CASES

1.1982 PCrLJ49

Post Arrest Bail in Murder Case

Versions given by parties in cross cases as well as other material on record silent regarding their own part in incident resulting in death of one person. Both parties condemning each other to have aggressed upon it and evidence as to how whole affair started and which side responsible for starting aggression yet to be adduced at trial Held: A fit case for further enquiry as envisaged by S. 497 (2), Cr. P. C. Bail allowed, in circumstances.

2.1982 PCrLJ 58

Private defense

No cogent evidence to indicate that mother of accused was being beaten by deceased when accused arrived and stabbed him nor plea of self-defense finding corroboration from prosecution evidence –Accused also suffering no injury at all during occurrence negating accused’s apprehension of death or any grievous injury at hand of deceased Plea of self-defense held, would not prevail in circumstances.

3.PLD 1983 Pesh 81

Grievous Hurt

Injuries of complainant more serious than those on accused, but nothing on record to show as to who com¬menced aggression —Benefit of doubt regarding their presence at time of occurrence extended to two of accused on same evidence Held, remain¬ing accused also entitled to acquittal on benefit of doubt.

4.PLD 1992 Peshawar 71
Essentials of 249-A
That the Court after hearing the prosecutor and the accused, if considers that the charge is groundless or there is no probability of the accused being convicted of any offence, may acquit the accused. Trial Court had acted in haste in acquitting the accused u/s 249 A, Cr.P.C: at the very initial stage without affording the complainant any opportunity to prove her allegations against accused Order of acquittal was consequently set aside

5.PLD 1993 Peshawar 138
Reliance on Expert Report in Murder Case
Where the pistol and the empty had remained in police custody for sufficiently long time the report of the Fire arms Expert would not be of much evidentiary value and could not be relied upon as the possibility of the substitution of the empty could not be ruled out.

6.1994 CLC 1698
Co-sharer Entitlement
Entitlement of co sharer to construct on joint property
Co sharer could not, ordinarily be permitted to alter the nature of joint property

7.1994 CLC 2409
Entitlement of co sharer to construct on joint property
Co sharer could not, ordinarily be permitted to alter the nature of joint property, and to put it to different use from the one for which it was intended—-Even if defendant/co sharer had been in possession of land in question, still he could not raise construction thereon, without consulting other co sharer or partition of land

8.P L D 1994 Peshawar 204
Unregistered Document Reliance
Unregistered document could be received in evidence for collateral purposes Execution of document if proved, whether registered or not, would not have material bearing on the merits of the case Such document could be admitted in evidence and also be relied upon to prove any collateral purpose i.e. factum of possession.

9.1995 CLC 403
Requirements for Adverse possession
For maturing title through adverse possession it is sine qua non that person making assertion of adverse possession must establish disclaimer of the title which must be notorious and explicit.

10.1996 CLC 857
Validity of Gift
Gift in question was made by father in favor of his three sons excluding the fourth one Son who had been excluded from gift assailing gift on basis of fraud and undue influence Suit was dismissed and gift was deemed to be valid

11.1996 MLD 362
Occupancy Tenancy
Plaintiffs claim to be full owners on basis of being occupancy tenants of land in question. Plaintiffs admittedly were not recorded occupancy tenants of land in question, in revenue papers at the commencement of North-West Frontier Province Tenancy Act, 1950, therefore, legally they could not be deemed to have become full owners of land in question, by operation of law in terms of Ss.4 & 4-A of the Act

12.1997 CLC 423
Reliance on Wajib-ul-Arz
¬Presumption of correctness was attached to such entries in Wajib-ul-Arz as the same reflected unanimous will of the community.

13.1999 P Cr. L J 1677
Post Arrest Bail of Co-Accused
Occurrence was supported by injured victim, witnesses as well as medical report which had shown that female victim was injured at the skull with sharp edged weapon by accused Accused, in circumstances, could not be shown leniency towards bail Since blow of co accused had not landed do vital part of body of victim, he was entitled to concession of bail.

14.1999 P Cr. L J 1700
Rejection of Bail regardless of offence not falling within Prohibitory clause
Offences though did not fall in prohibitory clause of S.497, Cr.P.C., but since accused armed with deadly weapon had entered house of complainant when a woman having no protection of male in house was present, Court could award imprisonment, as well which fell within prohibitory clause of S.497, Cr.P.C. Bail was declined to accused in circumstances.

