1999SCMR968 (PLP)

MUHAMMAD BASHIR JEHANGIRI, J.

This petition for leave to appeal is directed against the order dated 24-4-1998 passed by the learned Judge in Chambers of Peshawar High Court dismissing revision petition filed by Syed Naveed Ali Shah, petitioner, against the order passed by the learned Sessions Judge, Kohat, whereby the amount of his surety bond amounting to Rs.1,00,000 had been forfeited and a direction for deposit till 28-10-1997 was made,.

2. The facts in the background of the case are that the petitioner and one Mushtaq stood sureties for Syed Sajjad Ali Shah, father of the petitioner, who was the accused of offences under sections 156(1)(8)(89) 157 and 178 read with section 219 of Customs Act, 1969 (IV of 1969) and under Articles 3 and 4 Prohibition (Enforcement of Hadd) Order, 1979 and executed bail bond in the sum of Rs.1,00,000 each. It appears that Syed Sajjad Ali Shah accused jumped the bail and absconded. In consequence, the petitioner was served with a notice under section 514, Cr.P.C. by the learned Sessions Judge, Kohat. The petitioner is alleged to have made best efforts to produce the accused but he could not do so because his father was under treatment in London. The reply put into the notice under section 514, Cr.P.C. was not found satisfactory by the learned trial Court, therefore, the entire amount of Rs.1,00,000 was forfeited with the direction to the petitioner to deposit it before 28-10-1997.

3. The petitioner, feeling aggrieved, fried a revision petition in the Peshawar High Court for reduction of the amount of bail bond 'in the larger interest of the substantial justice'.

4. Ch. Naseer Ahmad, learned Advocate Supreme Court, in support of this titled petition, contended that the petitioner stood surety for father who has gone to London for treatment and has not at all connived at the disappearance of his father/accused. It was further contended that the petitioner/surety has not gained any monetary benefit but was motived by sheer feeling of a son'. It was lastly contended that the co-surety of the petitioner, namely, Mushtaq has been ordered to deposit 1/10th of the forfeited amount and, thus, the former has been discriminated against in meeting out a harsher treatment, In support of these propositions, the learned counsel has placed reliance on: (1) Dildar and another v. The State (PLD 1963 SC 47), (2) Bahadur Khan v. The State (1976 PCr.LJ 1283), (3) Javid Iqbal v. The State (1985 PCr.LJ 1724), (4) Ali Jan v. State (1992 PCr.LJ 389).

5. All the case-law cited above has since been distinguished by this Court in the case of Malik Sher Ahmad Khan v. The State (1996 SCMR 244), Zeeshan Kazmi v. The State (PLD 1997 SC 267) and Saffar Khan v. The State (1997 SCMR 1983).

6. The old precedent of Dildar (supra) was considered in the Full Bench case of this Court in Malik Sher Ahmad Khan (supra) authored by one of us (Muhammad Bashir Jehangiri, J.), wherein the following reasoning in paragraphs 4 and 5 of the judgment was given as under for distinguishing the two:-- "

44. No doubt the sureties in the case of Dildar (supra) stood sureties out of what has been described as 'fellow-feeling' because they did not belong to the Province of residence of accused Amir Jan and, therefore, they did not know his antecedents. Again Amir Jan was stated to have died in Multan and had remained untraceable. On these considerations a lenient view was taken by this Court in Dildar's case.

5. In the instant case the petitioner is the Lambardar of the village to which Suleman accused belonged. He would be presumed to have had the knowledge of the credentials of Suleman accused. He was so dare devil that soon after his release on bail, he committed the murder (perhaps of his rivals) and had become fugitive from law. The case before us is, thus, clearly distinguishable from that of Dildar's case."

7. In the case of Saffar Khan (supra) we have made the following observations in para.6 which are reproduced hereunder:-- "We are inclined to approve the observations of the learned Chief Justice in this case that the attitude of the accused on account of leniency exhibited by the Court in imposition of penalty on the sureties is encouraging the accused to misuse the concession of bail by their absocondence. 1t is disquieting to note that the Courts seized of the matters in awarding the penalty on the forfeiture of bail bonds are not exercising the discretion equitably and justly. They are discharging this responsibility, to say the least without much care and caution often leading to misuse of the concession of bail by the accused by their abscondence and in most of the cases repeating, during that period, the commission of the same offences with impunity. It is with dismay to observe also that the Law Officers representing the interest of the State are also making undue concession without any hesitation thereby strengthening the sad trend of reducing the amount of penalty with shocking leniency."

