities of the country which was placed on record and he moved an application giving a specific authority letter to his brother to move an application on his behalf, seeking exemption from his presence during trial, which trial was pending before the learned Additional Sessions Judge. His application was rejected by the said forum and the High Court set aside the order of the learned ASJ and accepted the application moved by the brother of the accused who was duly authorized to move such application on behalf of the accused and application was moved accordingly. This case is also distinguishable on the basis of the facts stated above. The facts of the case reported as PLD 1993 Peshawar 155 also indicate that at the time of seeking exemption from his presence during trial the accused involved was present before the trial Magistrate when he was granted exemption. Thus, all the reported judgments passed by the High Court and relied upon by the petitioner's learned counsel are distinguishable from the facts and circumstances of the case.

9.  This Court has also observed that the revision petitions dismissed by the learned Additional Sessions Judge, Chakwal, do not bear the signatures of the petitioner and as per judgment of Hon'ble Supreme Court of Pakistan (PLD 2004 SC 160) the maintainability of the said revision petition is open to serious objections. The order passed by the learned Trial Court dated 10-11-2008 is in accord with the above to referred authoritative judgment of the Supreme Court of Pakistan, wherein leave to appeal was refused to an accused person who has proceeded abroad in a criminal trial without seeking exemption from his attendance. It would be worth mentioning that Challan in case FIR No. 145/2007 was submitted in the Court on 14-02-2008, while it was submitted in the Court in case FIR No. 75/2008, on 30-10-2008. The accused petitioner moved an application for the grant of exemption and left for abroad without permission of the Trial Court.

10.  An accused involved in a criminal case, who is allowed concession of being released on bail during the pendency of his trial/appeal cannot be allowed to act at will making it impossible for the Trial Court to exercise reasonable control over his movements. This tendency cannot be encouraged with an open heart by the Courts otherwise the confidence in administration of justice which is now being tried to be rebuilt seriously by the Courts of law will be shaken. Litigants must have respect for will of law being administered by the Courts and cannot be allowed to jeopardize the authority of the Courts of law making it subservient to their convenience and the procedural supremacy of law is all the more necessary to be ensured in order to bring the system of justice to effective harmony. Had the petitioner been declined bail during the pendendy of the case against him, the petitioner could not have gone abroad notwithstanding that a work visa has been issued in his favour. Concept of release of an accused person on bail is particularly defined in the judgment reported as PLD 1953 Federal Court 170 (The Crown Vs. Khushi Muhammad).

"The basic concept of the word "bail" is release of a person from the custody of police and delivery into the hands of sureties, who undertake to produce, him in Court whenever required to do so. This is the meaning which has been given to the word "bail" in Standard English Dictionaries as well as in Wharton's Law Lexicon and Stroud's Judicial Dictionary. This is also borne out by the form of bond and bail bonds given in Schedule V of the Cr.P.C."

Similarly in the judgment reported as PLJ 1980 SC 318 (Said Mian and another Vs. Mian Said Baghdad and another) the Hon'ble Supreme Court of Pakistan laid down that:

"the word "bail" envisages curtailment of liberties when bail is granted to a person his custody is delivered to his sureties."

11.  The provisions of Section 540-A Cr.P.C. are to be applied by the Court of law according to facts of each case. The duty of an accused does not come to end by just moving an application before the Court for seeking exemption from appearance but it continues thereafter as well; he must wait till his application is duly allowed because the Court has not to pass a mechanical order of acceding to each such an application whenever moved by an accused. The Trial Court has to see the possibility of its ability to enforce the direction of personal attendance of the accused at a subsequent stage if and when so deemed necessary by the Court in case he is granted exemption from attendance. It shall be advantageous to read the last operative part of Section 540-A sub-section (1) of Cr.P.C., which is being reproduced below:--

"540-A. Provision for inquires and trial being held in the absence of accused in certain cases.--(1) At any stage of an inquiry or trial under this Code, where two or more accused are before the Court, if the Judge or Magistrate is satisfied, for reasons to be recorded, that any one or more of such accused is or are incapable of remaining before the Court, he may, if such accused is represented by a pleader dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.

(2)        ......."

12.  In order to ensure that this last portion of Section 540-A of Cr.P.C., practically remains available to the Trial Court, the condition of recording of reasons has been incorporated in the section. This recording of reasons may take the form of demand of heavy surety from the accused for his personal re-appearance during the trial in case of his leaving for abroad. Provisions of law are there to be interpreted and implemented effectively so that the Courts of law remain the authority to enforce it. The accused in the writ petition in hand had violated the law twice and two FIRs have been registered against, him and the trial has commenced. It would be in the fitness of the things that his trial be expedited by the learned Trial Court instead of letting him leave the country and then to sit and wait for his return at his will till the tenure of his job in abroad expires, if not further extended, in case the trial ends up in his conviction. The accused/petitioner deprived the learned Trial, Court of a proper opportunity of passing appropriate order on his application for grant of exemption from his personal appearance during the trial. He first moved the application and without waiting for the decision of the learned Trial Court proceeded abroad. This conduct of the petitioner by itself is sufficient to put the Court on some caution in respect of his entitlement to leave the country.

13.  It is not the entitlement of the petitioner seeking exemption from presence during trial which is as such controverted but the manner in which he conducts himself in making the prayer and then leaving abroad without grant of said permission by the Trial Court which has resulted into dismissal of his application. He was present before the trial Magistrate when he moved an application for exemption but left the country without any order having been passed by the Trial Court on his application; he did not take Court into confidence about his commitment of job abroad in proper manner. The Trial Court was thus left with no option but to dismiss his application under Section 540-A Cr.P.C. A revision petition dated 02-12-2008 has been instituted in the name of the petitioner showing him as petitioner against the order dated 10-11-2008 of the learned trial Magistrate but the same does not bear his signatures. It is evident that it was signed by somebody else because the signatures of the petitioner in his application dated 30-10-2008 "Annexure-C" are present in his own name whereas the signatures on the revision petition are absolutely different and have no correspondence with the name of the petitioner as well as with his signatures made on his application dated 30-10-2008 moved before the trial Magistrate "Annexure-C". There is nothing on the record to establish the criminal revision having been moved before the learned ASJ dated 02-12-2008 under some written authority duly sent by the petitioner from abroad. The revision could have been summarily dismissed by the learned ASJ on this ground as well.

14.  In view of the peculiar facts of the instant case and keeping in view the law laid down by the Apex Court, orders passed by the two Courts below do not call for any interference by this Court in exercise of writ jurisdiction particularly when the petitioner has also misused the concession of bail granted to him while he went abroad without seeking permission from the Court before whom he was facing trial as an accused, therefore, such accused is not entitled to any relief,

15.  With the above observations, both these writ petitions are dismissed in limine.

(M.S.A.)           Petitions dismissed in limine.


Can police raid without search warrants?

PLJ 2008 SC 414

[Appellate Jurisdiction]

Present: Muhammad Nawaz Abbasi; Muhammad Qaim Jan Khan & Muhammad Moosa K. Leghari, JJ.

ARSHAD MAHMOOD--Appellant

versus

STATE--Respondent

Crl. A. No. 313 of 2006, decided on 31.1.2008.

(On appeal from the judgment dated 11.5.2005 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi, in Cr. A. No. 482/2002).

Control of Narcotic Substances Act, 1997 (XXV of 1997)--

----Ss. 25, 20 & 21--Criminal Procedure Code, (V of 1898), Ss. 98 & 103--Constitution of Pakistan 1973, Art. 14--Raid without search warrants--Whether violative of Constitution--Held: The police or such other agencies do not enjoy unlimited powers to make search of the house of a person and disturb his privacy and dignity in violation of the Constitution--Member of concerned agencies, without satisfying the requirement of law cannot enter into residential premises without search warrant.    [Pp. 421 & 422] A

Control of Narcotic Substances Act, 1997 (XXV of 1997)--

----Ss. 9(c) & 25--Recovery of charas--Conviction and sentence--Appreciation of evidence--Association of Magistrate alongwith raiding party--Validity--Raiding party despite having prior information did not bother to obtain search warrant from a competent Court and conducted raid at the house of appellant without showing any justification--Though Magistrate was in association with the raiding party yet his presence was not sufficient to bypass mandatory provision of law and the Constitution--No evidence on record that house was in exclusive possession of accused--The bag containing charas was found lying in the courtyard of house and his wife/co-accused who had been arrested at the spot, was subsequently acquitted from the charge--Conviction & sentence set aside.

