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Petitioner: MUHAMMAD RIAZ, DIRECTOR-GENERAL, PAKISTAN PUBLIC WORKS DEPARTMENT, GOVERNMENT OF PAKISTAN, ISLAMABAD VS Respondent: MURID AHMAD BALUCH, EXECUTIVE ENGINEER, PROJECT CIVIL DIVISION, PAK. P.W.D., SAHIWAL
Court Name: Supreme Court of Pakistan Judge(s): Mukhtar Ahmed Junejo, Abdul Hafeez Memon Title:MUHAMMAD RIAZ, DIRECTOR-GENERAL, PAKISTAN PUBLIC WORKS
DEPARTMENT, GOVERNMENT OF PAKISTAN, ISLAMABAD vs MURID AHMAD BALUCH, EXECUTIVE ENGINEER, PROJECT CIVIL DIVISION, PAK. P.W.D., SAHIWAL Case No.: Civil Petition No,158 of 1997 Date of Judgment:1997-03-31 Reported As: 1998 SCMR 303 Result: Petition dismissed Judgment ORDER ' ABDUL HAFEEZ MEMON, J.---This petition is directed against an order dated 28-2-1997 passed by learned Single Judge of the Lahore High Court, Rawalpindi Bench in Civil Miscellaneous No,688 of 1997 filed in Writ Petition No,351 of 1997. In this order passed at the preliminary stage, the learned Single Judge made inter alia the following observations:-- "Prima facie, the conduct of the respondent does not appear to be consistent with the service discipline. He will be put to notice that in case this writ petition is accepted he will have to bear the cost of the petition from his own pocket. Observations with regard to his delinquent conduct may also be made in the final judgment by this Court." ' The learned Single Judge further observed that respondent Murid Ahmad Baluch, who had taken charge of Central Civil Division No,III, Islamabad and was performing his function against that post, would not be disturbed. ' Petitioner Muhammad Riaz, who is Director General of Pak. P.W.D., Government of Pakistan, Islamabad, has appeared in person to argue this petition. The petitioner submitted that the only reason for his filing this petition was that he felt aggrieved by the observations made by the learned Single Judge, reproduced above, which are likely to prejudice him and, therefore, he would be satisfied and will not press this petition if a direction is given to the learned Court to decide the writ petition on its own merits without being influenced by the said observations made regarding the petitioner.
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' Mr. Bashir Ahmad Ansari, learned counsel for the respondent stated that he had no objection if such direction, as prayed by the petitioner, is given by this Court. In the circumstances, this petition is dismissed as withdrawn. We, however, direct that the learned High Court will not be influenced by the said observations made against the petitioner, while deciding the writ petition on merits. ' With these observations, leave to appeal is refused and the Petition is dismissed. 1998 SCMR 289 [Supreme Court of Pakistan] Present: Ajmal Mian, Abdul Hafeez Memon and Mukhtar Ahmad Junejo, JJ Mst. GHULAM FATIMA---Petitioner versus THE STATE and 5 others---Respondents Criminal Petitions Nos. 205-K of 1996 and 11-K of 1997, decided on 25th April, 1997. (On appeal from the judgment dated 8-11-1995, 23-2-1997 of the High Court of Sindh, Karachi in Crl. Misc. Application No, 10 of 1994). (a) Criminal Procedure Code (V of 1898)--- ----S. 491---Guardians and Wards Act (VIII of 1890), Ss. 12 & 25---Habeas corpus proceedings--- Pendency of the guardianship matter of minor before Family Court would not affect proceedings pending under 5.491, Cr.P.C. [p. 291] A Muhammad Javed Umrao v. Mst. Uzma Vahid 1988 SCMR 1891; Mst. Aisha Bibi v. Nazir and others 1981 SCMR 301; Mst. Zenia v. Ahmed Jawad Sarwar PLD 1994 Lah. 577; 1988 SCMR 1234; 1996 SCMR 2; PLD 1994 Lah. 151 and 1995 PCr.LJ 1868 ref. (b) Criminal Procedure Code (V of 1898)--- ----Ss. 87 & 88---Order of attachment---Re-calling of---Order of attachment of property was passed by Court without issuing proclamation under S. 87, Cr.P.C.---Proper compliance having not been made with provisions contained in Ss.87 and 88 of Cr.P.C., order of attachment was liable to be recalled---Recall of attachment order would not amount to review, but Court was competent to recall such order if ground existed for same. [p. 292] B Azizullah Shaikh, Senior Advocate Supreme Court and Akhlaq Ahmad Siddiqui, Advocate-on-Record for Petitioner (in Cr.P. No, 205-K of 1996). G.M. Qureshi, Advocate Supreme Court and M.A.I. Qarni, Advocateon-Record for Respondent No,2 (in Cr.P. No, 205-K of 1996). Munib Ahmad Khan, A.A.