2022 PLP 1647 (SCMR)

MAZHAR ALAM KHAN MIANKHEL, J.

This appeal with leave of the Court is directed against the judgment dated 10th September, 2002 whereby Civil Revision No.507/1992, filed by Mst. Noor Bibi (now deceased), mother of the appellants, was dismissed and judgments and decrees of the Courts below (decreeing the suit of plaintiffs/ respondents Nos.1 to 7) were upheld.

2. The facts necessary for adjudication of this matter are that one Alia (in revenue record, recorded as Ali Bakhsh), who was the common ancestor of the parties, was owner of 218 kanals 05 marlas of agricultural land situated in Chak No.491/GB, Tehsil Samundri. Upon his death, his three sons namely Imam Din, Karim Bakhsh and Rahim Bakhsh inherited his aforesaid property in equal shares. Imam Din died in the year 1922. Having no male issue, his widow namely Mst. Amina Bibi, succeeded him as a limited owner under the customary law prevailing at that time, for her lifetime or until her remarriage. She got re-married somewhere in 1935/36. Her re-marriage resulted into termination of her limited interest in the property. Mst. Noor Bibi (now deceased), defendant No. 1, daughter of Imam Din and mother of the present appellants (Mst. Noor Bibi), replaced her mother with similar terms as a limited owner of the said property until her marriage. She got married in the year 1944-45 which legally terminated her limited interest in the property but no changes in the revenue record were made in this regard. The claim of the plaintiffs (L.Rs. of Karim Bakhsh) through plaint was that after the marriage of Mst. Noor Bibi, the limited owner, the property left by the last full owner (Imam Din) would revert back to his actual legal heirs, the real brothers Karim Bakhsh and Rahim Bakhsh, (the predecessors of plaintiffs and defendants Nos.2 to 6 respectively). It is in this backdrop, Dilawar Hussain etc. respondents herein, the plaintiffs of the main suit ("plaintiffs"), filed a suit for declaration that they, being legal heirs of Karim Bakh, along with legal heirs of Rahim Bakhsh (the defendants Nos. 2 to 6 in the main suit) (defendants), may be declared as owners in possession of the said property by updating/correcting entries of the revenue record in this regard. Since Mst. Noor Bibi married with Faiz Muhammad (one of the son of Rahim Bakhsh), the legal heirs of Rahim Bakhsh did not join the plaintiffs, Dilawar Hussain etc. in the suit, therefore, they were impleaded as defendants. The suit of the plaintiffs was decreed by the learned Civil Judge, Samundri vide Judgment and Decree dated 28th November, 1987 appeal where against filed by Mst. Noor Bibi, defendants Nos.2 and 4 to 6 (the son and the daughters of Rahim Bakhsh), was dismissed by the learned Additional District Judge, Faisalabad vide Judgment and Decree dated 23rd February, 1992 and concurred with the findings of trial Court. The civil revision, filed by Mst. Noor Bibi alone by making her other co-appellants as respondents, was also dismissed by the High Court vide impugned judgment dated 10th September, 2002. Hence the instant appeal with leave of the Court granted on 29th January, 2003 which reads as under:- "Leave to appeal is granted to consider entitlement of Mst. Amina Bibi as widow of Imam Din to the extent of 1/8th share under the Islamic law of whom Petitioners are the heirs.

2. Status quo as on date to be maintained by the parties."

3. We have heard the learned counsel for the parties and have gone through the available record.

4. The record shows that the legal heirs of Karim Bakhsh, the plaintiffs (respondents Nos.1 to 7 herein) filed a suit for declaration by impleading Mst. Noor Bibi as defendant No. 1 and legal heirs of Rahim Bakhsh as defendants Nos.2 to 6 (respondents Nos.8 to 12 herein) and alleged and claimed the suit property to be their exclusive ownership along with legal heirs of Rahim Bakh, defendants Nos.2 to 6, in equal shares (as sharers) by excluding Mst. Noor Bibi as being not entitled after termination of her limited interest. Mst. Noor Bibi (now the appellant) through her legal heirs, denied the allegations made in the plaint and claimed herself to be the exclusive owner of the entire property, inherited from her father. Their suit was decreed in their favour by Civil Judge, Samundari, Faisalabad vide judgment and decree dated 28.11.1987 by holding the plaintiffs and defendants Nos.2 to 6 to be the owners to the extent of their respective shares on termination of limited interest and by operation of law automatically and attestation of any mutation in this regard is not necessary. Besides the above, there was no specific finding regarding the entitlement of Mst. Noor Bibi (predecessor of appellants) and decided issues Nos.9 and 10 in favour of plaintiffs and defendants Nos.2 to 6 (all respondents herein). Similarly issue No.2 regarding limitation was also decided in their favour.

5. The appeal against the judgment and decree dated 28.11.1987 of the Civil Judge, Samundari, Faisalabad filed by Mst. Noor Bibi, defendant No.2 Faiz Muhammad, her husband, and the three daughters of Rahim Bakhsh was dismissed by the learned Additional District Judge, Faisalabad vide his judgment and decree dated 23.02.1992. However, the question of limitation was concurrently decided in favour of the parties. The civil revision was filed by Mst. Noor Bibi alone. The learned Judge-in-Chambers upheld the concurrent findings of the two Courts below including the question of limitation. Perusal of the findings of all the three Courts below would reflect that the plaintiffs (legal heirs of Karim Bakhsh) and defendants Nos.2 to 6 (legal heirs of Rahim Bakhsh) (both of them now respondents) have been declared to inherit as residuaries/collaterals after termination of the limited interest of defendant No.1 (predecessor of appellants) but nothing specifically has been said regarding the entitlement of Mst. Noor Bibi.

6. The controversy between the parties revolves around the inheritance of one Imam Din son of Alia (Ali Bakhsh) who died in the year 1922 (as appears from the inheritance mutation in the name of his widow Mst. Amina Bibi) when the customary law of inheritance was prevailing in the area. After his death, her widow Mst. Amina Bibi succeeded him as a limited owner as he had no male issue and when she got remarried (somewhere in the year 1934/35), the limited interest in the property left by Imam Din was transferred to Mst. Noor Bibi his daughter and mother of present appellants. When Mst. Noor Bibi got married probably in the year 1944/45 (the evidence and the record confirm so and are also not disputed by anyone else) her limited interest in the property was legally terminated but no such entries were made in the revenue record and her name appears now as a full owner in the existing revenue record. The dispute between the parties starts from here.

7. The law on the subject is very much clear that in the event of death or marriage of a Muslim female, having limited interest in the property under the customary law, the succession would be deemed to open on such termination in favour of all the persons who would have inherited the last full owner at the time of his death, had the Punjab Muslim Personal Law (Shariat) been applicable at the time of his death. Even in case of death of any legal heir before termination of the limited interest, as stated above, succession would also devolve on his legal heirs to the extent of share of deceased legal heir. The law had also protected the shares of females who retained limited interest in the property will also get their sharai shares as if the Muslim Personal Law (Shariat) was applicable at the time of death of last full owner. Section 3 of The West Punjab Muslim Personal Law (Shariat) Application Act, 1948 ("Act-IX of 1948") which deals with the situation is reproduced for ready reference:- "

3. In respect of immovable property held by a Muslim female as a limited owner under the Customary Law, succession shall be deemed to open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of the last full owner, had the Muslim Personal Law (Shariat) been applicable at the time of such death, and in the event of the death of any of such persons before the termination of the limited interest mentioned above, succession shall devolve on his heirs and successors, existing at the time of the termination of the limited interest of the female, as if the aforesaid such person had died at the termination of the limited interest of the female and had been governed by the Muslim Personal Law (Shariat): Provided that the share which the female limited owner would have inherited, had the Muslim Personal Law (Shariat) been applicable at the time of the death of last full owner, shall devolve on her, if she loses her limited interest in the property, on account of her marriage or remarriage and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates because of death.