      [P. 422 & 423] B, C, D & E

Ch. Muhammad Akram, ASC for Appellant.

Mian Asif Mumtaz, D.P.G. for State.

Date of hearing: 31.1.2008.

Judgment

Muhammad Nawaz Abbasi, J.--This appeal by leave of the Court, has been filed against the judgment dated 11.05.2005, passed by a learned Division Bench of the Lahore High Court, Rawalpindi Bench, whereby a criminal appeal filed by the appellant against the conviction and sentence awarded to him under Section 9(c) of the Control of Narcotic Substances Act, 1997, by the learned trial Court vide judgment dated 24.07.2002, was dismissed.

2.  The prosecution case as narrated in the FIR is that on 16.7.2000 at about 9.40 a.m., Muhammad Iqbal, SI (PW-8), alongwith Manzoor Nasir Magistrate, Yasin Farooq, ASP, Arshad Ali, ASI, Abdur Razzaq, LHC and other Police Constables, while present at Chirah Chowk, Islamabad, having received spy information that Arshad Mahmood and his wife, Mst. Sabiha resident of Dhoke Kasota, were keeping charas in their possession raided at their house. Arshad Mahmood on arrival of police party ran away from the spot and was subsequently declared proclaimed offender whereas Mst. Sabiha his wife while present in the courtyard of the house was arrested. The raiding party also took into possession a black colour bag lying on the ground by the side of Mst. Sabiha which contained twenty one packets and each packet was found to have contained 1050 grams of charas. The raiding party having separated 100 grams of charas from each packet, prepared 21 sealed parcels to be sent to the chemical examiner for examination whereas the remaining charas was sealed into separate parcels as case property. The investigating officer having prepared a complaint at the spot, sent it to the police station on the basis of which a case was registered against the accused under Section 9(c) of the Control of Narcotic Substances Act, 1997, and challan was accordingly submitted against them to face the trial before the Special Court established under the ibid Act.

3.  The prosecution in support of the charge against the accused, examined 9 witnesses at the trial and accused in their statements under Section 342 Cr.P.C. denying the recovery of charas from their possession pleaded false implication. The learned trial Court on the conclusion of the trial, having formed the opinion that the appellant was guilty of the charge convicted and sentenced him to suffer imprisonment for life with a fine of Rs. 2,00,000/- and in default whereof to undergo SI for six months whereas Mst. Sabiha his co-accused was acquitted. On dismissal of appeal filed by the appellant in the High Court against the conviction and sentence awarded to him by the trial Court he has filed the present appeal before this Court.

4.  Leave in this appeal was granted vide order dated 09.05.2006, to consider the following questions:--

(i)   Whether the evidence which has come on record has been appreciated in accordance with settled norms of justice and the principles enunciated by this Court qua safe administration of justice in criminal cases?

(ii)  What would be the import and impact of the statement of Mr. Manzoor Hussain Nasir (Magistrate) who remained associated with the raid and whose statement was got recorded by the police with an inordinate delay of one and a half month?

(iii) Whether the evidence qua factum of recovery has been examined vigilantly as admittedly recovery was effected from Sobia Bibi the wife of petitioner who according to the prosecution made his escaped good on seeing the police party?

(iv)  Why no attempt could be made by the raiding party comprising of 250 personnel duly armed with sophisticated weapons to apprehend the petitioner and amazingly no hot pursuit was made when the petitioner was at a little distance ?

(v)   Why no search warrant to conduct the search of the house of petitioner could be obtained from llaqa Magistrate pursuant to secret information received by the police well in time ?

(vi)  Whether the grave contradictions floating in the statements of prosecution witnesses have been ignored without any rhyme and reason?

5.  Learned counsel for the appellant has contended that the learned trial Court as well as the learned Judges in the High Court have neither properly appreciated the evidence nor have given due consideration to the above question in addition to the following questions of law involved therein:--

(1)   The raid conducted at the house of the appellant on the basis of prior information without search warrant was without lawful authority.

(2)   In view of the prosecution case that the bag containing charas was recovered from the courtyard of the house of appellant in his absence, the possession of charas lying in the premises of his house could not be attributed to him to raise a legitimate presumption of his guilt.

6.  Learned counsel submitted that the evidence brought on record by the prosecution would have no nexus with the charge against the appellant.

7.  Mian Asif Mumtaz, learned Deputy Prosecutor General, on the other hand, contended that recovery of charas from the courtyard of the house of appellant was proved through cogent and convincing evidence, therefore, the learned trial Judge rightly having raised a presumption of guilt of the appellant convicted him which was further affirmed by the High Court after detail discussion and scrutiny of the evidence. The learned DPG has submitted that the concurrent finding of two Courts regarding guilt of appellant being not suffering from any legal or factual infirmity may not call for interference of this Court.

8.  In consequence to the raid conducted on the house of appellant on 16.7.2000, the. raiding party recovered a bag containing huge quantity of charas from the courtyard of the house. Mst. Sabiha wife of the appellant who was present at home at the relevant time was arrested whereas as per prosecution version appellant before arrival of raiding party slipped away from the spot. In view of the factual position narrated by the prosecution, the essential questions for determination would be (a) whether the raid at the residential house of a citizen in the normal circumstances without search warrant, is not violative of Article 14 of the Constitution which provides that privacy of the house subject to law and dignity of a person cannot be disturbed and in the light of the mandate of Constitution, whether a person including the members of law enforcement agencies is authorized to enter into the residential premises and disturb the privacy of others without the authority of law or permission of inmates, (b) whether entry into the dwelling house without the permission of law is not trespass or the law enforcement agencies enjoy unlimited power to enter into the residential houses of the people any time for the purpose of search without search warrants, (c) whether the presence of a magistrate with raiding party at the time of raid at the house of a person would dispense with the requirement of search warrants and magistrate is invariably authorized to have free access to enter into the residential premises and by his presence, there is no need of statutory requirement of search warrants under the law, the answer to the above question in the plain language of law and the mandate of Constitution is in the negative.

9.  The requirement of search warrants under Sections 98 and 103 Cr.P.C is mandatory which can be dispensed with only in exceptional circumstances mentioned thereunder. The above provisions are reproduced hereunder for better appreciation of the intent of law:--

98. Search of house suspected to contain stolen property, forged documents, etc. (1) If a Magistrate of the first class, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property,

      or for the deposit or sale of manufacture of forged documents, false seals or counterfeit stamps, [bank notes, currency notes or coins, or instruments or materials for counterfeiting coins stamps, bank notes or currency notes] or for forging;

      or that any forged documents, false seals or counterfeit stamps [bank notes, currency notes or coins or instruments or materials used for counterfeiting coins, stamps, bank notes or currency notes] or for forging, are kept or deposited in any place;

      or for the deposit, sale, manufacture or production of any obscene objection such as is referred to in Section 292 of the Pakistan Penal Code or that any such obscene objects are kept or deposited in any place;

      He may by his warrant authorize any police-officer above the rank of a constable:

(a)   to enter, with such assistance as may be required, such place, and

(b)   to search the same in manner specified in the warrant, and

(c)   to take possession of any property, documents, seals, stamps, [bank notes, currency notes] or coins therein found which he reasonably suspects to be stolen, unlawfully obtained, forged, false or counterfeit, and also of any such instruments and materials or of any such obscene as aforesaid, and

(d)   to convey such property, documents, seals, stamps, [bank notes, currency notes], coins, instruments, or materials or such obscene objections before a Magistrate, or to guard the same on the spot until the offender is taken before a Magistrate, or otherwise to dispose thereof in some place of safety, and

(e)   to take into custody and carry before a Magistrate every person founding such place who appears to have been privy to the deposit, sale of manufacture or keeping of any such property, documents seals, stamps, [bank notes, currency] notes coins, instruments or materials [or such obscene objects] knowing of having reasonable cause to suspect the said property to have been stolen or otherwise unlawfully obtained, or the said documents, seals, stamps, bank notes, currency notes, coins, instruments or materials, to have been forged, falsified or counterfeited, or the said instruments or materials to have been or to be intended to be used for counterfeiting coin or stamps, bank notes, or currency notes or for forging [or the said obscene objects to have been or to be intended to be sold, let to hire, distributed, publicly exhibited, circulated, imported or exported]

(2)       

          

          

          

          

          

          

103. Search to be made in presence of witness. (1) Before making a search under this Chapter, the officer of other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do.