-G., Sindh for the State (in Cr.P. No, 205-K of 1996). G.M. Qureshi, Advocate Supreme Court and M.A.I. Qarni, Advocateon-Record for Petitioner (in Cr.!), No, 11-K of 1997). Azizullah Shaikh, Senior Advocate Supreme Court and Akhlaq Ahmad Siddiqui, Advocate-on- Record for Respondents (in Cr.P. No, 11-K of 1997). Date of hearing: 25th April, 1997. JUDGMENT ' MUKHTAR AHMAD JUNEJO, J.---Criminal Petition No,205-K/1996 has been filed by Mst. Ghulam Fatima for seeking leave to appeal against a judgment of the High Court of Sindh dated 8-11-1995 in Criminal Miscellaneous Application No,10 of 1994. Criminal Petition No, 11-K/1997 has been moved by Mst. Shazia Memon for seeking leave to appeal against a judgment dated 23-2-1997 in Cr1. Misc. Application No,10 of 1994 by the same High Court. Both these petitions have been heard together and are being disposed of under this judgment. 2. Admittedly Mst. Shazia was married with Naushad Ali on 7-7-1991 at Karachi. After marriage they lived together, but subsequently differences arose between them resulting in their separation. During the wedlock they were blessed with a son, namely, Asadullah, whose custody is bone of contention between the marriage spouses. 3. On 3-1-1994 Mst. Shazia filed in the High Court Criminal Miscellaneous Application No,10 of 1994 under section 491 of Cr.P.C. Praying that S.H.O. Cantonment Police Station Hyderabad be ordered to
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recover minor Asadullah from the custody of Naushad Ali. Muhammad Musharaf and Mrs. Ghulam Fatima respondents in Criminal Petition No,11-K/1997. Said respondents were alleged to have wrongfully confined said minor. On said application Rule Nisi was issued in respect of the minor from time to time for production of minor Asadullah in Court. Unfortunately, neither the minor was produced nor respondent Naushad Ali attended the Court on any date, despite issuance of coercive process. Ultimately, on 23-2-1997 a learned Single Judge of the High Court dismissed habeas corpus petition of Mst. Shazia on the grounds that the minor in question had not been recovered so far, that the matter was prolonged unnecessarily for want of service on Naushad Ali, that the counsel for Mst. Shazia was absent and that civil litigation before the Guardian Court for custody of the minor, was pending and hence the habeas corpus application was not competent. Hence Petition No, 11-K/1997. ' In Criminal Miscellaneous No,10/94 Mst. Ghulam Fatima, mother of Naushad Ali moved Criminal Miscellaneous No, 1346/1995 for recall of an order of attachment dated 27-9-1995. Under said order agricultural land bearing Survey Nos 140/1, 141/1 to 4 and parts of survey Nos.180/2 and 107/4 belonging to Naushad Ali but gifted by him to his mother, was attached. Said application of Mst. Ghulam Fatima bearing No,1346/95 was dismissed under a judgment dated 8-11-1995, announced on 2-10-1996. Hence Criminal Petition No,205-K/96. 4. Mr. Azizullah Shaikh, learned counsel for the petitioner in Petition No,205-K/96 argued that all the orders passed by the High Court were illegal. In particular he challenged the order of attachment dated 27-9-1995 on the ground that no action under section 88 of Cr.P.C. Can be taken unless the Court issued a proclamation under section 87 of Cr.P.C. For any person absconding. Learned counsel stated at the Bar that respondent Naushad Ali was outside the country and that the property transferred by him to Mst. Ghulam Fatima on 2-2-1994 could not have been attached. ' Mr. G.M. Qureshi, learned counsel for Mst. Shazia argued that the so-called gift dated 2-2-1994 was meant to defeat the process of the Court and that the property was shown transferred after institution of the present proceedings. ' Mr. Munib Ahmad Khan, learned Additional Advocate General Sindh proposed remand of the matter to the high Court for reconsideration of the issues involved. 