2012 PLP 859 (MLD)

AMIN-UD-DIN KHAN, J.

By this single judgment I intend to dispose of Writ Petitions Nos.1523, 1842, 250 of 2007 and Writ Petitions Nos.444 and 458 of 2008 as common question of law and facts are involved in all these matters.

2. In this final round of litigation this phase started when the august Supreme Court of Pakistan vide order dated 17-4-1996 passed in C.P.L.A. No.1276-L-1995 filed against the judgment dated 29-5-1995 passed in I.C.A. No.16 of 1995 titled Muhammad Ramzan and others v. the Member (Colonies) Board of Revenue, Punjab Lahore sent the matter to the respondents authority to carry out demarcation. The operative part of the order is as under:-- "It also appears that the demarcation relied upon by the counsel for Cholistan Development Authority was not carried out in the presence of the petitioners. In the circumstances, we dispose of this petition with the direction that respondent authorities shall carry out fresh demarcation of the land in dispute in the presence of the petitioners to find out whether it falls within the colony area or Cholistan area. Needless to observe that after the fresh demarcation the petitioner may apply to the relevant authorities for allotment/regularization of possession and their applications shall be decided in accordance with law".

3. The case of Muhammad Ramzan and others before the Board of Revenue was that they have made the land cultivable. They are also trespassers and unauthorized occupant since 1976. The real controversy between the parties was whether the land in dispute falls within the administration of Cholistan Development Authority or in the colony area governed by the Secretary (Colonies) Board of Revenue Punjab, Lahore. The august Supreme Court of Pakistan ordered the authority to resolve this issue. After the orders of august Supreme Court of Pakistan through the impugned decision by the Full Board of Revenue on 15-4-2006 it was demarcated that whole of the land of Chak No.140-A is colony area and falls under the control of Board of Revenue, whereas the stand of Cholistan Development Authority is that Chak No.140-A has two parts, one is Chak No.140-A consisting of 1710 acres, whereas Chak No.140/A northern consisting of 1610 acres. This 1610 acres land is in dispute. After the orders of august Supreme Court of Pakistan a detailed inquiry by the lower staff of the Board of Revenue after associating the parties was conducted. On the basis of inquiry report Full Board has decided that whole the area fall within the territory of Chak No.140-A. The disputed land 1610 acres also falls in this Chak and is under the administration of Member (Colonies) Board of Revenue Punjab, Lahore. This determination and demarcation of land through order dated 15-4-2006 by the Full Board of Revenue is under challenge in Writ Petition No.1523 of 2007 filed by the Cholistan Development Authority against the Full Board of Revenue and Jamal Din etc. against Full Board of Revenue in Writ Petition No.1842 of 2007. Whereas other three Writ Petitions Nos. 250 of 2007, 444 and 458 of 2008 have been filed by the petitioners with the prayer that respondents Nos.1 to 3 of these writ petitions be directed to finalize the matter and grant proprietary rights to the petitioners. Whereas in other two writ petitions referred (supra) decision of the Full Board of Revenue dated 15-4-2006 has been challenged and against the order dated 15-4-2006 one review was filed by the Cholistan Development Authority and other review was filed by Jamal etc., both the review petitions were dismissed by the Board of Revenue Punjab on 12-6-2007.