(2) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other persons and singed by such witnesses; but no person witnessing a search under this Section shall be required to attend the Court as a witness of the search unless specially summoned by it.

(3) Occupant of place searched may attend. The occupant of the place searched, or some persons in his behalf, shall, in every instance be permitted to attend during the search, and a copy of the list prepared under this Section, signed by the said witness, shall be delivered to such occupant or persons at his request.

(4) When any person is searched under Section 102, sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person at his request.

(5)  Any person who, without reasonable cause, refuse or neglects to attend and witness a search under this Section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187 of the Pakistan Penal Code.

The exception created under Section 25 of CNS Act, 1997, in respect of Section 103 Cr.P.C. is as under:--

25.   Mode of making searches and arrest:--The provisions of the Code of Criminal Procedure, 1898, except those of Section 103, shall, mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of Sections 20, 21, 22 and 23 to all warrants issued and arrests and searches made under these sections.

Sections 20 to 21 of CNS Act, 1997, provide as under:--

20. Power to issue Warrants.--(1) A special Court may issue a warrant for the arrest of any person whom it has reason to believe to have committed an offence punishable under this Act, or for the search, whether by day or by night, of any building, place, premises or conveyance in which he has reason to believe any narcotic drug, psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed is kept or concealed.

      (2) The officer to whom a search warrant under sub-section (1) is addressed shall have all the powers of an officer acting under Section 22.

21. Power of entry, search, seizure and arrest without warrant.--(1) Where an officer, not below the rank of Sub-Inspector of Police equivalent authorized in this behalf by the Federal Government or the Provincial Government, who from his personal knowledge or from information given to him by any person is of opinion that any narcotic drug, psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed is kept or concealed in any building, place, premises or conveyance, and a warrant for arrest or search cannot be obtained against such person without affording him an opportunity for the concealment of evidence or facility for his escape, such officer may:--

(a)   enter into any such building, place, premises or conveyance;

(b)   break open door and remove any other obstacle to such entry in case of resistance;

(c)   seize such narcotic drugs, psychotropic substance and controlled substances and other materials used in the manufacture thereof and any other article which he has reason to believe to be liable to confiscation under this Act, and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act; and

(d)   detain, search and, if he thinks proper, arrest any person whom he has reason to believe to have committed an offence punishable under this Act.

(2)   Before or immediately after taking any action under section (1), the officer referred to in that sub-section shall record the grounds and basis of his information and proposed action and forthwith send a copy thereof to his immediate superior officer.

10.  The plain reading of the above provision would show that the police or such other agencies do not enjoy unlimited powers to make search  of  the  house  of  a  person  and disturb his privacy and dignity in violation of the mandate of the Constitution. The member of concerned agencies under the provision of Cr.P.C as well as under CNS Act, 1997, without satisfying the requirement of law cannot enter into the residential premises without search warrant.

11.  In the present case, the raiding party despite having prior information did not bother to obtain search warrant from a competent-Court and conducted the raid at the house of appellant without showing circumstance to justify such raid without a search warrant. Section 25 of CNS Act, 1997, provided that provision of Section 103 Cr.P.C are not as such applicable to the cases under the ibid Act but this provision does not exempt the requirement of search warrant and prior permission for entry into the residential premises for the purpose of search, the special provision relating to search and arrest under CNS Act, 1997, are not as such inconsistent to the provisions of Code of Criminal Procedure or are above the Constitution. The special provision of Section 25 or Sections 20 to 21 of CNS Act, 1997, do not as such permit violation of Constitutional guarantee of privacy and dignity of a man. The public functionaries are obliged to strictly follow the law and observe the privacy of the houses of the citizen failing which they can be proceeded against both for criminal trespass and also for damages in their individual capacity. The association of a magistrate with the raiding party in a raid at a residential house, may not dispense with the requirement of search warrant and his presence is not sufficient to bypass the mandatory provision of law and violate the constitutional mandate. The purpose of search warrant is to maintain the privacy of the house, therefore, a Magistrate is not as such authorized to enter into the premises without due process of law or permission of inmates and is also not supposed to exercise his authority of law in any manner, he likes and since act of raiding the house of appellant in the present case was in utter disregard to the law and was a sheer violation of the fundamental right of privacy as envisages in Article 14 of the Constitution of Islamic Republic of Pakistan, therefore, the association, of Magistrate in the raid was immaterial.

12.  The next question requiring examination would relate to the actual commission of offence. This is an admitted fact that appellant was not present at his house when the raid was conducted and no evidence was brought on record that house was in his exclusive possession and the bag of charas recovered from the Courtyard of his house in his absence would give rise to a legitimate presumption of his possession and guilt. The bag containing the charas was found lying in the courtyard of the house and Mst. Sabiha wife of appellant who was arrested while present in the courtyard was subsequently, acquitted from the charge, therefore, it is not understandable that in the given facts,  on  what  basis  and  evidence  the  appellant was held guilty of the charge under Section 9(c) of CNS Act, 1997. It may be observed that notwithstanding the special provision of Section 25 of CNS Act, 1997, the prosecution was under heavy burden to prove the possession of the appellant through direct evidence and mere on the basis of presumption without fulfilling the essential requirement of law and the command of Constitution, no one can be subjected to the rigours of penal law.

13.  The learned trial Judge as well as the learned Judges in the High Court in departure to the settled law of criminal administration of justice raised presumption of guilt of the appellant on the basis of hear say evidence and thereby committed gross error of law in awarding the conviction and sentence to the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997.

14.  In the light of foregoing reasons, we allow this appeal, set aside the concurrent judgment of conviction and sentence awarded to the appellant by the two Courts and direct his immediate release from jail if not required in any other case. Appeal allowed.

 (J.R.)     Appeal accepted.


Presence of prosecution witnesses is important in criminal case

PLJ 2009 FSC 41

[Appellate Jurisdiction]

Present: Haziqaul Khairi, CJ, Salahuddin Mirza & Syed Afzal Haider, JJ.

SAEED ULLAH and others--Appellants

versus

STATE and others--Respondents

J.Crl. Appeal No. 17/L of 2003, Crl. Appeal No. 128/L of 2002, Crl. Appeal No. 129/L of 2002 & Crl. Revision No. 29/L of 2002,

decided on 14.11.2008.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 174 r/w Police Rules, 1934, Rr. 25-35--Inquest report--Investigation--Important document--Held: Inquest report is a very important document in the chain of investigation--It is recorded immediately on receipt of information about the death of a person--It is of course correct that it is not incumbent upon police officer to give the names of the witnesses but this document being almost the earliest is the result of the investigation about the cause of death, manner in which death was caused and the weapon used in the Commission of the offence--This past of the investigation is usually occasioned by the information imparted by the aggrieved party.

      [P. 50] A

Pakistan Penal Code, 1860 (XLV of 1860)--

----Ss. 302(b) & 377--Conviction and sentence--Challenge to--Benefit of doubt--Unseen occurrence--Deadbody was not identified by complainant--Offence of Sodomy and murder--Complainant, father of victim, does not mention presence of PWs--Fact of their presence at spot was not reflected in inquest report--Non-mention of these witnesses in Crime Report as well as Inquest Report was not free from suspicion--Recovery of dead body from roof top of other house was not proved nor has it been established beyond reasonable doubt that appellant threw dead body there--There was improvement made by complainant who at a later stage, relying upon information given by PW, stated that son and wife of appellant helped him in depositing dead body on roof top of another house--Sack containing dead body was not identified in Court by complainant and, therefore, there was no evidence to show that there was a sack which was said to contain dead body and was found lying on roof top of a neighbour who was neither associated with investigation nor produced as a witness--Incident was admittedly an unseen occurrence and only evidence on record to connect appellant was deposition of PW who allegedly saw him carrying a sack alongwith two other persons--Presence of this PW at spot was doubtful--He was a chance witness and his statement did not inspire confidence--No evidence whatsoever that deceased was last seen with appellant--It was not even alleged by mother of deceased PW that appellant even called child upstairs--Co-accused, wife of appellant, has already been acquitted of charge of disappearance of evidence by trial Court extending her benefit of doubt on same set of evidence as is available against appellant--Proseuction must prove its case beyond all reasonable doubts--Held: Liberty and other rights cannot be jeopardized on account of conjectures or surmises or deposition of chance witnesses who give a twist to story--Appellant acquitted on the base of benefit of doubt--Appeal accepted. [Pp. 51 & 52] A, B, C, D, E, F & G

Mr. Said Ullah Khaid, Advocate for Appellant (in J. Cr. Appeal No. 17/L of 2003).