5. Challenging dismissal of the application under section 491 of Cr.P.C. By the High Court, Mr. G.M. Qureshi, learned counsel for Mst. Shazia argued that pendency of the guardianship matter does not mean that the proceedings under section 491 of Cr.P.C. Should come to a close. Mr. Azizullah Shaikh, learned counsel for respondents 2 and 3 opposed interference with the dismissal of the application under section 491 of Cr.P.C. At the outset it may be mentioned here that pendency of the guardianship matter before a Family Court would not affect the proceedings pending under section 491 of Cr.P.C. Such question arose in the case of Muhammad Javed Umrao v. Mst. Uzma Vahid (1988 SCMR 1891) where a learned Bench of this Court observed as below:- "It is true that facts of individual cases may be such where the cover of proceedings of one sort is taken for advancing the cause of other. In such cases it has to be ascertained, as to, what is the substance of the proceedings and thereafter the proceedings are to be diverted to the appropriate channel be it of section 491 Code of Criminal Procedure or one under Guardians and Wards Act." ' In said case the mother of children approached Family Court for custody of her minor children, but when she suspected that the minors were being shifted outside the jurisdiction of the Court, she moved the High Court under section 491 of Cr.P.C. There is another view expressed in the case of Mst. Aisha Bibi v. Nazir and others (1981 SCMR 301), where it was observed that where the dispute between the parties is essentially regarding custody of the girl and no question of any forcible detention was raised, such was essentially a matter for Guardian Judge to resolve and no justification is made out in such a case for issuing a direction in the nature of writ of habeas
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corpus. In the case of Mst. Zenia v. Ahmed Jawad Sarwar (PLD 1994 Lah. 577) a learned Single Judge took view that the provisions of section 491 of Cr.P.C. Are more appropriate, efficacious and speedy. In the case of Muhammad Javed Umrao (1988 SCMR 1891) a learned Bench of this Court held that the two matters, one dealt with under section 491 of Cr.P.C. And the other under Guardians and Wards Act were entirely different and there is no question of the one excluding the other, the one overlapping the other or the one destroying the other. In light of the case-law, the High Court was not right in dismissing the Criminal Miscellaneous Application No,10 of 1994. 6. There is force in the contention of Mr. Azizullah Shaikh that proper compliance has not been made with the provisions contained in sections 87 and 88 of Cr.P.C. Recall of an attachment order does not amount to review and the learned Judge in Chamber was competent to recall the attachment, if grounds existed for such recall. ' Needless to add, that main anxiety of a Court in such matters is to put the minor in custody of the person who is entitled to such custody, keeping in view the Muslim Law on the subject and welfare of the minor. No doubt, ultimately the order of the Family Court would hold the field irrespective of the fact what order has been passed under section 491 of Cr.P.C. As held in the cases of Khushi Muhammad (1988 SCMR 1234), Ahmad Sami (1996 SCMR 2), Miss Hina Mani (PLD 1994 Lah. 151) and Shafqatullah (1995 PCr.LJ 1868). In any case, there is no illegality in dealing with the question of custody of a minor under section 491 of Cr.P.C. If such minor is in illegal or unlawful custody. 7. As a result of above discussion, we convert these petitions into appeals, accept the same and set aside the impugned judgments dated 23-2-1997 and 8-11-1995 and remand the matter to the High Court for fresh disposal of the same according to law. The attachment of the land shall continue till such order is recalled by the High Court for just reasons. Order accordingly. 