8. Since there were different laws in force in the different provinces of West Pakistan, a consolidated law known as West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (the "Act V of 1962") was promulgated on 31st December, 1962, section 2 whereof is the reproduction of section 2 of the Act of 1948. However, under section 3 of the same, the limited estates held by Muslim females under the Customary Law were terminated and section 5 thereof prescribed the procedure for the devolution of property on the termination of such estate more or less in the same manner as was provided under section 3 of the Act of 1948. The Act of 1962, while repealing all the previous laws and removing the ambiguities in the previous laws, prescribed the following procedure in section 5 supra for the devolution of property on the termination of limited interest in the property: - "

5. Devolution of property on the termination of life estate and certain wills.

The life estate terminated under section 3 or the property in respect of which the further operation of a will has ceased under section 4 shall devolve upon such persons as would have been entitled to succeed under the Muslim Personal Law (Shariat) upon the death of the last full owner or the testator as though he had died intestate; and if any such heir has died in the meantime, his share shall devolve in accordance with Shariat on such persons as would have succeeded him if he had died immediately after the termination of the life estate or the death of the said legatee: Provided that the share to which a Muslim female holding limited estate under Customary law would have been entitled under the Muslim Personal Law (Shariat) upon the death of the last full owner shall devolve on her". Besides the above, Act V of 1962 has also given the retrospective effect to the provisions of sections 3, 4 and 5 which even covers the questions and ambiguities of law of limitation in such like matters which will be discussed in detail hereinafter. A similar provision, rather in more clear words, is provided in section 4 of the Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935 ("Act VI of 1935").

9. A look at the above quoted provisions of law would simplify the question/controversy, the parties of this lis are facing. There is no dispute between the parties regarding their inter se relationship and similarly the termination of limited interest of Mst. Noor Bibi, as evident from the record and the same is not disputed between the parties that after the death of last full owner, Imam Din in the year 1922, his property devolved twice as a limited estate, initially upon his widow Mst. Amina Bibi and after her re-marriage, upon his daughter Mst. Noor Bibi till her marriage. Mutation of widow Mst. Amina Bibi is available at page-94 of the paperbook and entries in its last column reflect that the widow at the time of death of her husband was pregnant which means the daughter (Mst. Noor Bibi) of Imam Din was born after the death of her father. This very mutation was attested by Karim Bakhsh, as Numberdar of the village). Mst. Noor Bibi, as per mutation entries of 1934 at pages-92 and 93 of the paperbook, succeeded to get limited interest in the property left by her father till her marriage. Again, it has undisputedly come on the record that she got married in the year 1944/45. Her marriage resulted into termination of her limited interest in the property. This termination, no doubt, was by operation of law. Here a big question mark would be as to whether further non-compliance of said termination by the concerned (the revenue authorities) would adversely affect the rights of all those who have suffered due to said non-compliance. The answer to this question would be a big "No". This would also get further explanation hereinafter.

10. The other important and legal aspect which requires consideration is that both the learned counsel for the parties, during arguments, agreed to the proposition that the provisions of section 2-A of the Act V of 1962 are not applicable in the facts and circumstances of the case. In this case, the widow of the last full owner Imam Din succeeded her late husband as a limited owner till her death or re-marriage and similarly the daughter of the Imam Din acquired the same limited interest in the property on similar terms from her mother Mst. Amina Bibi. When Mst. Noor Bibi got married in the year 1944/45 (as per available record and not disputed by anyone) her limited interest in the landed property was terminated and as per law the property has to revert back to actual legal heirs (lineals and collaterals) but such termination, as per record, was not incorporated in the relevant record and till filing of the suit she remained recorded as full owner (in the course of time, her limited status was changed to full owner but no explanation in this regard is available on the record) which even otherwise is against the law. According to the above quoted provisions, on the termination of the limited interest of Mst. Noor Bibi, the property is to be considered as the ownership of the last full owner Imam Din and should have to devolve upon his Shari heirs alive at the time of his death and if anyone of such heirs has died prior to the termination of the limited estate his heirs shall also get the share to which their predecessor would have been entitled if alive. Accordingly, the limited owners were also held entitled to their Shari share whether alive or dead. Reference in this regard may be made to SUBA through his L.Rs. v. Mst. Fatima Bibi (1992 SCMR 1721). Thus, Mst. Noor Bibi is entitled only to the extent of 1/2 share as legal heir of her father (the last full owner) and a share from her mother probably that would also be 1/2 from her 1/8 share. As such termination completed in the year 1944/45 prior to the Act IX of 1948 and the succession as per Muslim Personal Law stood completed under section 3 of the Act IX of 1948. Thereafter, nothing left to be implemented. So, the provision of section 2-A and other provision of Act V of 1962 are not applicable to the facts and circumstances of this case.

11. Moreover, the marriage of Mst. Noor Bibi, resulted into termination of the limited interest in the property held by her and as per the provisions of section 3 of the Act of 1948, the matter reverted back to the year 1922, the year when the last full owner Imam Din died. All the persons entitled to succeed the last full owner (the sharers, residuaris, distant, kindred etc.) would succeed, as per their respective share, as if the last full owner died during the application of Muslim Personal Law "Shariat". The proviso to section 3 also clearly speaks of the females retaining the property with limited interest. They would also be entitled to get as per their ordained shares in the sharia. The application of above provisions of law would paint a picture showing Mst. Amina Bibi, the widow of Imam Din to get 1/8 share, Mst. Noor Bibi, the daughter, defendant No.1, was entitled to get 4/8 (1/2) (as she was the only daughter) and the remainder 3/8 would go to the brothers Karim Bakh (predecessor of plaintiffs) and Rahim Bakhsh (predecessor of defendants Nos.2 to 6) as residuaries. Besides the above, the defendant No.1 (mother of appellants) would also inherit her mother Mst. Amina Bibi as a sharer.