Mehdi Khan Chohan, Advocate for Appellants (in Cr. A. Nos. 128, 129 and Cr. Rev. 29/L of 2002).

Mr. Asjad Javed Ghural, DPG for State.

Date of hearing: 17.9.2008.

Judgment

Syed Afzal Haider, J.--Through this single Judgment, three appeals and one revision petition are being decided. These petitions are (i) Jail Criminal Appeal No. 17/L/2003 filed by Saeed Ullah against his conviction and sentence, (ii) Criminal Appeal No. 128/L/2002 filed by complainant Muhammad Inayat against acquittal of accused/Respondent No. 1 Mst. Feeza Bibi, (iii) Criminal Appeal No. 129/L/2002 filed by complainant Muhammad Inayat against acquittal of accused/Respondent No. 1 Shakil Abbas, a minor, tried under the Juvenile Justice System Ordinance, 2000 and (iv) Criminal Revision No. 29/L/2002 seeking enhancement of sentence of appellant Saeed Ullah from life imprisonment to death sentence. All these petitions are directed against the judgment dated 28.03.2002 delivered by learned Additional Sessions Judge, Gujrat.

2.  The appellant Saeed Ullah has been convicted under Section 302(b) of the Pakistan Penal Code and sentenced to imprisonment for life and also directed to pay cash Rs. 4,00,000/- as compensation under Section 544-A of the Code of Criminal Procedure to legal heirs of the deceased, in default whereof to further undergo 6 months' simple imprisonment. He has also been convicted under Section 377 of the Pakistan Penal Code and sentenced to imprisonment for life with a fine of Rs. 4,00,000/-, in default whereof to further undergo simple imprisonment for six months whereas co-accused Mst. Feeza Bibi and Shakil Abbas have been acquitted of the charges by extending them benefit of doubt.

PROSECUTION VERSION

3.  Brief facts of the prosecution story as culled from the crime Report No. 72/2001, dated 27.01.2001, registered under Sections 302/377/201 of the Pakistan Penal Code read with Section 12 of the Offence of Zina Ordinance, 1979 are that the complainant Muhammad Inayat, PW. 1 alleged that:--

"I am resident of Mohallah Sultanabad and the first floor has been rented out to Saeed Ullah accused who is residing there with his wife Mst. Feeza Bibi (co-accused). I am a shopkeeper having two sons and three daughters. On 27.01.2001 at about 7:10 p.m. when I arrived after closing the shop, my brother-in-law Muhammad Ijaz PW was present in his house where he was busy talking with his sister (wife of the complainant), I inquired about my six years' son Dilawar Hussain deceased from my wife. She informed that the son had gone upstairs. After having meal I again inquired and extended a call with no reply from upstairs. Then I went upstairs and observed that Saeed Ullah and his wife Mst. Feeza Bibi accused persons were washing the floor. On inquiry, they replied that my son Dilawar deceased had not come upstairs. I again inquired from my wife that the deceased had not gone upstairs when his wife Mst. Shahnaz Akhtar and brother-in-law Ijaz PWs also came upstairs. They confronted Saeed Ullah accused stating that the deceased had come upstairs in their sight on the signal of Shakil accused son of Saeed Ullah. Thereafter all the three persons started tracing out Dilawar Hussain deceased and enquired from the neighbourhood. It consumed sufficient time and for the same purpose went to the top storey as well. There on the roof of the house of Ahmad son of Sultan Mochi, resident, of the same vicinity they observed that a Nylon sack was lying on the gravel. The sack was checked and the person of his son Dilawar, whose clothes were wet, was found. He was removed from the sack and it was found that he had expired. In enquiry it was found that Saeed Ullah accused had committed sodomy upon the deceased for which reason the blood started oozing out of the body and in order to conceal the offence both the accused washed the floor. The accused bathed the dead body in the bath tub and concealed the same in a sack and then threw it on the third roof the house belonging to Ahmad Mochi".

4.  The learned trial Court on 24.11.2001 framed charge against accused Saeedullah Khan (appellant), Mst. Faeza Bibi, the acquitted accused and Shakil Abbas minor, acquitted accused for offences punishable under Sections 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, read with Sections 302(a), 377 and 201 of the Pakistan Penal Code. The accused pleaded not guilty and claimed trial.

PROSECUTION EVIDENCE

5.  To prove its case, the prosecution produced as many as 13 witnesses. Summery of their depositions is being detailed below:--

(a)   PW-1 Muhammad Inayat, complainant of the case, made almost the same statement as narrated in his complaint Ex.PA. During cross-examination, he denied the suggestion that due to dispute over rent of the house he in collaboration with other PWs falsely roped the accused persons Mst. Feeza Bibi and Shakeel Abbas in the case. He also denied the suggestion that the accused were innocent and he had falsely deposed. He denied the suggestion that in connivance with the local police he got the investigation of this case conducted in a dishonest manner. He also denied the suggestion that he had made a false improvement to strengthen this case.

(b)   PW-2 , Mst. Shahnaz Akhtar, wife of the complainant Muhammad Inayat, supported the complainant. During cross-examination, she stated that no witness was produced by them before the police who might have seen the sodomy being committed on the person of Dilawar deceased. She denied the suggestion that she had introduced herself as a false witness in this case being mother of the deceased.

(c)   PW-3 Constable Pervaiz Ahmad, posted at Police Station Lorri Adda, is a formal witness. He stated that on 27.01.2001, he escorted dead body of the deceased Dilawar Hussain for post-mortem examination to the mortuary of A.B.S Hospital, Gujrat. After post-mortem, the doctor handed over to him the post-mortem report and clothes of the deceased which he handed over to the Investigating Officer in presence of Ghulam Rasool and Hayat, both of them not produced at the trial. During cross-examination, he denied the suggestion that the crime sack P-4 was not handed over to him by the doctor and he in connivance with the Investigating Officer falsely mentioned sack P-4 in memo of recovery Ex.P-E. He also denied the suggestion that he was deposing falsely.

(d)   PW-4 Constable Muhammad Iqbal, Police Station Civil Lines, Gujrat is also a formal witness. He stated that on 01.02.2001, Muhammad Riaz Moharrir/Head Constable handed over to him one sealed packet and a sealed envelope for onward transmission to the office of Chemical Examiner, Lahore and one sealed packet and a sealed envelope for onward transmission to the office of Pathalogist, Lahore. On 02.04.2001, Muhammad Akhtar Moharrir handed over to him a parcel, said to contain blood stained clothes, for onward transmission to the office of Chemical Examiner which he delivered in the concerned offices on the same day intact.

(e)   PW-5 Amjad Hussain son of Muhammad Shafi stated that on 27.01.2001, he and Ghulam Rasool PW, not produced, went to collect rent from Muhammad Aslam for the house of Fayyaz. He claims to be sitting in the house of said Fayyaz where he heard some noise. The sound of foot steps was heard by him and thus came out to see what was all about. He saw the accused carrying a nylon sack, (on the roof top of another house), going towards the adjacent house. On his enquiry, they said that it contained nothing. When he came outside of the house he saw the complainant Inayat present in the street who informed him that his son was missing. They went to "the house of Inayat P.W. that he went upstairs but the inmates of upper portion do not agree. Inayat P.W. and Shahnaz and I also went upstairs. Both Inayat and Shahnaz were stressing the accused that Dilawar had come upstairs and now why do you not accept. I informed to Inayat and Shahnaz Bibi P.W. that the accused present in Court were carrying a sack and were proceeding towards the east. I accompanied the Inayat and Shahnaz Bibi PWs. We found a sack lying on the roof of Haji Sultan. The sack contained dead body of the deceased. On 27.01.2001, police reached on the spot/place of occurrence. The police took into possession one stair P-5, cap P-6, Prouly (piece of cloth) P-7 and Tab P-8 which were taken into possession by Police through memo Ex.P-C and in my presence I signed the same and also Ghulam Rasool PW affixed his thumb impression." During cross-examination, he denied the suggestion that he had perjured himself and deposed falsely on account of relationship with the complainant party.