4. Learned counsel for the respondents have raised some preliminary objections that the Cholistan Development Authority has been established through the Cholistan Development Authority Act No.XIV of 1976. This being subservient department of Board of Revenue has no authority to challenge the decision of the Full Board of Revenue. Further that writ petitioners of Writ Petition No.1842 of 2007 to whom the land has been allotted in the year 2002 and matter was sent to the Full Board of Revenue by the august Supreme Court of Pakistan on 17-4-1996 therefore, they have no right to challenge the decision of Full Board of Revenue. Another important feature to be noted here that during the pendency of writ petitions, in Writ Petition No.1842 of 2007 on 14-5-2008 with the concurrence of the parties Local Commission was appointed District Judge Rahimyarkhan to submit report in this Court. The order dated 14-5-2008 is re-produced for ready reference as under:-- "14-5-2008 Mr.M.Sohail Iftikhar, Advocate. Mr.Ahmad Awais, Advocate. Sh.Masud Ashraf, Advocate. Mr.Ahmad Mansoor Chishti, Advocate Hafiz Muhammad Abdul Qayyum, Advocate. Mr.Abdul Khaliq Sadozai, Mr.Naveed Chaudhary, A.A.-G. with Muhammad Arshad Gopang DDO with Gayyur Abbas, Naib Tehsildar and Shabbir Ahmad Colony Clerk Liaqatpur. With the concurrence of all the learned counsel the learned District Judge Rahimyarkhan is appointed as a Local Commission to determine the following questions:- (i) Whether Chak No.140-A (Northern) Tehsil Liaqatpur falls under the colony area or it is situated within the area of Cholistan Development Authority ; (ii) Whether Chak No.140-A Abbasia) and Chak No.140 (northern) are two different chaks or one of the same; (iii) Whether area of Chak No.140-A Northern measuring 1606 acre falls within the area of Cholistan Development Authority; (iv) Whether the area of Chak No.140-A measuring 1706 acre falls within the limits of colony area. (2) The learned District Judge-Local Commission will also examine the revenue record as well as the record of Cholistan Development Authority and Irrigation Department with the help of their representatives as well as decision given by the Board of Revenue at different occasions in pursuance of the direction of Hon'ble Supreme Court. He is also authorized to examine the previous judgment passed by this court as well as the superior courts .Learned local commission will also record the evidence of the parties, if deem necessary for coming to definite conclusion. The revenue Department as well as Cholistan Development Authority is directed to extend him full cooperation. (3) The office is directed to send a copy of this writ petition along with all the annexures to the learned District Judge, Rahimyar-Khan. (4) The fee of the local commission will be Rs. 50,000 to be paid by the private parties in equal shares through the Revenue Department as well as through Cholistan Development Authority within a period of two weeks. The report should be submitted within a period of two months of the receipt of this order. Re-list on 9-9-2008"

5. Learned counsel for Cholistan Development Authority advanced very lengthy arguments. The main emphasise of his arguments is on the various reports submitted by the lower staff to the Board of Revenue. He has tried to make up his case on the basis of those reports wrote by the Patwari to the high officials of the district which were in various times submitted before the Board of Revenue. Further he has contended that the report of commission cannot be relied upon. Further he has referred some minutes of the meeting held on 15-6-1999 and prayed that in accordance with these minutes Chak No.140-A (Northern) falls under the administration of Cholistan Development Authority. Further contended that the report which has been referred by the Full Board of Revenue has already lost its value.

6. Learned counsel appearing on behalf of Jamal etc. has also challenged the decision of demarcation of Full Board of Revenue and he stated that full inquiry was not conducted by the board before the determination. He further stated that he has not been given right to lead evidence and also no opportunity of cross-examination was given. In review he stated that board has not heard the petitioner on merits, therefore, the demarcation order passed by the Full Board of Revenue is without jurisdiction. Further states that there is no fault on behalf of the petitioners. They have been allotted land by the department of the Govt. Further states that the report submitted by the Commission has no value as the commission never appeared before this Court to prove his report. He has prayed that matter be remanded to the Board of Revenue for re-determination.

7. On the other hand, learned counsel for the respondents as well as Mr.Naveed Khalil Chaudhary, A.A.-G. appearing on behalf of Govt. of Punjab while adopting the preliminary objections further submitted that the petitioners have absolutely no right to challenge the determination of the Full Board of Revenue. The learned A.A.-G. submits that the Cholistan Development Authority is subservient to the Board of Revenue; they cannot transfer the lands of their own to any one. They can just make allotment and refer the matter for transfer of proprietary rights or final decision to the Colony Department Board of Revenue Punjab, Lahore. Board of Revenue is actual custodian of the property which is lying in the colony area or even in the Cholistan area. The transfer of rights can be granted only by the Colony Department of Board of Revenue Further that during the pendency of the process of decision of character of land, the land has been dishonestly allotted by the Cholistan Development Authority to the petitioners of Writ Petition No. 1842 of 2007, therefore, they have no right to challenge the decision of the Board.