8. In the instant case, the learned Judge, in exercise of his discretion has ordered the forfeiture of entire amount of bail bond. The discretion exercised by the learned trial Judge duly affirmed by the learned Single Judge in the High Court is not shown to be either perverse or fanciful. Syed Sajjad Ali Shah accused was the real father of the petitioner. It appears that the petitioner had connived at the abscondence of his father. The learned Single Judge in the High Court has rightly observed that the accused who was alleged to be in England undergoing treatment was not a convincing reason. Further that taking into consideration the fact that the case against the father of the petitioner related to Narcotics wherein 30 Kg. of Heroin had been recovered, the forfeiture of the l entire amount of bail bond was justified.

9. For the above reasons, we find no merit in this petition which is dismissed and leave to appeal is accordingly dismissed. N.H.Q./N-43/S Leave refused 1999SCMR971 [Supreme Court of Pakistan] Present: Saiduzzaman Siddiqui and Nasir Aslam Zahid, JJ ZAKIRULLAH KHAN and others

Appellants versus FAIZULLAH KHAN and others

Respondents Civil Appeals Nos.395 and 424 of 1994, decided on 3rd December, 1998 (On appeal from the judgment, dated 19-5-1993 of the Peshawar High Court passed in C.R. No.445 of 1991). . (a) Specific Relief Act (I of 1877)

S. 42

Civil Procedure Code (V of 1908), S. 115

Constitution of Pakistan (1973), Art. 185(3)

Suit for declaration to the effect that plaintiffs were owners of a specific share of suit property as heirs of the original owner and that the will-deed and mutation attested on the strength of such will-deeds was forged, collusive, based on fraud and ineffective on their rights

Defendants, another set of heirs, contested the suit and besides raising technical objections denied the allegations of plaintiffs in test and claimed exclusive title to the suit property on the basis of registered will-deed

High Court while modifying the order of Appellate Court granted the decree prayed for to the plaintiff to the extent of one-third share on the strength of the will-deed while one-third share in the suit property on the basis of inheritance

Validity

Leave to appeal was granted by Supreme Court, inter alia, to consider as to whether impugned will deeds were gift deeds or family settlement deeds and if these were will-deeds, then whether such deeds were executed by the common ancestor with the express or implied consent of the prospective heirs; whether the cross-objection filed by the plaintiffs legally competent and High Court could entertain the same and grant relief to the plaintiffs and whether the High Court in the exercise , of its revisional power could suo motu grant relief to the plaintiffs. (b) Interpretation of document

Will

Executant of the deed had mentioned in the deed that he was making "Wasiat"' and in the last lines of the deeds it was mentioned that Wasiat haza per badaz wafat amaldaramad hu gha

Held, there could not be any other construction of the deed but a will in view of the word ""Wasiat" used by the executant. (c) Muhammadan Law

Will

No evidence was available to show that the will had been executed by common ancestor with express or implied consent of other heirs

Mere silence of such other heirs for some period would not raise an inference that they had consented to the will made out whereby their share in the inheritance was substantially reduced. (d) Civil Procedure Code (V of 1908)

S.115

Revision

Scope

Where the High Court was seized of the matter in the revision petition, High Court had the jurisdiction under S.115, C.P.C. to pass such orders in the case as were thought fit to modify the judgment of the lower Court to correct any error of jurisdiction or where the lower Court, in the exercise of its jurisdiction, had acted illegally or with material irregularity. (e) Muhammadan Law

Will

Essentials

A Muslim could not make any will in favour of any heir unless the other prospective heirs had consented to such will. Safirullah Khan, Advocate Supreme Court for Appellants. Mian Younis Shah, Senior Advocate Supreme Court for Respondents. Date of hearing: 3rd December, 1998. JUDGMENT NASIR ASLAM ZAHID, J.