(f)   PW-6 Akhtar Naqqash Draftsman stated that on 29.01.2001 he took rough notes and prepared site-plan. During cross-examination, he denied the suggestion that as no body instructed him about the place where the PWs were sitting on the ground floor so he had not mentioned their presence in the site-plan and that in order to strengthen the prosecution case he had drafted a wrong site-plan at the direction of the police.

(g)   PW-7 Dr. Muhammad Rafique of A.B.S Hospital, Gujrat stated that on 27.01.2001 at about 8:05 p.m, he conducted post-mortem examination on the dead body of Dilawar Hussain deceased aged about 6 years who was wearing dark blue pent, blue shirt, vest white, Jarsi milky coloured. The doctor found multiple lacerations on lumbo-sacral region on the back. Excess bleeding was present around the anus and perineum. Scalp and skull were intact. Brain was congested. He further stated that examination of perennial and anal area showed that sodomy was committed upon the deceased. During cross-examination, he stated that in post-mortem report Ex.PE, he had not opined about commission of sodomy of the deceased. He denied the suggestion that no sodomy was committed upon the deceased.

(h)   PW-8 Amir Bashir son of Muhammad Bashir stated that on 18.04.2001 while he was posted as Foot Constable in Police Post Lorri Adda, warrants of arrest of appellant Saeed Ullah were handed over to him by the Investigating Officer but inspite of his hectic efforts, the appellant was not traceable. Thereafter, he affixed proclamation of appellant Saeed Ullah at his house. During cross-examination, he stated that on the day when he affixed the proclamation, the house was locked outside.

(i)   PW-9 Gulzar Ahmad, Sub-Inspector, Police Station Civil Lines, Gujrat stated that on 27.01.2001 on receiving complaint Ex.PA, he registered the F.I.R Ex.PA/1 without any addition or omission.

(j)   PW-10 Mehdi Khan Assistant Sub-Inspector, Police Station Civil Lines, Gujrat stated that on 15.09.200, the appellant Saeed Ullah was arrested in District Jail Mardan where from he got him transferred to District Jail Gujrat. On 16.07.2001, he took the physical remand of appellant Saeed Ullah. He investigated the case and forwarded him to stand trial. He admitted the suggestion that the complainant conceded before him that Saeed Ullah "is not the accused, has not committed the sodomy, nor commit to murder". He admitted that as per his finding accused was neither guilty of committing sodomy nor of murder.

(k)   PW-11 Muhammad Arshad son of Muhammad Shafi identified the dead body of the deceased at the time of post-mortem examination.

(l)   PW-12 Mian Muhammad Javed Sub-Inspector stated that on 27.01.2001 while he was posted at Police Station Civil Lines, Gujrat, he, after receiving information, reached at the place of occurrence. Zeeshan Sub-Inspector/PW Incharge Police Post was already present there. Fard Bian of the complainant Ex.PA, for registration of the case, had already been sent to Police Station Civil Lines Gujrat. He further stated that he inspected the place of occurrence and confirmed the spot inspection already carried out by Zeeshan Iqbal Sub-Inspector. On 2.2.2001, he arrested Shakil Abbas accused from Factory area. On 04.02.2001, Akhtar Hussain Draftsman handed over to him site-plans Ex.P-D and Ex.P-D/1 which he took into possession. He recorded the statement of draftsman. On 06.02.2001, he submitted the incomplete challan against Mst. Feeza Bibi and Shakil Abbas accused after finding them guilty. On 26.04.2001, he obtained proclamation with regard to Saeed Ullah appellant and entrusted the same to Constable Amar Bashir PW and recorded his statement. During cross-examination, he admitted the suggestion that the proclamation of appellant Saeed Ullah Ex.P-L contained the address of District Mardan. He further stated that he did not record any of the statement of eye-witnesses in this regard and that there was no direct evidence of any eye-witnesses on the file regarding sodomy or commission of murder by Mst. Feeza Bibi and Shakil accused nor there was any evidence of extra judicial confession. We have noticed that the names of Ghulam Rasool and Amjad P.Ws were not mentioned in the inquest report.

(m)   PW-13 Javed Iqbal Sub-Inspector, Police Station Sodhra, District Gujranwala stated that Zeshan Iqbal Sub-Inspector/Investigating Officer of the case had been serving under him and he was familiar with and could recognize his handwriting and signatures. He recorded the statement of the complainant Ex.P-A on 27.01.2001 for registration of case. On 27.01.2001, he inspected the spot, recorded the statements of the complainant, Shahnaz Akhtar and Muhammad Amjad. On 28.01.2001, he recorded the statements of Arshad, Constable Pervaiz Ahmad, Ghulam Rasool, Muhammad Hayat and Ijaz PWs under Section 161 of the Code of Criminal Procedure. On 03.02.2001, Shakil Abbas were arrested by him and was sent to judicial lock up by Sub-Inspector Zeshan Iqbal.

COURT WITNESS

6.  There is also the deposition of one Court witness Constable Muhammad Iqbal, Police Station Civil Lines, Gujrat. He stated that he was entrusted with the summons of Zeshan Iqbal Sub-Inspector, Police Post, Larri Adda, Police Station Civil Lines, Gujrat. He proceeded to the residence of said Sub-Inspector and his mother informed him that the Sub-Inspector had proceeded to America four months ago.

DEFENCE EVIDENCE

7.  After conclusion of the prosecution evidence, statements of the accused Saeed Ullah and Mst. Feezan Bibi were recorded under Section 342 of the Code of Criminal Procedure on 18.03.2002. Both the accused, inter-alia, pleaded their innocence and asserted that they had been falsely implicated in the case. In reply to the questions "why this case against you and why the P.Ws deposed against you", accused Saeed Ullah stated:--

"I have been falsely involved in this case due to enmity. I am retired army Subedar and I have served in the army for 28 years and have cleaned and unchallenged record. I am innocent. I produce defence evidence before the police and the police verified. The police also declared me innocent. I had rented disputed house of the complainant and so he implicated me falsely. The PWs are closely related with the deceased and the complainant."

In reply to the questions "why this case against you and why the P.Ws deposed against you", accused Mst. Feeza Bibi stated:--

"Due to monetary dispute regarding the rent of house where I was living. The complainant got registered this case against us in order to fulfill the empty belly of prosecution. As a matter of fact by way of registration of this case wanted to get the rented house vacated from me and to receive money from us by way of blackmailing. I am innocent in this case. My son Shakil was also innocent and he has been roped in this case for blackmailing me. The PWs are closely related with the deceased and the complainant."

In reply to the questions "why this case against you and why the P.Ws deposed against you", accused Shakil Abbas stated:--

"I adopt the version taken by my co-accused Mst. Feeza Bibi. The PWs are closely related with the deceased and the complainant."

Neither did the accused opt to produce evidence in their defence nor did any of them elect to depose under Section 340(2) of the Code of Criminal Procedure.

CONCLUSIONS WITH REASONING

8.  We have given careful consideration to the facts and circumstances of this case. The record has also been perused with the assistance of learned counsel for the parties. We are inclined to accept the appeal. The reasons for recording acquittal are reproduced hereunder:--

(a)   The complainant, both in the crime report and in his deposition before the Court mentioned that Muhammad Ijaz brother of his wife was present in the house when he inquired about his minor son Dilawar Hussain who was stated to be upstairs with the tenants. Muhammad Ijaz is also reported to have accompanied complainant for search within and beyond the limits of the house and reportedly found the dead body in a sack on the roof top of one Ahmad son of Sultan Mochi. It is, however, strange that Muhammad Ijaz and Ahmad Mochi have not been produced in Court. PWs Ijaz Ahmed, Muhammad Hayat and Ghulam Rasool were given up as unnecessary on 13.03.2002 as per statement of Raja Nisar Ahmad, Assistant District Attorney.