12. Now comes the question of limitation which was very forcefully argued by the appellants. The acquisition of a limited interest and then its termination makes the actual legal heirs to inherit under the Muslim Personal Law and provision of section 3 of the Act IX of 1948 gives inbuilt/implied retrospective effect for such inheritance. All the persons entitled to inherit the predecessor (who were alive at the time of death of the predecessor) become the owners to the extent of their respective shares from the date of his death as discussed above. It is also the established law that inheritance under Muslim Personal Law/ Muhammadan Law opens just after the death of a Muslim. All the legal heirs, lineal and collaterals inherit/acquire to the extent of their respective shares just after the death of a Muslim. They all by such inheritance/acquisition become co-sharer/co-owner in the estate left by the deceased Muslim under sharia. The shares of each heir/residuary are fixed and determined in sharia. Our law so far developed in the country is that every co-sharer/co-owner is presumed to be in possession of every inch of the joint property unless the same is partitioned. Reference may be made to the cases of Shabla v. Ms. Jahan Afroz Khilat (2020 SCMR 352), Ghulam Sarwar (Deceased) v. Ghulam Sakina (2019 SCMR 567), Ahmad Khan v. Abdur Rehman (2009 SCMR 191), Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah (2007 SCMR 1884) and Mst. Reshman Bibi v. Amir (2004 SCMR 392). The law of the land further goes to the extent that no limitation runs against a co-sharer/co-owner. Reference here may also be made to the cases Khan Muhammad v. Mst. Khatoon Bibi (2017 SCMR 1476), Mahmood Shah v. Syed Khalid Hussain Shah and others (2015 SCMR 869), Muhammad Anwar and 2 others v. Khuda Yar and 25 others (2008 SCMR 905), Mst. Suban v. Allah Ditta and others (2007 SCMR 635), Riaz Ahmad and 2 others v. Additional District Judge and 2 others (1999 SCMR 1328) and Ghulam Ali and 2 others v. Mst. Ghulam Samar Naqvi (PLD 1990 SC 1). Whenever the rights of a co-sharer are infringed, by way of wrong entries or by any other means, he can seek the redressal by way of a suit for declaration under section 42 of the Specific Relief Act, 1877. When no limitation runs against a co-sharer/co-owner and the attestation of a mutation also established law of the land, is just for updating the revenue record and for the fiscal purposes creating no title nor is considered as a document of title then no question of limitation arises against co-sharers. The question of limitation in the matters of inheritance, with respect, is being misunderstood for quite some time. When a legal heir becomes owner and at the same time a co-sharer in the property left by a deceased Muslim and attestation of mutation in this regard is also immaterial and is meant for very limited purposes and besides the above, possession of a co-sharer is considered as a possession on behalf of all other co-sharers then it is, at least, beyond our consumption and understanding of law of inheritance and the law of limitation as to how the law of limitation can be made applicable for disinheritance of a legally entitled person who becomes owner/co-sharer by operation of law. As per Para 7.1.(v) of the Land Record Manual, recording/entering of a mutation of inheritance is the job of local revenue officials but with the passage of time it has been left to the legal heirs and the parties concerned. Any delay for asking for correction of entries in the record of rights is then attributed to the parties which is not appropriate and against the law. For convenience, the same is reproduced as under:- " ........ (v) It shall not be difficult for a Patwari (resident official) to learn in normal course of the occurrence of death of land-owner in his small circle. Mutations of inheritance in such case can, therefore, be entered by the Patwari suo motu on the basis of his personal knowledge without waiting for any formal intimation from any quarter. In further failure to enter a mutation of inheritance on the death of a resident land owner shall be construed to reflect adversely on the vigilance and awareness of Patwari and shall be taken due notice of. ......."

13. In the facts and circumstances of the present case, the predecessor of plaintiffs and the defendants Nos.2 to 6 (now all respondents) became owners and co-sharers being residuaries to the last full owner just after the termination of the limited estate held by the predecessor of the appellants, Mst. Noor Bibi, in the year 1944/45 and this termination took the matter back to the year 1922 (the year of death of predecessor Imam Din) as per section 3 of the Act of 1948, as discussed above in detail, which made them co -sharers/co-owners since 1922. Whether non-attestation of mutation in their favour by the local revenue officials would make them to lose their legal and sharai right when they were also in possession of their property. As per un-rebutted evidence on the record that after termination of limited estate, they, by operation of law, became owners in possession of the property. After termination of limited estate, noted above, they lived upto 1967 and 1968 with the impression that they after such termination became owners (this has been alleged in pleadings as well as in evidence) but the revenue record was not updated by the revenue officials and the wrong entries of the revenue record continued in the name of Mst. Noor Bibi showing her to be owner beyond her legal and sharai entitlement (now she is recorded as full owner to the extent of 1/3 share, held by her father). Whether such wrong entries would legitimize her excessive land beyond her entitlement? We can have a look from just another angle. All the parties are co-sharers since the demise of their propositus and are in actual physical possession of their joint property as per the latest entries of record of rights available on the record. One co-sharer is the protector of possession of all the others, as per established law of the land then how the question of limitation would come into play against the co-sharers. The law of the land, developed so far, is that every wrong entry in the record of rights gives fresh cause of action if the parties are in possession. Here in this case, all the co-sharers are in physical possession from day one what to talk of their symbolic possession. A co-sharer with symbolic possession even can safeguard his rights. Reliance in this regard can well be placed on the cases of Faqir Ali and others v. Sakina Bibi and others (PLD 2022 SC 85), Khan Muhammad through L.Rs. and others v. Mst. Khatoon Bibi and others (2017 SCMR 1476) and Mst. Gohar Khanum and others v. Mst. Jamila Jan and others (2014 SCMR 801). So, we are of the view that all the three Courts below have rightly decided the question of limitation in favour of the plaintiff/ respondents. Since the question of limitation was argued with great vehemence, so, an attempt to explain the same in detail has been made. The most of the judgments of this Court through which clog of limitation on inheritance matters has been imposed and the law of limitation have been made applicable are not regarding simple claim of inheritance. We have attempted to go through many of such judgments on this issue which, in our opinion, are distinguishable. The main distinction that requires to be kept in mind is that the case in hand revolves around the question of inheritance alone and for that matter a lengthy discussion has been made above but the judgments being referred to and distinguished almost involve the issues of transfer of lands by way of sale, gift etc. by the predecessors themselves in their lifetimes and not challenged or questioned by them. The heirs, feeling themselves aggrieved, challenged the same by claiming their right of inheritance after a considerable delay and such cases were dismissed on the question of limitation for want of proof and justifying the delay. Yes, in such like cases, we can agree with the ratio laid down in the case of Mst. Grana through legal heirs and others v. Sahib Kamal Bibi (PLD 2014 SC 167) that law of limitation involving matter of inheritance cannot be ignored altogether but the narrow line of distinction is that where the predecessor/propositus has transferred his property by way of sale, gift etc. in his lifetime and after his death, the legal heirs claiming right of inheritance regarding said property after lapse of considerable time by questioning such transfer cannot be ignored lightly. For convenience, the observations made in the above mentioned case is as under:- "

6. It appears that in a suit which involves some element of inheritance the Courts are generally quick to declare that the law of limitation would not be attracted. It is not in all cases of inheritance that the question of limitation becomes irrelevant. Even in Ghulam Ali's case the Court recognized that there could be exceptional circumstances wherein a suit based on inheritance issue of limitation may become relevant..."

14. Perusal of this case too would reflect that certain transfers through registered sale deed and mutation were challenged after a lapse of considerable delay and right of inheritance was claimed. Similar is the case of Mst. Phaphan through Legal Heirs v. Muhammad Bakhsh and others (2005 SCMR 1278). Facts and circumstances of the case as reflected in the judgment justify the application of Article 120 of the Limitation Act, 1908. The case of Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs (PLD 2011 SC 657) is also distinguishable. The case of Atta Muhammad v. Maula Bakhsh and others (2007 SCMR 1446) also cannot be made basis for invoking the provisions of Limitation Act in the case in hand. The facts narrated in the judgment rendered in the case of Muhammad Rustam v. Mst. Makhan Jan (2013 SCMR 299) would justify the question of limitation but cannot be compared with the facts and circumstances of the present case. So, in our view, looking each and every case involving the question of inheritance with a yardstick of limitation, simply for the reason of delay, would not be appropriate as vested rights of people cannot be tackled so lightly. Each and every case requires to be dealt with according to its own facts and circumstances.