15.2000 CLC 399
Gift by Illiterate Pardanasheen Lady
¬Where gift deed was not read ever and explained to such lady, execution of such deed would not be said to have been consciously executed

16.2000 C L C 1955
Court favors adjudication on merit rather than deciding on technicities
Striking off defense of defendants under O17 R3 upon non-filing of written statement

17.2000 MLD 1855
Easement right explained
Alternate path available to the petitioners—-¬Where joint properties of the petitioners touched the main road, they themselves could make arrangements of their approach from the main road No flaw in the concurrent findings of both the Courts below had been found to make a case for interference in revisional jurisdiction.

18.2001 CLC 1983
Custody of Minors
Claim for custody of minor sons by father Father filed suit against mother for obtaining custody of his minor sons after divorcing her Minors were residing with mother and studying in an educational institution of high repute Petitioner had contracted second marriage and was living happily with second wife ¬Effect If the mother of the minor sons had contracted second marriage, petitioner would be at liberty to approach the Court for appropriate relief.

19.2001 P Cr. L J 1401
Narcotics—Recovery of Opium—-9(c)
Opium recovered from the accused was not produced in the Trial Court Burden was on the prosecution to positively establish on the destruction, of the case property which was not discharged by the testimony of two prosecution witnesses—¬No evidence was led by the prosecution to prove the same – ¬Accused was acquitted in circumstances.

20.2001 P Cr. L J 1461
Essentials for Grant and Cancellation of Bail
Consideration for. the grant of bail and for cancellation of bail was absolutely different Once an accused had been released on bail, his liberty could not be interfered with lightly. No extraordinary circumstances had been pointed out which could constitute an impediment in the way of granting bail to the accused Order of Court below granting bail to the accused being flawless, could not be interfered with.

21.2001 P Cr. L J 1587
Revision against Acquittal of Accused
Delay of one day in lodging the F.I.R. had remained unexplained Confessional statement allegedly made by accused was not recorded in accordance with law and essential formalities before recording the same were not duly observed Cogent and convincing reasons had been given by the Trial Court for acquitting the accused Revision petition against acquittal of accused was dismissed in circumstances.

22.2001 P Cr. L J 1595
Appeal against acquittal
F.I.R. was delayed by thirteen days and the same did not contain any reference to the Jirga having been convened in the case or any undertaking of the accused to pay the amount Matter between the parties appeared to be of civil nature and certain documents admittedly were not available on the file of the Trial Court Finding of acquittal was based on correct appreciation of evidence by lower Court Appeal against acquittal of accused was dismissed in circumstances.

23.2002 CLC 582
Right of easement
¬Plaintiff claimed right of easement on the ground that the defendants had no right to block the water channel which was passing through the land owned by the defendants, as the orchard of the plaintiff was being irrigated by the water channel Validity Where the plaintiff had alternate access to his orchard and he could use the same at his leisure, the right of easement had rightly been declined to the plaintiff.

24.2002 CLC 1206
Case Remanded
Where the Lower Appellate Court without discussing the facts available on record and without giving reasons for his findings and without applying his judicious mind passed the judgment, such judgment was arbitrary and without lawful authority which was set aside by High Court.

25.2002 C L C 1267
Proceeding before wrong forum- Limitation Act 1908
Filing of civil suit instead of execution petition—High Court advised that the appellant could move proper application for the implementation of earlier order of High Court with an application for condonation of delay caused due to proceedings before wrong forum under misconception or wrong advice

26.2003 C L C 1170
(Determination of Market Value) Pre-emption Suit
Sale consideration of the land entered in the mutation was Rs.10,000 but the vendee contested the suit to have purchased the suit-land for a consideration of Rs.83,000—Trial Court, on assessment of evidence decreed the suit in favour of plaintiff on payment of Rs.10,000 against the vendee —Appellate Court enhanced the market value of the suit-land to Rs.83,000—Validity—Pre-emptor had to shoulder the responsibility of proving the payment of consideration of sale of the property—Market value was to be determined on the factors i.e. location, fertility etc.

27.2003 MLD 222 [Election Tribunal N. W.F.P.]
Declaration of Assets
Rejection of nomination papers was a penalty, which could only be imposed, if an offence was committed or law violated Section 14 of the Act would apply, when false statements had been made with mens, rea, but not otherwise Mere existence of defect in nomination paper not of substantial nature and defect, which could be remedied, should not be made ground for rejection of nomination papers Returning Officers could ask respondents to file fresh “Goshwara Malkiat” Election Tribunal dismissed appeals in circumstances.