8. I have heard the arguments of the learned counsel the parties at length and have perused the record.

9. I have noticed that the objections raised by the petitioners side are not even with regard to the roots of the case but the same are very frivolous in nature as the counsel for the petitioners who has challenged the Full Board of Revenue decision wants that the decision be set aside on the basis of various contradictory reports made by the lower staff of the revenue department. No one has pointed out any illegality or material defect in the impugned decision of Full Board of Revenue dated 15-4-2006. The reports of the lower staff cannot be termed as order. The contention of the learned counsel for Cholistan Development Authority that in the presence of one report the other report cannot be relied upon which is misconceived. It is not an order that after setting aside first order the second order be passed. These are just report of the lower staff which were made in various times. The Board of Revenue has relied the report and consulted the additional record before the Board of Revenue to reach to its conclusion. In this constitutional jurisdiction I am trying to refrain myself from indulging in the factual controversy, although the record of these two writ petitions is very voluminous and the arguments with regard to the factual controversy were also very long as full two days were consumed, I have heard the arguments of the learned counsel for the parties as they were inclined to argue each and every factual point before this court also. Though I have heard the arguments of the learned counsel for the parties on factual point also but there is no need to discuss all the points as they are not required to be discussed in issuance or otherwise of writ of mandamus by this court. The arguments of the learned counsel for the petitioners in Writ Petition No.1842 of 2007 with regard to the recording of evidence or giving opportunity for cross-examination and for non-hearing of the review filed before the Board of Revenue on merit which were also maintainable. Before coming to the legal position, I have noticed that after the orders of this court the learned District Judge, Rahimyarkhan for preparing the report with regard to the four questions referred to him, I have noticed that all the contesting parties have appeared before him and also filed documents in their respective claim, which are not less than 500 in numbers. They have also submitted written submission in detail before the Local Commission. As per findings of the Local Commission and his report dated 30-3-2008, the Local Commission on Question No.2 reported in para No.18 of his report which is as under:-- "In view of the above facts and discussion, I am of the considered view that there is only one Chak No.140-A (Abbasia) which consists upon the total land measuring 3316 acres which includes the undisputed land 1706 acres and disputed land of 1606 acres. There is no chak under the name of 140-A (Northern) Sadiqia Canal System as it existed on 1-1-1950 and outside the irrigation boundary of the Chaks in the attached schedule."

10. I am not going to critically examine on the touchstone of the objections of the counsel for the petitioners and scrutinize the report of the Local Commission. In my view the reference of the matter to the Local Commission was not necessary. Now the learned Local Commission has put his full labour in preparing the report and the learned counsel for the parties have joined him and report is in accordance with the existing reality at the spot and this report also strengthened the findings of the Full Board of Revenue's decision dated 15-4-2006. After submission of report the Local Commission was transferred to Rawalpindi from Rahimyarkhan and twice came to this court but his statement could not be recorded. Even otherwise there was no necessity in the eventuality of the above referred circumstances to record his statement. There is no denial that this report has not been submitted by the Local Commission appointed by this court .The labour put by the Local Commission is appreciable. Only Jamal etc., have filed objection to the report, no other person has filed objection on the report.

11. Now I come to the legal points. The Cholistan Development Authority was created under Cholistan Development Authority Act No.XIV of 1976. The purpose of this act has been given in the preamble. The purpose is only to speedy development and better administration of Cholistan Area of Bahawalpur Division. In accordance with sub-section (2) of section 1 of Cholistan Development Authority Act, 1976 Act No.XVI of 1976, it shall extend to such area as may be notified as Cholistan area by the Govt. The notification of the boundary of Cholistan is available as Annexure-B on the file. It is very strange that the notification for the boundaries of Cholistan Area was prepared on 14-11-1977 but was published vide No.7339-77/3730-CII on 3-3-1988. Admittedly Chak No.140-A does not fall within the area notified as Cholistan area. The ingredient which was required by the Cholistan Development Authority to prove that this impugned area has been notified as Cholistan Area, the Cholistan Development Authority failed to prove. The objection raised by the learned counsel for the respondents that Cholistan Development Authority cannot file the writ petition against the decision of Full Board of Revenue in accordance with the provisions of Clause (i) of subsection (1) of section 16 of Cholistan Development Authority Act No. XIV of 1976 as under:-- With approval of the Government grant land to any person on any condition it thinks fit and for this purpose issue a statement or statements of conditions on which the authority is willing to grant land;