15. This would also not be out of context to discuss that an order of this Court dated 14.11.2017 would also reflect that an attempt by the learned counsel for the appellants was made to confuse the things by arguing that the controversy in hand, in fact, relates to matters which falls within the purview of the Colonization of Government Lands (Punjab) Act, 1912 ("the Act of 1912") and as such the Civil Court lacks jurisdiction to entertain and adjudicate the present lis. It has been noted with great concerns that this was no body's case from day one. So, making altogether a new case that too, at this stage, is not permissible under the law. This is a simple case of inheritance of private land of the parties who being the owners of the same from day one; thus, the Civil Court has had the jurisdiction in the matter in hand. Moreover, neither was it a government land nor was any question of tenancy or lease involved in the matter. So the provisions of sections 21(b) and 36 of the Act of 1912 are not applicable in this case, as argued by the learned senior counsel for the appellants.

16. For what has been discussed above, the appeal in hand is partially allowed and the judgments and decrees of the learned Courts below are modified accordingly. The mother of appellants namely Mst. Noor Bibi becomes entitled to inherit her 1/2 share from her father Imam Din (the last full owner) plus share from her mother (as discussed above) whereas the respondents (both plaintiffs and defendants Nos.2 to 6) would be entitled to inherit their predecessors Karim Bakhsh and Rahim Bakhsh to the extent of 3/8 shares equally from Imam Din (the last full owner). Decree be drawn up accordingly.

17. Before parting with the judgment, it has been observed with a great concern that the copies of the record annexed with the petitions do not reflect the exhibit marks, as if attached or brought on the record for the first time. The law is very much clear in this regard that fresh record and new documents cannot be attached/brought on the record except in accordance with the procedure prescribed under Rule 4 of Order XXXIII of the Supreme Court Rules, 1980. Since none of the parties disputed the authenticity of these documents, so we looked into and considered the same. The office however should be vigilant in future and should not accept such like record. MWA/F-9/SC Order accordingly.

2022 S C M R 1660 [Supreme Court of Pakistan] Present: Sardar Tariq Masood, Mazhar Alam Khan Miankhel and Jamal Khan Mandokhail, JJ HUSSAIN KHAN

Appellant versus The STATE

Respondent Criminal Appeal No. 670 of 2020, decided on 26th April, 2022. (On appeal against the judgment dated 24.02.2016 passed by the Peshawar High Court, Peshawar in Crl. A. No. 507-P of 2013) Control of Narcotic Substances Act (XXV of 1997)

S. 9(c)

Possession of narcotics

Reappraisal of evidence

Safe custody and safe transmission of samples to the Forensic Science Laboratory not established

Benefit of doubt

Recovery was effected on 6-9-2012 whereas sample parcels were received in the office of chemical examiner on 12-9-2012 without any plausible explanation as to where the samples remained during such period

Safe custody and safe transmission of the sealed sample parcels had also not been established by the prosecution as Moharrar, who kept the sample parcel in the Malkhana and the concerned Constable, who delivered the same parcel to the office of Forensic Science Laboratory were not produced by the prosecution

Due to such defect on the part of the prosecution it could not be held with any degree of certainty that the prosecution had succeeded in establishing its case against the accused person beyond any reasonable doubt

Appeal was allowed, and accused was acquitted of the charge by extending benefit of doubt to him. [p. 1661] A Qaiser Khan v. The State through Advocate-General, Khyber Pakhtunkhwa Peshawar 2021 SCMR 363; Mst. Razia Sultana v. The State and another 2019 SCMR 1300; The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039; Ikramullah and others v. The State 2015 SCMR 1002 and Amjad Ali v. The State 2012 SCMR 577 ref. Syeda B.H. Shah, Advocate Supreme Court (at State expense) and Arshad Hussain Yousafzai, Advocate Supreme Court for Appellant. Zahid Yousaf Qureshi, Additional A.G. Khyber Pakhtunkhwa for the State. Date of hearing: 26th April, 2022. JUDGMENT SARDAR TARIQ MASOOD, J.--Through instant appeal by leave of the Court, the appellant has impugned the judgment dated 24.02.2016 of the Peshawar High Court, Peshawar, whereby appeal filed by him was dismissed and his conviction and sentence awarded by the trial Court under section 9(c) of the Control of Narcotic Substances Act, I997 ('Act, 1997'), was maintained.

2. Precisely, facts of the case are that the appellant faced trial in case FIR No.1147/2012 registered on 06.09.2012 at Police Station Charsadda, under section 9(c) of the Act. On conclusion of trial, he was convicted under section 9(c) of the Act and sentenced to life imprisonment with a fine of Rs.3,00,000/- or in default thereof to further undergo six months' simple imprisonment. Benefit of section 382-B of the Code of Criminal Procedure, 1898 was also extended to him. Appeal filed by him before the Peshawar High Court, Peshawar was dismissed. Hence, this appeal by leave of the Court granted on 11.11.2020 to re-appraise the evidence.

3. Heard and perused the record. It has been observed by us that recovery was effected on 06.09.2012 whereas sample parcels were received in the office of chemical examiner on 12.09.2012 without any plausible explanation as to where remained these sample parcels from 06.09.2012 to 12.09.2012. The safe custody and safe transmission of the sealed sample parcels have also not been established by the prosecution as Moharrar, who kept the sample parcel in the Malkhana and the concerned Constable (FC No.346), who delivered the same parcel to the office of Justice through Science Forensic Science Laboratory, Police Investigation, Khyber Pakhtunkhwa, Peshawar, were not produced by the prosecution. This Court in the cases of Qaiser Khan v. The State through Advocate-General, Khyber Pakhtunkhwa Peshawar (2021 SCMR 363), Mst. Razia Sultana v. The State and another (2019 SCMR 1300), The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039), Ikramullah and others v. The State (2015 SCMR 1002) and Amjad Ali v. The State (2012 SCMR 577) has held that in a case containing the above mentioned defect on the part of the prosecution it cannot be held with any degree of certainty that the prosecution had succeeded in establishing its case against an accused person beyond any reasonable doubt.

4. For the forgoing reasons, this appeal is allowed. The impugned judgment is set aside and the appellant Hussain Khan, while giving him the benefit of doubt, is acquitted of his charge in the instant case. He be released from jail forthwith, if not required to be detained in connection with any other case. MWA/H-7/SC Appeal allowed.