28.2003 YLR 2064
Suit for declaration and possession
Defendant claimed to be purchaser of suit-land through unregistered sale-deed. ¬Such sale-deed was not acted upon in Revenue Record & after his death inheritance mutation was attested in their favor. Defendant got sale mutation attested in his favor which was subsequently challenged by Plaintiff

29.2003 YLR 2084
Setting aside Ex-Party Decree
Trial Court while passing ex parte decree had overlooked its earlier order directing issuance of notice to defendants and their counsel, which had neither been issued nor served upon them. Ex-parte decree passed without notice to defendant-¬appellant and without directing ex parte proceedings against him, was nullity in eyes of law

30.2003 Y L R 2159
Recovery of Dower Amount
Father of husband had agreed to pay dower amount through agreement deed after filing of criminal case by plaintiff (wife) in respect of land entered in dower deed, but was not in existence at all– ¬Defendant in written statement had given evasive answer to relevant para of plaint–¬Evidence had been thrashed by Courts below, which being factual matters did not need interference—High Court dismissed Consti¬tutional petitioner in limine.

31.2004 CLC 231
Essential condition of sale
Proof of payment of some price in cash for thing sold is necessary. According to section 54 of Transfer of Property Act, it is to be proved that price/consideration has been paid to the owner.

32.2004 CLC 825
Un-registered Sale-Deed, Non-Production of Marginal Witnesses
¬Plaintiff claimed to be the owner of the suit property on the basis of unregistered deeds executed in her favor Plaintiff neither produced marginal witnesses of the deeds, nor the scribe. Plaintiff was required to prove execution of documents in accordance with law by producing marginal witnesses and scribe of the deeds

33.PLD 2004 Peshawar 95
Departure from the Pleadings
Party could not make a departure from its pleadings and was bound by the same

34.2005 P Cr. L J 623
Quashing of proceedings
Petitioner had sought quashing of proceedings initiated against him under S. 182, P.P.C. in the Court of Judicial Magistrate alleging that complaint filed by Police against him under S.182, P.P.C. was not competent as it was contrary to mandatory provisions of S.195, Cr.P.C. under which any offence punishable under Ss. 172 to 188, P.P.C. would be taken cognizance of only when complaint was made in writing by public servant concerned or by some other public servant to whom he was subordinate—Complaint filed by another official of said Police Station who being subordinate to S.H.O. was wholly incompetent—Validity—When a thing was required to be done by law in a particular manner it should be done in that manner or not at all.
35.2007 CLC 857
Ascertainment of Real Market Value
Land on main road side had lot of potential in terms of commercial as well as residential value. After ascertainment of real market value, compensation of acquired land should have been fixed more than market price—High Court, remanded case to Referee Court with direction to ascertain market value of acquired land

36.2007 MLD 2012
OVII R11 No Cause of Action
Defendants having clearly declared that they had neither interfered in the suit property nor they intended to do so, such a bald and unreserved statement of defendants should have pacified the plaintiff—Petitioner could proceed against defendants if any encroachment in the suit property was ever made by them-No cause of action there having accrued to plaintiff to institute suit, both courts below had rightly. applied their mind to reject the plaint.

37.PLJ 2008 Pesh 05
Absence of Documentary evidence
Change in nature of land and disputed boundaries was alleged based on verbal accusations. HELD– Court cannot create evidence in favor of plaintiff by appointment of Local Commission when plaintiff himself not made any efforts to prove his case beyond verbal contentions.

38.2009 CLC 1276
Gift vs Inheritance
Original owner of immovable property in dispute, had transferred said property through gift & sale mutation in favor of his two daughters/defendants—Third daughter of original owner challenged correctness of both the transactions of gift and sale; and claimed that they being Shari heirs of original owner. Both the gift and sale mutations were attested during the life time of the original owner by the Revenue Officer in “Jalsa Aam” in the presence of the notables of the area including Chairman Zakat Committee, Lamberdar and landowners of the area. Suits were filed by the plaintiff after many years of attestation of deeds and even much later than the date of death of executant/original owner. Plaintiffs could get no more than what the original owner had left behind for his other legal representatives at the time of opening of his succession.