1998 SCMR 292 [Supreme Court of Pakistan] Present: Ajmal Mian, Munawar Ahmad Mirza and Khalil-ur-Rehman Khan, JJ JAVED AKHTAR and another---Petitioners versus SHER MUHAMMAD and others---Respondents Civil Petitions Nos.112 and 113-K of 1996, decided on 28th May, 1997. (On appeal from the judgment of High Court of Sindh, Karachi, dated 25-1-1996, passed in Civil Petitions Nos.S-26 and S-27 of 1992). Civil Procedure Code (V of 1908)--- S. 12(2)---Limitation Act (DC of 1908), S. 3 & Art. 181---Constitution of Pakistan (1973), Art. 185(3)---Ex parte decree in favour of respondent---Validity of such decree was challenged by petitioner's predecessor but same was rejected on 7th December, 1983---Petitioners, after remaining silent for 7 years, challenged said ex parte decree dated 23-12-1979 on 19th July, 1990---Petitioners' application in terms of S.12(2), C.P.C. Was rejected by Trial Court as also by First Appellate Court and the High Court---Validity---Where forum awarding decree or passing any order had jurisdiction, then party aggrieved must challenge the same before higher forum in same hierarchy within prescribed period of limitation at least from date of knowledge---Petitioners claimed that Art. 181, Limitation Act, 1908, was applicable and they could challenge the same within three years from knowledge---Perusal of Art. 181, Limitation Act, 1908, would show that period would be computed from date when cause of action accrued---Even if liberality was shown to petitioners' right to challenge ex parte decree accrued to them on 10th January, 1983, when they became aware of the same---Having challenged such decree in 1990, application under S. 12(2), C.P.C. Was glaringly barred by time---No infirmity appearing in concurrent finding of fact by High Court, no interference was warranted---Leave to, appeal was refused in circumstances. [p. 296] A M.
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Jameel, Barrister-at-Law, Advocate Supreme Court with Muzaffar Ali Khan, Barrister-at-Law, Advocate Supreme Court and Advocate-on-Record for Petitioners. Nemo for Respondents. Date of hearing: 28th May, 1997. JUDGMENT ' MUNAWAR AHMAD MIRZA, J.---These petitions for leave to appeal are directed against the judgment dated 25-1-1996 passed by High Court of Sindh Karachi. Points requiring determination in these matters are identical, defence same are being decided through common judgment. 2. Relevant facts giving rise to present petitions, are that property bearing No,SR-8/18, Hassan Ali Effendi Road, Karachi, was allotted to late Maulana Abdul Qudus Bihari (father of petitioners) by Deputy Rehabilitation and settlement Commissioner, Karachi, vide his Order No,Reh./8183/ARC dated 5-3-1952. There were also other claimants, who were following allotment and transfer of said property in their favour, on the basis of physical possession. Record reveals that there was protracted litigation between the parties, and ultimately on the basis of order dated 8-6-1974 passed by Additional Rehabilitation and Settlement Commissioner (Lands), Karachi. ' Transfer Order', pertaining to subject matter of dispute was issued in favour of late Maulana Abdul Qudus Bihari (predecessor-in-interest of petitioners); on 20th August, 1975. 3. It may be seen that on 16-5-1979 respondent Sher Muhammad filed a suit for cancellation of Transfer Order' dated 20-8-1975 issued in favour of late Maulana Abdul Qudus Bihari and declaration of being its owner, besides permanent injunctions restraining from implementing or giving effect to said transfer order. It appears that notices were served upon Maulana Abdul Qudus Bihari (father-predecessor-in-interest of petitioners) who remained absent. Eventually ex parte proceedings were drawn against him on 16-9-1979. Subsequently learned Senior Civil Judge vide judgment dated 23-12-1979 granted ex parte decree in favour of the respondent, Sher Muhammad, in following terms:-- "The defendants are called absent though served therefore on 16-12-1979, it was decided to proceed ex parte against them. ' Since the plaint is on oath therefore contents of plaint are admitted as correct. The suit of plaintiff is decreed and it is declared that order of defendants Nos.2 and 3 in favour of defendant No,4 about the transfer of suit property is void therefore cancelled. Further prayer of Mandatory Injunction, that the defendants Nos.2 and 3 be directed to transfer the said property to plaintiff is rejected since it is not warranted by any law. ' In the circumstances the parties are left to bear their own cost. ' Given under my hand and seal of the Court this 23rd day of December, 1979. Announced in open Court. 23-12-1979 (Sd.) (Rajal Das G. Basantani) II Senior Civil Judge/A.S.J. Karachi." 