This judgment will dispose ox Civil Appeal No.395 of 1994 and Civil Appeal No.424 of 1995 as both arise out of the judgment, dated 19-5-1993 of a learned Single Judge of the Peshawar High Court whereby Civil Revision No.445 of 1991 filed by the appellants was dismissed and the Cross-Objection No.3 of 1992 filed by the respondents in the revision petition was accepted. Leave was granted against to the appellants the judgment of the High Court by order, dated 8-3-1994 of this Court which reads as under:-- "Zakirullah Khan and others petitioners herein, through Petitions Nos.198-P and 191-P of 1993. call in question the ,judgment, dated 19-5-1993 passed by a learned Single Judge of the Peshawar High Court, whereby Revision Petition No.445 of 1991 filed by them against the judgment of the Appellate Court, dated 15-9-1991, was dismissed and the Cross-Objection No.3 of 1992, filed by the respondents was accepted and the judgment and decree of the Appellate Court, dated 15-9-1991 was modified to the extent that the plaintiffs/respondents were also held entitled to their legal share. The facts of the case, briefly stated, are that Faizullah Khan and others respondents herein, filed a suit for declaration to the effect that they are owners of 80/ 160 share in the suit property described in the heading of the plaint as the heirs of Saadullah Khan and that the will deeds, dated 17-12-1980, 13-6-1980, 17-10-1977 and Mutation No.6499 attested on 8-2-1982 on the strength of will-deeds are forged, collusive, based on fraud and ineffective on their rights. Prayed for possession as a consequential relief was also made. The defendants/petitioners contested the suit and in their written statement, besides raising technical objection, denied the allegations of the plaintiffs respondents in tests and claimed exclusive title to the suit land on the basis of registered will deed, dated 17-10-1977. Necessary issues in the case were framed, evidence led pro and contra thereon recorded and the learned trial Court, vide judgment, dated 20-1-1990, dismissed the suit of the plaintiffs/respondents holding that Saddullah Khan, the original owner; had genuinely transferred this suit land in favour of the defendants /petitioners through gifts and made them full owner during his lifetime. However, the learned Appellate Court, vide its judgment and decree, dated 15-9-1991, did not concur with the conclusions arrived at by the trial Court and by accepting the appeal, set aside the judgment and decree of the trial Court and granted the decree prayed for to the plaintiffs /respondents to the extent of one-third share on the strength of the will-deed while one-third share in the suit property and dismissed their claim with regard to the remaining area because the defendants/petitioners had become owners of one-third share on the strength of the will-deed while one-third share on the strength of inheritance. The revision petition filed by the petitioners was dismissed through the impugned judgment and the cross-objection accepted as stated in the earlier part of this judgment. We have heard Mr. Safirullah Khan, Advocate, for the petitioner; Mian Younis Shah, Advocate, for the respondents; and have perused the record of the case. Leave is granted in these petitions, inter alia, to consider:

(i) Whether the impugned deed, dated 17-10-1977, 13-6-1980 and 17-12-1980 are will-deeds or gift deeds or family settlement deeds? (ii) If these are held to be will-deeds then whether these were executed by the common ancestor Saadullah Khan with the express or implied consent of the prospective heirs? (iii) Whether the cross-objection filed by the plaintiffs/respondents was legally competent and the learned High Court could entertain the same and grant relief to the plaintiffs/respondents? and (iv) Whether the learned High Court in the exercise of its revisional power could suo motu grant relief to the plaintiffs/respondents?" We have heard the arguments of Mr. Safirullah Khan, learned Advocate Supreme Court for the appellants and Mian Younis Shah, learned Senior Advocate Supreme Court for the respondents and, with the assistance of the learned counsel we have referred to the relevant record.

2. There is no need to recite the facts of the case as the same have been mentioned in some detail in the leave granting order reproduced above. Suffice is to observe that dispute between the parties related to the suit property which was owned by late Saadullah Khan who had two wives, Mst. Bilqees Begum and Mst. Sofia Begum. Plaintiffs/respondents are issues from his first wife Mst. Bilqees Begum while defendants/appellants are issues from the second wife. Appellants claimed the suit property on the basis of the 3 deeds mentioned in the leave granting order which were disputed by the respondents. The trial Court accepted the claim of the respondents and dismissed the suit of the appellants, but the Appellate Court modified the judgment of the trial Court on the ground that the will deeds were effective only to the extent of 1/3rd share and decreed the suit only to such extent. In revision filed by the appellants, who were claiming the entire suit land on the basis of the said deeds, the High Court, while dismissing their revision petition, allowed the cross-objection filed by the respondents (through they had not filed any revision against the appellate judgment) holding that the respondents were also entitled to their legal share according to Shariah in the remaining 1/3rd of the disputed property.

3. As regards the first point on which leave was granted, a bare perusal of the three deeds (D. W .1 /2, /D . W .1 /3 and D. W .1 /5) would show that these are wills and not gift or family settlements. In all these deeds made by Saadullah Khan in favour of the appellants it is mentioned by the executant that he was making "WASIAT " and in the last lines of the deeds it is mentioned as 8 follows:-- WASIAT HAZA PAR BAAD WAFAT AMAL HO GA There cannot be any oilier construction of the said deeds in view of the aforesaid express words used therein by Saadullah Khan. Concurrent findings of the Appellate Court and the High Court, therefore, do not suffer from any error of this question to call for interference.