(b)   Amjad Hussain PW-5 resident of Kot Putu, a village three and a half miles away from the place of occurrence, was introduced in the narration of the story only after the registration of First Information Report. He asserts that he informed the complainant that accused was seen carrying a sack but neither any such disclosure was made in the Crime Report nor was his presence, as a member of search party, mentioned in the complaint.

(c)   Inquest Report is a very important document in the chain of investigation. It is recorded immediately on receipt of information about the death of a person as mandated in Section 174 of the Code of Criminal Procedure read with Police Rules 25.35. It is of course correct that it is not incumbent upon police officer to give the names of the witnesses but this document being almost the earliest is the result of the investigation about the cause of death, manner in which death was caused and the weapon used in the commission of the offence. This part of the investigation is usually occasioned by information imparted by the aggrieved party. In the instant case the complainant, the father of the victim does not mention the presence of Amjad Hussain P.W.5 and Ghulam Rasool. The inquest report was duly signed by Muhammad Bashir and Akhtar Hussain as required by law. Had Amjad Hussain P.W.5 and Ghulam Rasool been present they would have signed the Inquest Report. The fact of their presence at the spot is not reflected in the inquest report. The non-mention of these witnesses in the Crime Report as well the Inquest Report is not free from suspicion. The statement of Amjad Hussain P.W.5 at the same time does not inspire confidence. His entry in the story at a later stage snacks of uncanny improvement by prosecution side. Fayyaz, the absentee landlord is brother of P.W.1 as disclosed by P.W.2 but how come that P.W.1 does not collect rent from his neighborhood on behalf of his brother.

(d)   The site-plan does not support the prosecution version and it is bereft of crucial details.

(e)   The recovery of dead body from the roof top of Ahmad Mochi is not proved nor has it been established beyond reasonable  doubt  that  the  appellant  threw the dead body there. In fact there is improvement made by the complainant who at a later stage, relying upon the information given by Inayat Hussain P.Ws and Ghulam Rasool since given up, stated that the son and wife of appellant helped him in depositing the dead body on the rooftop of Ahmad Mochi. Why was PW-5 present in the house of Muhammad Aslam tenant of Muhammad Fayyaz at 6.30/7.00 p.m. during chilly January?. His presence there is neither endorsed by Muhammad Aslam nor Ghulam Rasool. He neither holds power of attorney on behalf of Muhammad Fayyaz, the absentee landlord, nor even a Rukka from the wife of the latter authorizing him to collect rent is before us. No receipt of payment of rent is available on record. The witness in order to fit in as a witness mentions 6.30/7.00 p.m. as the time of his arrival in the house adjoining the place of occurrence and he then prolongs his stay so that he could become a potential witness because the incident is alleged to have occurred at 7.10 p.m. There is no earthly prospect for a person, sitting on a cup of tea in a room in a cold evening, to witness in detail the movement of three persons carrying a sack on the roof top of another house when there is no source of light either.

 (f)  PW-2 introduced a new dimension to the story when she stated that the dead body was taken to Pak Fan Industry after the police had taken hold of the dead body. The reason of this, as narrated by the mother of deceased P.W.2, was that the boy was taken to the Industry for being checked up where it transpired that the patient was dead. This aspect does not fit in with the story of the child being packed in a sack and thrown on roof top with wet clothes in cold evening. The police was not accompanying the boy/his family members when he was taken to the Pak Fan Industry for check up. If this part of the story, as narrated by the real mother is to be believed, then the very basis of crime report as regards the time, place and culprit is smashed. The child was brought back home after covering a distance of three miles and it was then, the mother states that the police arrived. In this state of affairs the very basis of the Inquest Report is demolished. Afterwards the complainant party reportedly accompanied the child to the hospital. Even this statement needs careful consideration. If the child was dead, as confirmed by Pak Fan doctor, then there was no need to take the child to A.B.S. Hospital.

(g)   The sack containing the dead body was not identified in Court by complainant and, therefore, there is no evidence to show that there was a sack which was said to contain the dead body and was found lying on the roof top of a neighbour who was neither associated with investigation nor produced as a witness.

(h)   There is no convincing evidence available on record to establish the time and the manner in which the victim died. The incident is admittedly an unseen occurrence and the only evidence on record to connect the appellant is the deposition of PW-5 who allegedly saw him carrying a sack alongwith two other persons. The presence of P.W.5 at the spot is doubtful. He is a chance witness. His statement does not inspire confidence. His presence at the spot is not established even in police file.

(i)   There is no evidence whatsoever that the deceased was last seen with the appellant. It is not even alleged by P.W.2, mother of the deceased, that appellant even called the child upstairs.

(j)   It is in the evidence of PW. 10 Mehdi Khan that the complainant conceded before him that Saeed Ullah "is not the accused, has not committed the sodomy nor commit to murder." The witness observed that according to his findings the appellant was neither guilty of sodomy nor of murder.

9.  The co-accused Mst. Feeza Bibi, wife of appellant has already been acquitted of the charge of disappearance of evidence as contemplated by Section 201 of the Penal Code, by the learned trial Court on the same set of evidence as is available against the appellant. The learned trial Court observed: "hence even a slightest doubt arising in her favour must be extended to her." The case of accused Shakil Abbas was separated as he was a juvenile. He has also been acquitted vide judgment delivered on 28.03.2002 because the only role attributed to him was that he called the deceased upstairs and there was no evidence that he acted in concert with his step father, the appellant in this case. He was also given benefit of doubt.

10.  In this view of the matter it is not possible to sustain the conviction recorded by learned trial Court. In order to fix liability the prosecution must prove its case beyond all reasonable doubt. It is all the more necessary when the offence alleged by prosecution entails capital punishment. The liberty and other rights cannot be jeopardized on account of conjectures or surmises or deposition of chance witnesses who give a twist to  the story.  Moreover  improvement  made by complainant on crucial points reflects adversely on the veracity of prosecution version. In this view of the matter the prosecution story, as alleged, is not free from doubts. Consequently, giving benefit of doubt to the appellant, his appeal, Jail Criminal Appeal No. 17-L of 2003 is hereby accepted and the judgment dated 28.03.2002, whereby he was convicted (a) under Section 302(b) of the Pakistan Penal Code and sentenced to life imprisonment apart from the penalty of compensation to the tune of Rs. 4,00,000/-, and also (b) under Section 377 of the Pakistan Penal Code and sentenced to imprisonment for life with a fine of Rs. 4,00,000/- are hereby set aside. Criminal Appeal No. 128-L of 2002 and Criminal Appeal No. 129-L of 2002, both appeals against the acquittal of Mst. Feeza Bibi and Shakil Abbas minor are hereby dismissed for the reasons which have become the basis of acceptance of Jail Criminal Appeal No. 17-L of 2003. Criminal Revision No. 29-L of 2002 seeking enhancement is consequently dismissed. Appellant Saeedullah son of Abdul Minan shall be set at liberty forthwith unless he is required in some other case.

(A.S.Sh.)   Appeal accepted.


Validity of Gift under the law

PLJ 2009 Karachi 222

Present: Zafar Ahmed Khan Sherwani, J.

Syed ABDULLAH ABIDI--Plaintiff

versus

Mst. HAJRA ABIDI and another--Defendants

Suit No. 1058 of 2005, decided on 3.3.2009.

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

----Ss. 123 & 129--Gift under statutory law and Islamic Law--Distinction stated--Requirement of a valid gift are somehow different as compared to statutory law as provided u/S. 123 of the Transfer of Property Act, 1882, under which execution of such document in presence of two attesting witnesses is mandatory besides its registration--However, S. 129 of the Act is an exception to the same--In Islamic Law, only such voluntary declaration in express terms with transfer of possession from the donor in favour of the donee and the acceptance by the donee are sufficient to fulfil all requirements of a valid gift hiba--However, the only exception to that rule is that the donor must not be suffering from any disease having immediate threat of death) which is called Marz-ul-Maut--In case the donor and the donee are in joint possession of property, if the purpose of the gift at the time of declaration shared between the donor and the donee, the donee is not required to vacate and may continue jointly in possession with the donee without entailing any adverse repercussions on the factum of the gift, for example when a gift is made by a husband to his wife, the husband can continue to receive accruing returns on the subject matter of the gift and the required element of delivery of possession would remain un-affected.