4. It is the case of petitioners that during January, 1983, late Maulana Abdul Qudus Bihari (predecessor-in-title of petitioners) came to know about ex parte decree dated 23-12-1979, which according to him was procured by respondent Sher Muhammad through misrepresentation and exercising fraud. Therefore, after obtaining necessary documents towards 21st May, 1983, of respondents submitted an application praying for setting aside ex pane decree, under Order IX rule 13 before trial Court, which was, however, rejected on 7th December, 1983. 5. It is undisputed fact that petitioners remained silent for almost seven years, and towards 19th July, 1990 submitted an application under section 12(2) C.P.C. Challenging validity of ex parte decree dated 23-12-1979 on the ground of having been obtained through fraud, misrepresentation and presentment of false claim. Some of the documents were also placed on the record of case
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file. Ultimately after hearing parties, learned Senior Civil Judge-IV, Karachi South, dismissed said application by means of judgment dated 11-12-1990. The petitioners feeling dissatisfied had preferred Civil Revision Application No,17 of 1991 before Additional District Judge-HI, Karachi (S), which was also rejected on 2nd December, 1991. 6. It may be seen that petitioner, late Maulana Abdul Qudus Bihari started causing some obstruction and interference in the possession of respondent Sher Muhammad therefore, on 7-1- 1987 he instituted Civil Suit No,41 of 1987 before Civil Judge XII, Karachi South, seeking declaration regarding his legal right and entitlement to carry business in suit premises uninterruptedly. It appears that late father of the petitioners despite service of notice did not participate in the proceedings and failed to file written statement in said case. Consequently ex parte decree was granted in favour of respondent Sher Muhammad by Civil Judge XII, Karachi (S) vide judgment dated 13th July, 1987. Petitioners had separately challenged above referred ex parte decree passed against them in Civil Suit No,41 of 1987. Additional District Judge, Karachi (S) by way of Revision Petition No,18 of 1991, which was dismissed on 2-12-1991, maintaining the decision of the trial Court dated 13th April, 1987 and 12th December, 1987. 7. Record discloses that decisions emanating from objection petitions of the petitioners filed under section 12(2) C.P.C. And judgment passed in Civil Revision No,17 of 1991 (supra) has been challenged through Civil Petition for Leave to Appeal No,112-K of 1996; whereas ex parte decree dated 13th April, 1987 passed in Civil Suit No,41 of 1987 and the order of Additional District Judge (S)-cum-Revisional Court passed in Civil Revision No,18 of 1991 has been assailed in Civil Petition for Leave to Appeal No,113-K of 1996. 8. Barrister M. Jameel, Advocate Supreme Court, strenuously urged that Transfer Order issued in favour of late Maulana Abdul Qudus Bihari (father of petitioners) was valid and had been lawfully issued, therefore, ex parte decree dated 23-12-1979 having been fraudulently obtained by respondent Sher Muhammad was devoid of lawful authority and of no legal effect. He stressed hard, that in such eventuality question of limitation had neither relevancy nor significance, therefore, both the Courts below, misconstrued legal position and misappreciated factual aspects by failing to set aside abovereferred void decree. 9. We have carefully perused the record and considered arguments advanced by the learned counsel for petitioners. It is quite apparent that petitioners were fully aware of the ex parte decree granted in favour of respondent' on 23-12-1979. Admittedly application for setting aside ex parte decree was also filed towards 21-5-1983 which after contest by respondent was dismissed by the trial Court on 7-12-1983. It is crystal clear that petitioners went into deep slumber of almost (seven) 7 years, and while waking up did not furnish any explanation why order dated 7th December 1983 rejecting said application was not effectively challenged before higher forum. Learned counsel mainly attempted to argue that ex parte decree being void should be ignored