39.2009 SCMR 598
Gift vs Inheritance
Transfer of land by deceased through mutations of gift and sale in favor of his two daughters excluding his third daughter from inheritance Plaintiff’s plea was that such mutations were the result of fraud and misrepresentation which they had failed to discharge initial onus to prove misrepresentation and fraud—Defendant had proved gift deed by producing its scribe and attesting witnesses.

40.2011 SCMR 972
Suit for recovery of amount of dower
Plaintiff(wife) was not entitled to recover amount of dower as defendant (husband) had alienated half of the share of his property in favor of the plaintiff—High Court, exercising its constitutional jurisdiction set aside finding of the Appellate Court—Validity—Defendant had failed to establish that 1/2 share of his house, which originally belonged to his father and which he had agreed to transfer in the name of the plaintiff in lieu of dower amount, had been transferred by him in favor of the plaintiff—Defendant could not produce on record any document in support of his claim—No case having been made out for grant of leave petition was dismissed

41.2013 YLR 357
Fard Jamabandi (Record of Rights column weightage)
Entry in column of ownership would prevail over column of cultivation—Entry in column of cultivation would prevail over column of lagan—Person entered as tenant-at-will in column of cultivation, for being a tenant, could not claim adverse possession.

42.2015 SCMR 825
Bail granted by Magistrate in Rape Case was dismissed
Complainant-victim was a virgin lady and according to medical evidence she was subjected to sexual intercourse. Magistrate allowing bail to accused for an offence under S. 376, P.P.C. according to Schedule-II, Column No. 8, Cr.P.C., said offence was triable by a Court of Session-Only function of the Magistrate after the receipt of report under S. 173, Cr.P.C. was to transmit the challan to the Court of competent jurisdiction/Sessions Court—Bail granting order passed by the Judicial Magistrate in the present case was without jurisdiction—Appeal was allowed accordingly and bail allowed to accused was cancelled.

43.2016 CLC Note 43
Pre-cautions as to Sale Deed Executed by Pardanasheen lady
Pardanasheen lady/plaintiff denied appearance before any Revenue Officer or recording statement and denied putting her thumb impression on the disputed mutation—-Whenever the transaction was accomplished with the pardanashin lady, extra ordinary care and caution is legally required to be taken in execution of the sale deed, as after the sale transaction, whenever it would be challenged by the lady, the vendee was to prove the facts relating to the sale deed by producing overwhelming evidence free from any doubt—Suit was rightly decreed in circumstances

44.2016 S C M R 1781
Power of Attorney Limitations
Attorney cannot utilize the powers conferred upon him to transfer the property to himself or to his kith and kin without special and specific consent and permission of the principal.

45.2016 SCMR 1141
Enhancement of Compensation—Land Acquisition
Suit land was acquired for the establishment of Army School of Water Sports—Collector fixed the compensation amount on the basis of one-year average rate. Suit land was situated on the road side and close to a dam, prime tourists’ resort, restaurants and commercial buildings, which were growing at a fast pace. Collector without constituting a Committee to re-assess the land again, had relied on the one-year average rate HELD—-The Collector should not remain stuck to the one-year average without taking into consideration the present and future potential of the land acquired

46.2016 Y L R 401
Co-ownership and contiguity
Where property was divided through private partition, such property would no more be joint property.Pre-emption of any (such) part of such property could not be allowed merely on the ground that such part originally formed part of the whole house (property)Pre-emption was a right of substitution, once it was established that pre-emptor was no more co-owner and no contiguity existed, suit would not be maintainable

47.PLD 2018 Peshawar 30
Succession Certificate
Appellant filed application for seeking succession certificate with regard to Bank account and valuable items lying in locker of the deceased—Trial Court issued certificate to the extent of Bank account only. Status of disputed items could not be determined by Trial Court exercising jurisdiction under Succession Act, 1925. Appropriate remedy for parties was to approach Civil Court under its plenary jurisdiction to first determine status of disputed items being legacy of deceased or otherwise

48.2019 MLD 1082
Limitation for setting aside Ex-Parte Decree
Once defendant appeared before the Court, joined the proceedings and thereafter disappeared in consequence thereof an ex parte decree was passed against him then provisions of Art. 164 of Limitation Act, 1908 would be applicable. Application for setting aside of ex parte decree was barred by five months in circumstances—Petitioners had not submitted any application for condonation of delay under S. 5 of Limitation Act, 1908—Period of limitation for setting aside of ex parte decree was thirty days.