2022 S C M R 1662 [Supreme Court of Pakistan] Present: Mushir Alam, Mazhar Alam Khan Miankhel and Munib Akhtar, JJ TAJ MUHAMMAD

Petitioner versus KHALID MEHMOOD alias KHALID NAWAZ and others

Respondents Criminal Petition No. 342 of 2018, decided on 12th September, 2018.* (On appeal from the judgment dated 12.2.2018 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Crl. Rev. No. 173 of 2017) Penal Code (XLV of 1860)

Ss. 302(b) & 34

Juvenile Justice System Ordinance (XXII of 2000) S. 7 [since repealed]

Qatl-i-amd, common intention

Reappraisal of evidence

No documentary evidence presented for plea of juvenility

Accused neither disclosed his actual date of birth in his application nor filed any documentary piece of evidence like entry in the birth register or any school certificate showing his date of birth; he even didn't annex Form-B' of NADRA showing the entire data of his family including the age of every family member

As per opinion of the medical board based on the ossification test the probable age of the accused was declared between 20 to 25 years

Accused never raised any plea of juvenility during investigation of the case nor at the time of framing of charge before the Trial Court but it was raised belatedly during the trial of the case

Petition for leave to appeal was converted into appeal and allowed, and the order of the Trial Court was restored, whereby plea of juvenility raised by the accused was dismissed. [p. 1664] A, B & C Liaq Khan Swati, Advocate Supreme Court for Petitioner. Muhammad Ikhlaque Awan, Advocate Supreme Court for Respondents. Ch. Waheed Khan, Additional P.G. Punjab for the State. Date of hearing: 12th September, 2018. JUDGMENT MAZHAR ALAM KHAN MIANKHEL, J.

Khalid Mehmood alias Khalid Nawaz respondent No.1, the accused, was booked in case FIR No.73 dated 26.4.2015 registered under sections 302/34, P.P.C. at Police Station City-Talagang District Chakwal and during trial of the case, the accused-respondent No.1 for the first time on 25.11.2016 came forward with a plea that he being a child within the meaning of section 2(b) of the Juvenile Justice System Ordinance, 2000 (the Ordinance), his case be sent for trial before a Juvenile Court established under the Ordinance. Initially this application was dismissed by the trial court but the High Court in a Criminal Revision No.59/2017 on 22.5.2017 remitted back the matter to the trial court for reconsideration of the issue within the meaning of section 7 of the Ordinance. This plea of the respondent No.1-accused after proper inquiry, was again turned down by the trial court vide its order dated 5.7.2017 but the High Court in a Criminal Revision No.173/2017 filed by respondent No.1-accused, while allowing the same vide its judgment dated 12.02.2018 directed his trial before a Juvenile Court. The petitioner being complainant of the above noted sessions case, feeling himself aggrieved has questioned the judgment dated 12.2.2013 for grant of leave to appeal.

2. Learned counsel for the parties and learned Additional Prosecutor General, Punjab were heard and record of the case was perused. Perusal of the record would reveal that instant case was registered on 26.4.2015 against respondent No.1 and his co-accused Shah Nawaz, who being his father and after recording of statement of PW-1 on 25.11.2016, respondent No.1 for the first time filed an application for determination of his age under section 7 of the Ordinance. He neither disclosed his actual date of birth in his application nor filed any documentary piece of evidence like entry in the birth register or any school certificate showing his date of birth. He even didn't annex 'Form-B' of NADRA showing the entire data of his family including the age of every family member. Since the application for determination of his age was filed and under section 7 of the Ordinance the trial court was under a legal obligation to record its findings in this regard after proper inquiry; the trial court in absence of any documentary evidence as stated above, ordered the ossification test of the accused-respondent No.1 through a medical board. As per opinion of the medical board dated 15.12.2016 the probable age of the respondent No.1-accused was declared between 20 to 25 years. In the light of said report the probable age of respondent No.1-accused calculated by the trial court at the time of occurrence was between 18 years 4 months 11 days, and 23 years 4 months 11 days. Perusal of the report would reflect that it was based upon the opinion of members of the medical board, though based on some scientific footings but under the law cannot be considered as a conclusive proof of age of respondent No.1 and many a times such like opinions are misleading. A reference in this regard can also be made to a case of Intiazar Hussain v. Hamza Ameer and others (2017 SCMR 633). The settled law of the land in this regard is that it was for the respondent No.1 to prove the factum of his age as alleged/asserted by him through a positive evidence otherwise he cannot claim any benefit of this benevolent legislation. Such a claim is not more than an assertion of a fact, burden of proof of which heavily lies upon the person alleging/asserting the same. A reference in this regard can be made to the cases Ziaullah v. Najeebullah (PLD 2003 SC 656), Tauqeer Ahmed Khan v. Zaheer Ahmad (2009 SCMR 420), Muhammad Raheel alias Shafique v. The State (PLD 2015 SC 145). The record of the case would reflect that respondent No.1 has just claimed to be a child as defined in the Ordinance and has not given any of his date of birth or produced any documentary evidence reflecting his date of birth which might have helped the court in calculating his date of birth. He never raised any such plea during investigation of the above noted case nor at the time of framing of charge before the trial court but it was during the trial of the said case. There was nothing before the trial court to make a fair opinion and give its findings in this matter except the report of medical board which is based on ossification test. This alone in no way can be considered as a conclusive proof of age of the respondent No.1 especially when on the face of it he has tried to conceal the reliable documentary evidence as discussed above which reflects his conduct. We don't want to comment upon merits of the case lest it may prejudice the mind of the trial court but would say that this was nothing less than an effort by the accused-respondent No.1 which can only be termed as an afterthought to get the benefit of law but with malice which cannot be permitted. So in this view of the matter, this petition is converted into appeal and allowed and judgment of the High Court is set aside and that of the trial court i.e. Additional Sessions Judge, Talagang, district Chakwal dated 5.7.2017 is restored and maintained. Short order of even date is reproduced herein-below for ready reference:- "Heard the counsel; perused the record. For the reasons to follow, this petition is converted into appeal and allowed. The impugned judgment is set aside and that of the learned Additional Sessions Judge, Talagang dated 5.7.2017 is maintained". MWA/T-4/SC Appeal allowed.

2022 S C M R 1665 [Supreme Court of Pakistan] Present: Sajjad Ali Shah and Amin-ud-Din Khan, JJ ABDUL KHALIQ (DECEASED) through LRs

Appellants versus FAZALUR REHMAN and others

Respondents Civil Appeals Nos. 53 and 54 of 2015, decided on 30th June, 2022. (Against the order dated 26.12.2000 passed by the Peshawar High Court in C.R. No. 41 of 1995) (a) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)

Ss. 3 & 5

Muslim female holding limited estate

Devolution of property on the termination of life estate

Scope

Even where the last full owner had died prior to the commencement of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 ('Act of 1962'), the limited estate held by a Muslim female in relation to the said estate would be terminated and upon such termination, those persons would be entitled to the estate as would have been entitled under Muslim Personal Law (Shariat) upon the death of the last full owner and if any such heir had died in the meantime, his/her share would devolve in accordance with Shariah on such persons who would have succeeded him/her, if he/she had died immediately after the termination of the life estate

In order to provide certainty, the last full owner as provided in section 5 of the Act of 1962, appears to be the full owner whereafter the property does not devolve through inheritance. [pp. 1670, 1671] A & B (b) Islamic law

Inheritance

Estate of issue less brother

Full sister, share of

In the absence of a child, a full sister is entitled to inherit 1/2 share in the property of her deceased Muslim brother. [p. 1672] C Saadullah and others v. Mst. Gulbanda and others 2014 SCMR 1205 ref. (c) Islamic law