12. As only the authority has just a right to initially allot the land and the final determination is with the Govt. through the Member (Colonies) Board of Revenue Punjab, Lahore. In this way Cholistan Development Authority in the matters of development and allotment of land is subservient to the Board of Revenue, Lahore. When Full Board of Revenue is the custodian of the land owned by the Govt. of Punjab, after full deliberation and consultation of the record has determined that the land in dispute falls in the area of colony area under administration of the colony department of the Board of Revenue Punjab Lahore. Learned counsel for the petitioners has failed to point out any jurisdictional error or defect in determination of Board of Revenue. In the light of what has been discussed above, I am not inclined to exercise my extraordinary constitutional jurisdiction in favour of the petitioners of Writ Petitions Nos.1523 of 2007 and 1842 of 2007, therefore both these writ petitions stands dismissed. In Writ Petitions Nos. 250 of 2007, Writ Petition No. 444 of 2008 and Writ Petition No.458 of 2008 the prayer of the petitioners is that respondent No.1 be directed to finalize the matter of grant of proprietary rights of the petitioners when two writ petitions (supra) have been dismissed, the Writ Petition No. 250 of 2007, Writ Petition No.444 of 2008 and Writ Petition No. 458 of 2008 are disposed of with the directions to respondents Nos. 1 to 3 to process the matter for finalization of proprietary rights in favour of the petitioners. As the writ petitioners of Writ Petition No.1842 of 2007 claim allotment from the Cholistan Development Authority, the Board of Revenue Punjab, Lahore may also consider their cases purely on merits and if Cholistan Development Authority has already allotted the land to them on merits then their cases must be considered by the Board of Revenue. H.B.T./C-11/L Order accordingly. 2012 M L D 867 [Sindh] Before Muhammad Ali Mazhar, J QASIM

Applicant versus THE STATE

Respondent Criminal Bail Application No.S-654 of 2011, decided on 1st March, 2012. Criminal Procedure Code (V of 1898)

S. 497

Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(2)

Haraabah

Bail, grant of

Bail sought on ground of statutory delay in conclusion of trial

F.I.R. was lodged after about a month of the incident as the complainant was receiving treatment in a hospital and, in circumstances possibility of false implication of the accused could not be ruled out as it was probable that F.I.R. was lodged after due deliberation and consultation

Case diary revealed that on most of the dates accused was produced in custody but the trial was adjourned for non-availability of prosecution witnesses or adjournment was sought by the complainant or court work was suspended and on two dates Vakalatnama was filed on behalf of the accused persons

Period of detention of accused was more than one year, if counted from the date of framing of charge against him, and detention period was more than twenty one (21) months, if time was reckoned from the date of his arrest, but trial had not been concluded and the reasons for delay shown could not be attributed to the accused

Prosecution did not contend that accused was a previous convicted offender for an offence punishable with death or life imprisonment and/or was a hardened, desperate and dangerous criminal

Accused was entitled to be released on bail on grounds of statutory delay in conclusion of his trial. Arbab Ali Chandio for Applicant. Sardar Ali Shah Rizvi Assistant Prosecutor-General for the State. Date of hearing: 27th February, 2012. ORDER MUHAMMAD ALI MAZHAR, J.

The applicant has applied post-arrest bail in Crime No. 18 of 2010, lodged at Police Station, Faiz Ganj, under section 17 (2) Offences Against Property (Enforcement of Hudood) Ordinance, 1979.

2. The bail application was moved in the trial court, but it was dismissed vide order dated 16-6-2011.

3. Briefly, the facts of the prosecution case, are that on 9-2-2010 complainant lodged the F.I.R. that on 10-1-2010 he along with his brother Kaisar Ali, uncle Muhammad Hussain had gone to the house of his uncle Allah Ditto to give milk and while returning back, at about 7-30 p.m., they saw and identified three persons, namely, Hameed alias Jumo Khaskheli armed with KK, Qasim (applicant) armed with repeater, and Zakir Khaskheli armed with TT pistol. All the accused persons threatened the complainant party not to raise cry else they will be killed and directed them to hand over money to them. On resistance, Qasim fired upon complainant from his repeater which hit on his arm. On their cries, villagers came and accused persons fled away. The complainant was taken by P.Ws. to P.S. Faiz Ganj, from where he obtained letter for treatment to RHC, Faiz Ganj and he was referred to Nawabshah Hospital, where he was treated and after treatment, he came at Police Station Faiz Ganj and lodged the report.