4. Admittedly, the said three wills were made in favour of legal heirs which purportedly affected the shares of the legal heirs of deceased Saadullah Khan to which they were entitled according to Islamic law of inheritance. However, the second point on which leave has been granted is that, if these deeds are held to be wills, then whether these were executed by the common ancestor Saadullah Khan with the express or implied consent of the prospective heirs. There was no evidence on record to establish that the respondents, the other legal heirs who were not beneficiaries under the said wills, had expressly or impliedly consented to the said wills executed by Saadullah Khan in favour of the appellants. Mr. Safirullah Khan, learned counsel for the appellants had argued that the said transfers in favour of the appellants had been confirmed through mutations in the Revenue Records and he referred to Mutations Nos.6499, dated 8-2-1982 and 6509, dated 6-5-1982. According to learned counsel, the fact that the respondents kept quite for such a long time would amount to implied consent on their part to making of the wills in favour of the appellants. The arguments is ex-facie without any substance. Mere silence of the respondents for some period would not raise an inference that they had consented to the wills made out in favour of the appellants whereby their share in the inheritance was substantially reduced. There is no evidence on record to the effect that the said wills had been executed by Saadullah Khan with express or implied consent of the respondents.

5. Points Nos.3 and 4 on which leave has been granted can be taken together. It was argued, as observed earlier, on behalf of the appellants that against the appellate judgment, whereby the wills had been held to be valid to the extent of 1/3rd share in the disputed land, respondents had not filed any revision petition and only appellants had approached the High Court under section 115, C.P.C. According to learned counsel, there is no provision in the Code of Civil Procedure whereby the provisions relating to filing of cross- objections in appeals under Order 41, rule 22, C.P.C. are extended to revisions. In the circumstances, contention as that the cross-objections filed by the respondents in the revision petition of the appellants were not competent and, therefore, the High Court had no jurisdiction to modify the Appellate Court's judgment and give any relief to the respondents and the most it could do was to dismiss the Revision filed by the appellants. We may refer to para. 9 of the impugned judgment of the High Court which reads as follows:-- "In the light of the above injunctions and provisions we can say that Saadullah Khan could not bequeath the property to his heirs in his life time and when other heirs had not consented to the bequest that is no; valid under the Muslim Law. Notwithstanding the fact that the revision by the defendant/petitioner has been filed against the judgment and decree, dated 18-9-1991 of the learned Additional District Judge, Kohat, I allowed the learned counsel for the plaintiffs-respondents to raise the question as to whether under Islamic Law will could be made to an heir as it was the moot point wrongly decided by the Appellate Court. The High Court in revision has the power to correct the findings under section 115, C.P.C. In AIR 1960 J&K 22; it is held that:-- . "No doubt, Rule 22 under which a memorandum of objections can be preferred by a respondent in an appeal does not extend to revision petition. But the High Court has sufficient powers, when it is seized of a competent revision and when all the parties are before it, to entertain questions which may be raised by the respondent and deal with these questions as it thinks fit. But in order to succeed, the respondent is bound to show that the grounds on which he attacks the findings of the trial Court fall within the purview of section 115, of the Code of Civil Procedure. This requirement applies to him as much as it applies to the petitioner. " No exception can be taken to the above view of the High Court that in this case where the High Court was seized of the matter in the revision petition filed by the appellants, the High Court had the jurisdiction under section 115, C.P.C. to pass such orders in the case as it thought fit to modify the judgment of the lower Court to correct any error of jurisdiction or where the lower Court had, in the exercise of its jurisdiction acted illegally or material irregularity. Under the Islamic law, Saadullah Khan could not make any will in favour of any heir unless the other prospective heirs had consented to such will and despite the Islamic law of inheritance being clear on this point, as the Appellate Court had illegally confirmed the will made by Saadullah Khan in favour of the appellants to the extent of 1/3rd of the suit land, the Appellate Court's illegal finding to that effect could be corrected by the High Court. In these circumstances, no exception can be taken to the exercise of jurisdiction by the High Court under section 115, C.P.C. by allowing the cross-objections of the respondents.

6. As a result, we find no merit in both these appeals which are dismissed but with no order as to costs. M.B.A./Z-23/S Appeals dismissed.