Inheritance

Estate of issue less Muslim

Residuaries

Full sister and descendants of true grandfather as competing residuaries

Perusal of para 65 of Principles of Mohammadan Law by D.F. Mullah and the Table of Residuaries annexed thereto showed that full sister is placed higher in the Table of Residuaries at serial No.6, whereas, descendants of the true grandfather how-high-so-ever are placed at serial No. 13 and below and thus, would not be entitled to inherit after being excluded by the full sister placed higher to them. [p. 1672] D Saadullah and others v. Mst. Gulbanda and others 2014 SCMR 1205; Muhammad Sharif v. Niamat Bibi 2021 SCMR 1355 and Para 65 of Principles of Mohammadan Law by D.F. Mullah ref. (d) Islamic law

Inheritance

Legal heirs as co-owners

At the time the inheritance of a deceased Muslim opens, all the entitled legal heirs become owners to the extent of their shares there and then, therefore, sanction of mutation, issuance of succession certificate etc. are procedural matters regulated by procedural laws just to make records and for fiscal purposes. [p. 1675] E Khan Muhammad through LRs and others v. Mst. Khatoon Bibi and others 2017 SCMR 1476 and Mahmood Shah v. Khalid Hussain Shah 2015 SCMR 869 ref. Tariq Mahmood, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in both cases). Muhammad Munir Paracha, Advocate Supreme Court along with Zulfiqar Khalid Maluka, Advocate Supreme Court for Respondents Nos. (1(i-iii), 5(Lrs), 6-11, 12(Lrs), 18(Lrs), 20-23, 33(Lrs) and 35(Lrs)) (in C.A. No. 54 of 2015). Muhammad Munir Paracha, Advocate Supreme Court along with Zulfiqar Khalid Maluka, Advocate Supreme Court for Respondents Nos. (1-12, 19-23, 34-36) (in C.A. No. 54 of 2015). Nemo for other Respondents. Date of hearing: 8th February, 2022. JUDGMENT SAJJAD ALI SHAH, J.

Leave was granted in these cases vide our order dated 21.1.2015 to consider whether the impugned judgment of the Peshawar High Court was inconsonance with the evidence led by the parties and the applicable law to the case.

2. The litigation in these cases is not only very old but has a very chequered background. The facts as pleaded and evident from the record arc that the property/subject matter admittedly was owned by one Naaju who died somewhere around 1906 leaving behind one son by the name of Abdul Ghafoor and a daughter Mst. Roshnae. In accordance with the prevalent custom, the entire property went to Abdul Ghafaar as the only son to the exclusion of Mst. Roshnae, the daughter, Abdul Ghafoor died issueless in the year 1921 and again, in accordance with the customary law prevalent at the relevant time, the entire property went to Mst. Roshnae. It appears that Mst. Roshnae was a spinster and on 28.4.1964 gifted the entire property in favour of Abdul Khaliq etc., the appellants. The record further discloses that after the death of Mst. Roshnae, the respondents herein on 23.12.1978 claiming to be collaterals, filed a suit for possession to claim their Sharai share of inheritance by asserting that Mst. Roshnae was a limited owner and could not have alienated the whole property through the registered gift deed being against the principles of Shariah.

3. The appellants after having been served, filed their contesting written statement and the trial Court after allowing the parties to adduce their respective evidence, dismissed the suit on merits as well as being barred by time. The respondents being aggrieved with the judgment of the trial Court filed an appeal before the District Judge Mandan who, after hearing the parties, vide its judgment and decree dated 8.11.1994 held that the respondents were entitled as collaterals to the extent of 1/3rd share in the subject property. The judgment of the appellate Court was again challenged by both the parties before the Peshawar High Court by filing two separate revision petitions and the High Court, after hearing the parties, dismissed the revision filed by the appellants and partially allowed the revision filed by the respondents by modifying the judgment of the appellate Court and holding that the respondents were entitled to 3/4th share instead of 1/3rd as was held by the appellate Court, giving rise to the instant appeals.

4. The matter does not end here, these appeals were earlier decided by this Court vide its judgment dated 12.12.2002 modifying the judgment of the High Court by holding both the appellant and respondents entitled to equal shares in the property left by Abdul Ghafoor. The appellants against such judgment sought a review which was allowed by this Court vide its order dated 19.7.2004 and the suit of the respondents was dismissed. The record further reflects that some of the legal heirs/collaterals filed an application under section 12(2), C.P.C. which was ultimately allowed vide order dated 30.9.2011 and while setting aside all the orders, the review petitions were directed to be heard afresh. The review petitions were taken up for hearing on 13.3.2014 and vide order of the same day, were allowed by setting aside the judgment dated 12.12.2002 directing the re-hearing of the petitions which ultimately were converted into appeals by this Court vide order dated 21.1.2015 and are being decided through this judgment.

5. Learned counsel for the appellants made two-fold submissions; firstly, that the respondents are distant kindred and in presence of Mst. Roshnae, the full sister of Abdul Ghafoor are not entitled to inheritance and; secondly, that if they are collaterals and are held as residuaries still they are not entitled to any share as the sister being a superior residuary would eliminate the inferior. To support his submissions, reference was made to the Table of Residuaries annexed to paras 65 of 'Principles of Moharnmadan Law' by D.F. Mullah to show that the full sister stands at Serial No.6 of the Table whereas descendants of true grandfather how-high- so-ever stand at Serial No.13 and consequently, submitted that the full sister would exclude descendants of the true grandfather. Reliance was also placed on the judgments of this Court in the cases of Saadullah and others v. Mst. Gulbanda and others (2014 SCMR 1205) and Muhammad Sharif v. Niamat Bibi (2021 SCMR 1355). It was next contended that even if they are held as collaterals having a superior right as residuaries than the full sister, still they would be entitled only to 1/3rd share in the property because on demise of Naaju, Mst. Roshnae would have got 1/3rd share as daughter whereas Abdul Ghafoor would have gotten 2/3rd of inheritance as son and upon the demise of Abdul Ghafoor, Mst. Roshnae again as the only sister would have received a share making her share as 2/3rd leaving 1/3rd for the collaterals. To support his submission, it was contended that The West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (hereinafter referred to as the "Act of 1962") had a retrospective application and would have application from the date Nanju died, reliance was placed on the judgment of this Court in the case of Muzaffar Khan v. Roshan Jan (PLD 1984 SC 394) and Faqir Ahmed Khan v. Riaz Ahmad (2020 SCMR 346).

6. On the other hand, the learned counsel for the respondents argued that Mst. Roshnae held the estate as 'limited owner' under customary law and after termination of said estate, the property was to devolve upon the legal heirs of the last full owner i.e. Abdul Ghafoor in accordance with Shariah, which included the plaintiffs/respondents as his collaterals. It was argued that section 7 of the Act of 1962 repealed The NWFP Personal Law (Shariat) Application Act, 1935 (hereinafter referred to as the "NWFP Act of 1935") and through section 2 of The West Pakistan Muslim Personal Law (Shariat) Application (Amendment) Act, 1964 (hereinafter referred to as the "Amendment Act of 1964"); subsection (2) of section 7 of the Act of 1962 was repealed by virtue of which the Act of 1962 would be applicable to cases even where the death of the last full owner had occurred before the commencement of the Act of 1962. Therefore, the Act of 1962 would be applicable to the case at hand and consequently, through the application of section 3, limited estates in respect of immovable property held by Muslim females under customary law would stand terminated and by virtue of section 5, Muslim Personal Law (Shariah) would be applicable and the estate would devolve upon such persons who would have been entitled to succeed upon the death of the last full owner. Hence, it was argued that upon the death of Abdul Ghafoor, the respondents/plaintiffs would be entitled to a share in his estate under Muslim Personal Law (Shariah) as residuaries being descendants of the true grandfather how-high-so-ever. Reliance was placed on para 65 Mohammadan Law by D.F. Mulla and the judgment of this Court in the case of Waris Ali and others v. Rasoolan Bibi (PLD 2014 SC 779).