4. The learned counsel for applicant argued that there is an inordinate delay of at least one month in lodging the F.I.R. without any proper explanation. Learned counsel further argued that in the F.I.R. it was stated that letter for medical treatment was issued but no N.C. was recorded at Police Station which is quite astonishing. It was further averred that nothing was recovered from the present applicant though he was in police custody. He further argued that according to mashirnama not a single empty was recovered from the place of incident which also creates doubt. No injury was caused on any vital part of the body, therefore, offence does not fall within the prohibitory clause of section 497, Cr.P.C. The learned counsel further argued that applicant is behind the bars for last more than one year but his trial has not been concluded and there is no possibility in near future for concluding the case expeditiously.

5. On the contrary the learned A.P.-G. argued that specific role has been assigned to the applicant in the F.I.R. who was armed with Repeater and caused injury to the complainant. He further argued that according to medical certificate the injury was certified as Ghayr Jaifah Munaqqillah falling under sections 337-F(vi), P.P.C. which is punishable up to 7 years. He concluded that in the present circumstances the applicant is not entitled to be released on bail.

6. It is clear from the record that the alleged offence was committed on 10-1-2010 and the F.I.R. was lodged on 9-2-2010. The complainant stated in the F.I.R. that after receiving letter for treatment he was referred to Nawabshah hospital and after completing his treatment he went to Police Station and lodging the F.I.R. which took at least one month time which create doubts and the possibility of false involvement of the applicant cannot be ruled out and it is also probable that after due deliberation and consultation the F.I.R. was lodged. Learned counsel argued that even no N.C. was recorded which arguments was not rebutted by learned A.P.-G. The bail application was dismissed by the learned trial Court on 16-6-2010 in which it was stated that the case is fresh one and even the charge has not been framed. The F.I.R. was lodged on 9-2-2010 and the applicant is in custody since 1-4-2010. Since the offence is not punishable with death and present applicant is under detention more than a period of one year and trial has not been concluded therefore, in order to seek benefit and advantage of amendment made under section 497, Cr.P.C, the learned counsel for the applicant has also, filed the diary sheets of the trial Court from 21-12-2010 to 23-6-2011.

7. I have scrutinized the case diaries. From 21-12-2010 to 20-1-2011, there were three formal dates in which on two dates, the applicant was not produced by the jail authorities and on one date the documents were supplied to the accused persons. Thereafter the matter was fixed on 1-2-2011 for framing of charge and then it was adjourned to 10-2-2011 with the directions to issue process to prosecution witnesses and also call case property. In between 10-2-2011 and 23-6-2011, the case was fixed for 10 times but matter was not proceeded for one or the other reasons. It is also clear that most of the dates, the applicant was produced in custody but the matter was adjourned for non-availability of prosecution witnesses or adjournment was sought by the complainant or work was suspended and on two dates, Vakalatnama was filed on behalf of accused persons. It appears that till 23-6-2011, not a single witness was examined in the case. Though for counting or ascertaining the delay, mathematical calculation is not required, however, in order to determine the actual cause of delay, I examined the diary sheets and reached to a conclusion that if the period of detention of the present applicant in the crime in question is counted from the date of framing of charge it is more than one year and if time is reckoned from the date of his arrest, his period of detention is more than 21 months but the trial has not been concluded and apparently the reasons for the delay shown in the trial cannot be attributed to the present applicant.

8. In view of the amendment made under section 497, Cr.P.C, it is clear that the court except where it is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf direct that any person shall be released on bail who being accused of an offence not punishable with death has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded. The crime in question is not punishable with death and period of detention is much more than one year but the trial has not been concluded so far. The learned A.P.-G. did not argue that present applicant is previously convicted offender for an offence punishable with death or life imprisonment and or is a hardened, desperate and dangerous criminal, therefore, in my view, the applicant is entitled to be released on bail on the ground of statutory delay as he cannot be held responsible or accountable for the delay in the trial which is obvious and noticeable from the case diaries produced by the learned counsel for the applicant.

9. For the foregoing reasons the applicant is granted bail subject to furnishing solvent surety in the sum of Rs.200,000 (Two lacs) and PR bond in the like amount to the satisfaction of trial Court. The trial Court is also directed to expedite the trial and dispose of the case according to the directions contained in the National Judicial Policy. M.W.A./Q-1/K Bail granted.