      [Pp. 226 & 227] A & C

Gift--

----There are three essentials of gift under Islamic Law: declaration of gift by the donor, (ii) express or implied acceptance of the donee, and (iii) the seisin or the delivery of possession of the gift property by the donor to the donee.  [P. 227] B

1972 SCMR 50 and 1998 SCMR 2114 fol.

Islamic Law--

----Gift of house by father in favour of son excluding two daughters--Burden of proof--Suit by brother for recovery of possession of house and mesne profits from sisters after death of father--Sisters' plea was that donor of 80 years age at relevant time was incapacitated due to tongue cancer and mentally retarded after he was operated; that as per family settlement, donor had agreed to gift house to them and two shops to plaintiff-brother, and that plaintiff being in possession of title documents got gift deed registered in his favour fraudulently and sold both shops--Plaintiff stated that donor, prior to operation on account of cancer, had first executed a will disclosing therein gift of suit house in his favour-- Validity--Execution of such will proved that donor must be having immediate danger of death on account of cancer disease, otherwise there was no reasons to execute same when he had gifted house in favour of plaintiff--Nothing was available on record to show that donor, after operation, had fully recovered while executing gift deed in favour of plaintiff--Plaintiff as sole son of donor was earning member of family--Gift in favour of plaintiff on account of his such advantageous position and infirmity of donor, could not be said to be out of free will--Plaintiff had failed to prove a valid gift in his favour--Plaintiff could not claim possession of suit house and mesne profits from defendant for being in legal occupation thereof as legal heirs of its deceased owner--Suit was dismissed.

      [Pp. 227 & 229] D, E & G

1972 SCMR 50; 1998 SCMR 2114; PLD 1964 SC 143 and

1981 CLC 962 ref.

Qanun-e-Shahadat Order, 1984 (10 of 1908)--

----Art. 117--Gift--Burden of proof--Onus to prove all ingredients of a valid gift would lie upon a person desirous to take benefit thereof.

      [P. 227] D

1972 SCMR 50 rel.

Gift--

----Islamic Law--Invocation of doctrine of Maraz-ul-Maut--Scope--For invoking such doctrine it is not necessary that death of donor must be result from disease.    [P. 228] F

PLD 1964 SC 143 fol.

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

----S. 8--Civil Procedure Code, (V of 1908), S.2(12)--Suit for recovery of possession and mesne profits--Failure of plaintiff to prove his exclusive ownership over suit house on basis of gift in his favour by his deceased father--Effect--Plaintiff could not claim possession and mesne profits from defendants being in occupation of suit house as legal heirs of its deceased owner--Suit was dismissed. [P. 230] H

Tort--

----Damages for mental shock, pressure, physical torture and social disgrace alleged to have been suffered by plaintiff on account of illegal acts of defendant--Failure of plaintiff to prove any particular act of defendant--Validity--Mere such allegations without any tangible evidence would be of no consequence--Plaintiff was, now entitled to such relief in circumstances.    [P. 230] I

Mr. Shafaat Hussain, Advocate for Plaintiff.

Nemo for Defendants.

Date of hearing: 4.2.2009.

Judgment

This is a suit for declaration, possession, perpetual injunction and mesne profits in respect of house Bearing No. A-530, Block H, North Nazimabad, Karachi measuring 225 square yards (the suit house). The Plaintiff has claimed that by virtue of gift-deed executed and registered as No. 1378 Book No. 1 dated 13-7-2002 before Sub-Registrar, T-Div-VII-B, Karachi, by his deceased father with delivery of its possession along with the original title documents and his acceptance, he became its owner and got the same mutated in the record and City District Government, Karachi vide order No. CDGK/KDA Wing Sch-2/572/2003 dated 13-8-2003 in his favour. He alleged that on account of the said gift the attitude of the defendants, his real sisters towards him and the father suddenly changed and started to make quarrel with them and made their lives miserable, therefore, they shifted from the suit house in October 2002 leaving the defendants in its possession. His father died on 24-7-2004 thereafter he served a legal notice dated 18-9-2004 upon them to vacate the suit house but to no avail, hence this suit for declaration that on account of gift he is exclusive owner of the suit house, for damages of Rs.500,000 for causing mental torture and physical disturbance and further sum @ Rs.5,000 per month form October, 2002 as mesne profit till realization of the possession and for perpetual injunction restraining the defendants not to create third party interest in the suit house and for costs of the suit.

The defendants in their joint written statement pleaded with regard to non-maintainability of the suit and alleged that the gift was fraud and void under the law as the donor, their ailing aged father, was incapacitated due to tongue cancer and was operated therefore, on that account he had become mentally retarded. It was also alleged that as per family settlement their father had agreed to gift his two shops situated in Rampura, Bombay Bazar and Ram Swami, Karachi to the plaintiff and the suit house to the defendants, therefore, all the documents were handed over to the plaintiff by their father but the plaintiff got the gift deed registered in his favour fraudulently and also sold both the shops. It was also alleged that the behaviour of the plaintiff towards their father was cruel as he used to keep him under pressure, coercion, which made him mentally retarded. They finally prayed for dismissal of the suit.

Out of the pleadings following issues were settled:--

(1)   Whether the suit of the plaintiff is maintainable under the law?

(2)   Whether, the plaintiff is lawful bona fide owner of the suit property by virtue of gift Deed Regd. No. 1378 dated 13-7-2002?

(3)   Whether, the plaintiff being owner is entitled for the possession of the suit property?

(4)   Whether, the plaintiff is entitled for the mesne profit @ Rs.5000 (Rupees Five Thousand only) per month from the defendants?

(5)   Whether, the plaintiff is entitled for the damages if so, to what extent?

(6)   Whether, the plaintiff is entitled to the relief claimed?

(7)   What, should the decree be?

In support of his case the plaintiff has examined himself by way of Affidavit-in-Evidence and produced all the relevant documents including the registered gift deed, mutation order in respect of the suit house, telephone and other utility bills in respect thereof. In his support he also examined one of the attesting witnesses of the gift deed namely Syed Nusrat Hussain Rizvi. Whereas both the defendants examined themselves through their Affidavit-in-Evidence before the Commissioner appointed for such purpose by this Court.

I have heard the learned Advocate for the plaintiff; none was present for the defendants.

It was contended by the learned Advocate for the plaintiff that the plaintiff has proved through tangible evidence that he was validly gifted the suit house by his father during his life time and therefore became owner thereof but the defendants forced both of them to leave the same by such behavior, consequently, they are in illegal occupation thereof, therefore, he is entitled for the decree as prayed by him.

I have carefully considered the above arguments of the learned counsel for the plaintiff in the light of the record.

Issue No. 1

Since none has appeared on behalf of the defendants during the course of the arguments therefore, the issue remained unattended on their behalf. Anyhow from face of the record there is nothing to maintain that the suit is not maintainable. Prima facie this suit is for declaration, injunction, possession and mesne profit and there appears no bar of any nature to entertain the same specially on the facts as mentioned above. The issue is decided in the affirmative.

Issues No. 2

The burden of proof of the issue was upon the plaintiff. It is his case that he has become absolute owner of the suit house by virtue of gift deed executed by his late father during his lifetime and registered on 13.7.2002. In his affidavit-in-evidence he has deposed that prior to the gift his father had executed a Will dated 23-5-2002 in his favour depriving the defendants from their shares after his death. The copy of the Will dated 10-5-2002 was also produced. He also deposed that thereafter he executed the gift deed in respect thereof in his favour and handed over its possession along with original documents to him and his name was mutated in the record of C.D.G.K. vide letter dated 13-8-2003. The registered gift-deed along with deed of acceptance of gift and possession were produced as Annexures P-3/1 to P-3/6. He has also deposed that at the time of the gift he and his father were residing in the suit house but after his marriage they both shifted to a rented house on account of misbehaviour of the defendants. One of the attesting witnesses of the gift-deed namely Syed Nusrat Hussain Rizvi fully supported the plaintiff in all respect in his cross-examination.