7. We have heard the learned counsel for the parties and have minutely perused the record. It appears from the record that after the death of Naaju, the property devolved upon Abdul Ghafoor, his son, to the exclusion of his daughter according to the customary law prevalent at that time. After the death of Abdul Ghafoor, who died issueless, the property devolved upon Mst. Roshnae i.e. his sister as 'limited owner' also in accordance with customary law. The NWFP Act of 1935 did not terminate the limited estates of Muslim females and even though through section 7 of the Act of 1962 the NWFP Act of 1935 was repealed, nonetheless, sub section (2) of section 7 of the Act of 1962 provided that in such cases where the death of the last MI owner had occurred before the commencement of the Act of 1962, the Act of 1962 will not apply and the cases will be governed by the Acts repealed in subsection (1) of section 7 of the Act of 1962. For reference, section 7 of the Act of 1962 is produced below:

7. Repeal and Savings.

(1) The following enactments are hereby repealed: (a) .......... (b) .......... (c) .......... (d) The NWFP Muslim Personal Law (Shariat) Application Act, 1935; (e) .......... (f) .......... (g) .......... (h) .......... (2) This Act shall not apply to cases where the death of the last full owner or the termination of the life estate or the death of the legatee-in-enjoyment, as the case may be, has occurred before the commencement thereof and all such cases shall be governed by the Acts repealed in subsection (1) according to the territories in which they were operative.

8. However, thereafter, through section 2 of the Amendment Act of 1964 which was enacted on 15.4.1964, subsection (2) of section 7 of the Act of 1962 was repealed meaning thereby that even if the last full owner had died before the commencement of the Act of 1962, the Act of 1962 would still apply to such cases. For reference, section 2 of the Amendment Act of 1961 is reproduced below:

2. Amendment of Section 7 of Act V of 1962.

In section 7 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1952, subsection (2) shall be omitted.

9. In such view of the matter and through the cumulative effect of sections 3 and 5 of the Act of 1962, even where the last full owner had died prior to the commencement of the Act of 1962, the limited estate held by a Muslim female in relation to the said estate would now be terminated and upon such termination, those persons would be entitled to the estate as would have been entitled under Muslim Personal Law (Shariah) upon the death of the last full owner and if any such heir had died in the meantime, his/her share would devolve in accordance with Shariah on such persons who would have succeeded him/her if he/she had died immediately after the termination of the life estate. It was further stipulated in the proviso to section 5 of the Act of 1962 that the Muslim female holding the limited estate under customary law shall be deemed to be entitled to her share under Muslim Personal Law (Shariah) in the estate of the last full owner and the same shall devolve on her. For reference, sections 3 and 5 of the Act of 1962 are reproduced below:

3. Termination of Limited Estates under Customary Law.

The limited estates in respect of immovable property held by Muslim females under the Customary Law are hereby terminated: Provided that nothing herein contained shall apply to any such estate saved by any enactment, repealed by this Act, and the estates so excepted shall continue to be governed by that enactment, not withstanding its repeal by this Act.

5. Devolution of Property on the Termination of Life Estate and Certain Wills.

The life estate terminated under section 3 or the property in respect of which the further operation of will has ceased under section 4 shall devolve upon such persons as would have been entitled to succeed under the Muslim Personal Law (Shariat) upon the death of the last full owner or the testator as though he had died intestate; and if any such heir has died in the meantime, his share shod devolve in accordance with Shariat on such persons as would have succeeded him, if he had died immediately after the termination of the life estate or the death of the said legatee: Provided that the share to which a Muslim female holding limited estate under Customary Law would have been entitled under the Muslim Personal Law (Shariat) upon the death of the last full owner shall devolve on her.

10. In order to provide certainty, the 'last full owner' as provided in section 5 of the Act of 1962, to our minds, appears to be the full owner whereafter the property did not devolve through inheritance, which in this case would be Abdul Ghafoor, Any other meaning to the word last full owner would not only he against the spirit of section 5 but would also result in uncertainty by delving into an uncertain period in the past, In the instant case, it is an admitted position that Abdul Ghafoor, the last full owner, died issueless in the year 1921 and the property devolved on Mst. Roshnae as limited owner in accordance with customary law. Therefore, upon the application of the Act of 1962 pursuant to the Amendment Act of 1964, the limited estate held by Mst. Roshnae would be deemed to be terminated and those persons would be entitled to succeed who were entitled to inherit from the estate of the last full owner i.e. Abdul Ghafoor in accordance with Muslim Personal Law (Shariah), Hence, the inheritance of Abdul Ghafoor would be deemed to have opened at that time and was to devolve amongst such persons entitled to inherit from his estate under Shariah.

11. In such view of the matter and upon the opening of the inheritance of the deceased Abdul Ghafoor, Mst. Roshnae would inherit 1/2 share in the estate of Abdul Ghafoor as a Quranic sharer, being his full sister. This has been ordained by the Holy Quran in Surah An-Nisa, Verse 176 wherein it has been explicitly ordained that in the absence of a child, a full sister is entitled to inherit 1/2 share in the property of the deceased Muslim. Reference may also be made to Saadullah's case (supra).

12. Now the only question that remains to be decided is whether Mst. Roshnae would also inherit the remaining half share as a residuary or would the same be inherited by the plaintiffs/respondents who also claim to be residuaries of Abdul Ghafoor as descendants of the true grandfather how-high-so-ever. In this regard, we have gone through the case law cited by the learned counsel for the parties and have perused para 65 of Principles of Mohammadan Law' by D.F. Mullah and the Table of Residuaries annexed thereto, as relied upon by both the parties, In our view, Mst. Roshnae would also inherit the remaining 1/2 share in the estate of Abdul Ghafoor as a residuary because a full sister is placed higher in the Table of Residuaries at serial No.6, whereas, descendants of the true grandfather how-high-so-ever are placed at serial No, 13 and below and thus, would not be entitled to inherit after being excluded by the full sister placed higher to them. For convenience, the Table of Residuaries annexed to Para 65 has been reproduced below: "TABLE OF RESIDUARIES IN ORDER OF SUCCESSION - Sunni Law