despite lapse of considerable period. Obviously such construction would lead to serious confusion. It is well-settled that if forum awarding decree or passing any order has jurisdiction, then party aggrieved must challenge it before higher forum in the same hierarchy within prescribed period of limitation atleast from the date of knowledge. An attempt has been made to show that petitioners could challenge the decree within three years from knowledge as contemplated under Article 181 of Limitation Act. Bare perusal of Article 181 of Limitation Act discloses that period has to be computed from date when cause of action accrued. Obviously even if latitude is granted to petitioners, the right to challenge ex parte decree accrued on 10th January 1983 when he became aware A about the same, and at least when application for setting aside of order was submitted on 21-5-1983. Therefore, no justification exists for challenging the validity of said decree after expiry of three years from year 1983. Petitioner under section 12(2) C.P.C. Which was filed by petitioners towards 11-12- 1990 was obviously incompetent and glaringly barred by time. Forums below have elaborately
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discussed legal and factual aspects. On careful reappraisal of relevant record and relevant law, we do not find any legal defect or infirmity in the impugned judgment. Additionally, there is concurrent finding of facts based on sound and cogent reasons which on this score is also not liable to interference. 10. For the above reasons, the petitions have not substance, accordingly leave is refused. Leave refused. 1998 SCMR 296 [Supreme Court of Pakistan] Present: Irshad Hasan Khan, Munawar Ahmad Mirza and Khalil-ur-Rehman Khan, JJ MUHAMMAD MUJEEBULLAH SIDDIQUI and others---Petitioners versus FEDERAL SERVICE TRIBUNAL, ISLAMABAD and 3 others---Respondents Civil Petitions for Leave to Appeal Nos.228-K, 246 to 283-K, 285-K to 298-K, 304-K and 306-K to 308-K of 1997, decided on 6th November, 1997. (On appals from the judgment of the Federal Service Tribunal dated 26-5-1997 passed in Appeals Nos.174, 165, 236, 239, 192, 211, 229, 182, 197, 199, 200, 177, 176, 175, 166, 206, 186, 216, 210, 205, 218, 221, 223, 187, 230, 188, 185, 227, 237, 222, 219, 194, 232, 198, 220, 225, 207, 191, 240, 189, 202, 203, 193, 208, 179, 213, 238, 212, 226, 181, 183, 184, 204, 164, 178, 167 and 215 of 1993 respectively). (a)Constitution of Pakistan (1973)--- ----Arts. 4, 25 & 212(3)---Secretariat Allowance---Entitlement---Service Tribunal had directed Government to consider petitioners' entitlement for Secretariat Allowance and had not given direction for grant of said Allowance to petitioners---Service Tribunal's reference of petitioners' case to Government did not have force of decision---Petitioners were unable to point out that in operative part of judgment, benefit of Secretariat Allowance was conceded by Service Tribunal--- Implementation of judgment/order of Service Tribunal, thus, did not arise. [p. 301] A (b) Constitution of Pakistan (1973)- --Arts. 4, 25 & 212(3)---Secretariat Allowance---Entitlement---Such allowance was made admissible to only employees of Federal Government who were serving in Federal Secretariat and attached Departments---Payment of Secretariat Allowance to new incumbents was discontinued with effect from 11-12-1989 but those who were already receiving the same were allowed to retain the same as personal pay---Petitioners voiced their grievance for grant of such allowance for the first time in 1993, when scheme for grant of same already stood abolished with effect from 18-12- 1989---Claim of petitioners, thus, was hit by the doctrine of past and closed trnasaction---Revised Pay Scales were notified with effect from 1-6-1994 and Secretariat Allowance was merged in the revised scales---Petitioners having opted for new scales were not entitled to Secretariat Allowance---Leave to appeal was refused in circumstances. [pp. 301,303] B & C Mubarak Ali Khan v. Government of the Punjab 1990 CLC 136; Government of Punjab v. Mubarak Ali Khan PLD 1993 SC 375; Amir Sultan and 23 others v. Government of Pakistan through Secretary,…
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