In rebuttal both the defendants in their evidence have denied the evidence produced by the plaintiff and reiterated the allegations as made in their written statements that the gift-deed is a fictitious document obtained by the plaintiff under coercion and that as per settlement their father had agreed to gift the two shops in favour of the plaintiff whereas the suit house in their favour and since the documents had been handed over to the plaintiff for preparation of the gift-deed but he got the gift-deed registered in his favour as their father was patient of tongue cancer and was operated and that he was mentally retarded. They also deposed that the plaintiff had shifted along with the deceased father in March, 2002 from the suit house to a rented house.

To determine whether the plaintiff has discharged the burden of proof of a valid gift in his favour by his deceased father, it is necessary to examine  the  ingredients of a valid gift under the Muslim Personal Law. The requirement of a valid gift are somehow different as compared to statutory law as provided under Section 123 of the Transfer of Property Act under which execution of such document in presence of two attesting witnesses is mandatory besides its registration. However, Section 129 of the said Act is an exception to the same. In Muslim law, only such voluntary declaration in express terms with transfer of possession from the donor in favour of the donee and the acceptance by the donee are sufficient to fulfil all requirements of a valid gift/hiba. However, the only exception to that is that the donor must not be suffering from any disease having immediate threat of death, which is called Marz-ul-Maut as held in Ashiq Hussain v. Ashiq Ali 1972 SCMR 50, that there are three essentials of the gift under Muhammadan Law (i) declaration of gift by the donor, and (ii) as express or implied acceptance of the donee, and (iii) the seisin or the delivery of possession of the gift property by the donor to the donee. With regard to the transfer of the possession in case the donor and the donee are in joint possession thereof it has been held in Ali Khan v. Mumtaz Begum and another 1998 SCMR 2114 that if the purpose of the gift at the time of declaration shared between the donor and the donee, the donee is not required to vacate and may continue jointly in possession with the donee without entailing any adverse repercussions on the factum of the gift, for example when a gift is made by a husband to his wife, the husband can continue to receive accruing returns on the subject-matter of the gift and the required element of delivery of possession would remain unaffected.

It is also to be observed that the burden of proof is always upon a person who is desirous to take a benefit of gift, hence he is to prove all the ingredients of valid gift as held by Hon'ble Supreme Court in the above, Ashiq Hussain (supra).

Now it is to be proved by the plaintiff that the donor was not suffering from any disease which comes within the definition of Maraz-ul-Maut. As admitted by the plaintiff in his affidavit-in-evidence that the donor was suffering from cancer and he was also operated in 2002 and he incurred all the expenditure on his treatment. Although he averred that in his evidence that his father was enjoying good-health at the time of marriage and he himself made arrangements of his marriage in the suit house but the fact that prior to the operation on account of cancer in May, 2002 his father had first executed a Will Exh.P-10 dated 10th May, 2002, in which he had disclosed that he had gifted the suit house in favour of the plaintiff proves the fact that he must be having immediate danger of death on account of cancer disease otherwise there was no reason to execute such Will when he had gifted the suit house in favour of the plaintiff. Similarly the plaintiff has not brought anything on record that after the operation his father had fully recovered when he executed another   declaration   of   gift.   The   photograph   Exh.P-6  showing  his presence in the marriage is of no consequence. It may be appreciated that it is no necessary at all that death should in fact result from disease if the doctrine of marz-ul-maut is to be invoked. In this regard the Hon'ble Supreme Court in the case of Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143 has made the following observations :--

"There is one point which may be clarified here. It is stated in some commentaries and judgments that death should in fact result from a disease if the doctrine of marz-ul-maut is to be invoked, I am unable to agree with this proposition. If a person was suffering from galloping tuberculosis and was therefore under apprehension of death when he made the gift, but he was shot dead by some person or died of an accident, or of cholera or some other epidemic a short time after the gift I do not see why the doctrine of marz-ul-maut should not be applicable. Truly speaking even the fact that a person survives and does not die at all should not validate a gift which he made under apprehension of death. The validity of the gift is to be determined with reference to the circumstances as they exist at the time of making the gift. Subsequent failure to die cannot have a retrospective effect, so as to validate an invalid transaction. The true reasons for the invalidity of the gift is the state of the mind of the donor who believes that he is going to die. As he believes that he is going to die he has no intention of making a transfer inter vivos and his only intention is to make a transfer which will take effect after his death. A transfer takes effect according to the intention of the transferor. If the transferor has no intention of making a gift-during his life time no such gift will result. The reasons why a gift in marz-ul-maut operates as a will is that the intention is to gift in marz-ul-maut operates as a Will is that the intention is to make a testamentary alienation only. This doctrine is not only confined to Muslim Law. In Roman Law it is called donation mortis causa and it also appears in Section 191 of our Succession Act. In accordance with Section 191 gift "made in contemplation of death" are resumable by the donor if he survives and the power to make such gifts is co-extensive with the power of testamentary disposition. It is true that gifts "in contemplation of death" are gifts which are to take effect in case the donor dies, but authority can be found in any commentary for the proposition that although the donor does not say so the presumption in the case of gifts made during apprehension of death is that they are to take effect only in case of death. In Jarman On Wills (1951 edition) at p.46 it is stated that "the conditional nature of the gift need not be expressed, it is implied in the absence of evidence to the contrary", and that "if the circumstances authorize the supposition that the gift was made in contemplation of death mortis causa is presumed."

It is also surprising to note that although the plaintiff and the donor had been shifted from the suit house in October, 2002 after the marriage of the plaintiff but neither the donor nor the plaintiff intimated the defendants through any correspondence with regard to the gift of the suit house in favour of the plaintiff either prior to execution of will or there after and to vacate the same. However, as soon as the donor died on 24-7-2004 as admitted by the plaintiff in his affidavit-in-evidence, he served a legal notice upon the defendants dated 18-9-2004. There appears no reasons as to why the plaintiff did not file this suit against the defendants during the period of about two years from his shifting from the suit house to the rented house and kept waiting the death of his father (donor). There is no explanation in this regard. This is an important factor because the valuable rights in respect of the suit house inherited by the defendants are involved. The plaintiff was required to act in bona fide and transparent manner, if he was actually gifted the suit house by his father bonafidely. Even otherwise, there appears no reasons as to why the father would deprive his two daughters from their valuable rights in the suit house specially in the circumstances when both of them were having no shelter and living in the suit house. Until and unless some tangible evidence is brought to prove that the gift fulfilled all the requirements of a valid gift it is not possible to hold it accordingly particularly in a situation when the donor had already gifted one of the shops in his favour and the defendants did not raise any objection to this effect.

If this gift was also genuine why they would raise objection. Admittedly the second shop of the deceased is also in his possession to which the defendants have also not raised any objection.

Next is the free will of the donor. Admittedly the donor was an old aged person of 80 years old at the time of gift and suffering from cancer whereas the plaintiff was the only son and earning member of the family in whose favour one shop had already been gifted by the same donor therefore, on account of such an advantageous position of the plaintiff and infirmity of the doner it cannot be said that the gift was out of free will. Reference can be made on Mst. Hussain Bibi and others v. Mst. Aisha Bibi 1981 CLC 962.

In view of the above discussion it is clear that the plaintiff has failed to prove that the gift of the suit house in his favour by his father was a valid gift therefore he is lawful owner in respect thereof, hence the issue is decided in negative.

Issues Nos. 3 and 4.

Since the plaintiff has failed to prove his exclusive ownership over the house in question in his favour and since the defendants being the legal heirs of its owner therefore they are in its legal occupation thereof and the plaintiff can neither claim possession nor mesne profits. The issues are therefore decided accordingly.

Issue No. 5.

The plaintiff has failed to bring any evidence on record except his words that an account of illegal acts of the defendants he has suffered mental shock, pressure, physical torture, social disgrace for which the defendants are liable to pay Rs.500,000, as damages. He has failed to refer any particular act of the defendants. Mere such allegations without any tangible evidence is of no consequence, therefore, the issue is decided in negative.

Issues Nos. 6 and 7.

In view of the above, the plaintiff is not entitled for any relief and therefore, suit is dismissed with no order as to costs in the circumstances of the case.

(R.A.)      Suit dismissed.


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