1. DESCENDANTS: (1) SON. Daughter takes as a residuary with the son, the son taking a double portion. (2) SON'S SON h.l.s.-the nearer in degree excluding the more remote. Two or more son's sons inherit in equal shares. Son's daughter h.l.s, takes as a residuary with an equal son's son...... II. ASCENDANTS: (3) FATHER. (4) TRUE GRANDFATHER h.h.s.- the nearer in degree excluding the more remote. III. DESCENDANTS OF FATHER (5) FULL BROTHER. FULL SISTER- takes as a residuary with full brother, the brother taking a double portion. (6) FULL SISTER- In default of full brother and the other residuaries above named, the full sister takes the residue if any...... (7) CONSANGUINE BROTHERS. CONSANGUINE SISTER.- takes a residuary with consanguine brother, the brother, taking a double portion. (8) CONSANGUINE SISTER.- In default of consanguine brother and the other residuaries above-named, the consanguine sister takes the residue,........ (9) FULL BROTHER'S SON. (10) CONSANGUINE BROTHER'S SON. (11) FULL BROTHER'S SON'S SON. (12) CONSANGUINE BROTHER'S SON'S SON. Then come remoter male descendants of No.11 and No.12, that is the son of No.11, then the son of No.12, then the son's son of No.11, then the son's son of No.12 and so on in like order. IV. DESCENDANTS OF TRUE GRANDFATHER h.h.s. (13) FULL PATERNAL UNCLE. (14) CONSANGUINE PATERNAL UNCLE. (15) FULL PATERNAL UNCLE'S SON. (16) CONSANGUINE PATERNAL UNCLE'S SON. (17) FULL PATERNAL UNCLE'S SON'S SON. (18) CONSANGUINE PATERNAL UNCLE'S SON'S SON. Then come remoter male descendants of Nos.17 and 18, in like order and manner as descendants of Nos.11 and

12. MALE DESCENDANTS OF MORE REMOTE TRUE GRANDFATHERS - in like order and manner as the deceased's paternal uncles and their sons and son's sons."

13. After minutely examining the Table of Residuaries, the submission of Mr. Paracha, learned ASC for the plaintiffs/respondents that, since the sister is a sharer in the estate of Abdul Ghafoor, therefore, she would not inherit as a residuary, does not appeal to us for the reason that the Table of Residuaries at serial No.6 provides that 'in default of a full brother and the other residuaries above named, the full sister takes the residuary if any...... The words "above named' are of great significance and negate the submission of the learned counsel by entitling a full sister to inherit as a residuary in absence of the residuaries detailed in serial No.1 to serial No.5, meaning thereby, that the residuaries placed below serial No. 6 would not inherit anything in the presence of full sister. Admittedly, the plaintiffs/respondents are placed much below i.e. under sub-heading No. IV as DESCENDANTS OF TRUE GRANDFATHER h.h.s' and therefore, would be excluded from inheriting the property as residuaries by the full sister which is placed above them. This was the view taken by this Court in a judgment delivered by a two-member Bench in Saadullah's case (supra), On the other hand, the plaintiffs/respondents rely on Waris Ali's case (supra) which was also rendered by a two-member Bench of this Court and wherein seemingly an opposite view from Saadullah's case was taken. However, notably, the judgment in Saadullah's case was prior in time and the view rendered by the learned Bench in Waris Ali's case had neither taken into account the judgment rendered in Saadullah's case and nor distinguished it. Furthermore, the view taken by this Court in Saadullah's case has also been followed by this Court in its recent judgment in Muhammad Sharif's case (supra).

14. Therefore, in view of the above, Mst. Roshnae was entitled to inherit the entire estate of Abdul Ghafoor, being his full sister. Notably, the Amendment Act of 1964 was enacted on 15.4.1964 and came into force at once, therefore pursuant to the Amendment Act of 1964 through which the Act of 1962 was made applicable to cases even where the full owner had died prior to the commencement of the Act of 1962, the limited estate held by Mst. Roshnae was terminated and she inherited the complete estate of Abdul Ghafoor in her personal capacity as per Muslim Personal Law (Shariah). Therefore, the gift made by Mst. Roshnae to the appellants on 28.4.1964, i.e. after the enactment of the Amendment Act of 1964, was valid as she was no longer holding the estate a a limited owner but had inherited the entire suit property according to Shariah. It is a settled proposition of law that at the time the inheritance of a deceased Muslim opens, all the entitled legal heirs become owners to the extent of their shares there and then, therefore, sanction of mutation, issuance of succession certificate etc. are procedural matters regulated by procedural laws just to make records and for fiscal purposes. Reference is made to the cases of Khan Muhammad through LRs and others v. Mst. Khatoon Bibi and others (2017 SCMR 1476) and Mahmood Shah v. Khalid Hussain Shah (2015 SCMR 869), Therefore, Mst. Roshnae was competent to gift the entire suit property to the appellants and consequently, the gift would be valid.

15. In view of what has been discussed above, these appeals are allowed, the impugned judgment and decree of the High Court is set aside and the judgment and decree passed by the trial Court dismissing the suit of the plaintiffs/respondents is restored. No order as to costs. MWA/A-30/SC Appeals allowed.

2022 S C M R 1675 [Supreme Court of Pakistan] Present: Amir Hani Muslim, Qazi Faez Isa and Mazhar Alam Khan Miankhel, JJ MAJEED MASIH

Appellant versus The STATE

Respondent Criminal Appeal No. 181 of 2012, decided on 20th February, 2017.* (On appeal from the judgment dated 28.02.2011 passed by the Lahore High Court, Lahore in M.R. No. 160 of 2004) (a) Penal Code (XLV of 1860)

Ss. 302(b), 337-F(ii) & 337-F(iii)

Qatl-i-amd, causing knife wounds

Reappraisal of evidence

Ocular account given by all the three witnesses appeared to be true, natural, trustworthy and confidence inspiring and the same remained un-shattered during their lengthy cross-examination

Presence of eye-witnesses and deceased in a field early in the morning to ease themselves at the call of nature was natural and matter of routine in villages

Medical evidence brought on the record and the post-mortem report were also in line with the ocular account furnished by the eye-witnesses and there appeared no reason to disbelieve the same

Alleged delay of 10 to 12 hours in conducting post-mortem had duly been explained on the record

Police station was situated at a distance of 10 kms and their was nothing in record to reflect that the village where the occurrence took place was connected with the police station through a metalled road

So the time consumed in the entire process was quite justifiable

Recovery of blood stained churri at the pointation of accused with a positive report of Forensic Science Laboratory was yet another supportive aspect of the case

Convictions of accused recorded under sections 302(b), 337-F(ii) & 337-F(iii), P.P.C. were maintained

Appeal was partly allowed. [p. 1678] A, B & C (b) Penal Code (XLV of 1860)

Ss. 302(b), 337-F(ii) & 337-F(iii)

Qatl-i-amd, causing knife wounds

Reappraisal of evidence

Sentence, reduction in

Death sentence reduced to imprisonment for life

Motive not established

Prosecution alleged that the accused being nephew of the complainant was forbidden by the latter from visiting his house and this act of the complainant provoked/instigated the accused to commit the murder of complainant's wife

Such alleged motive appeared to be un-believable for the reason that for such an act of the complainant one would not go for the extreme step of committing murder and that too of a person with whom the accused had no ill-will

Motive for the commission of murder of the deceased lady remained shrouded in mystery

Conviction of accused under sections 302(b), 337-F(ii) & 337-F(iii), P.P.C. was maintained, however death sentence awarded to him was converted into imprisonment for life

Appeal was partly allowed. [p. 1679] D, E & G (c) Penal Code (XLV of 1860)

S. 302(b)

Qatl-i-amd

Quantum of sentence

Motive not established

Effect

Failure on the part of prosecution to prove motive set by it or even absence of motive may be a factor to persuade the Court to withhold the extreme sentence of death because reason for the murder remains un-known. [p. 1679] F Muhammad Asif v. Muhammad Akhtar and others 2016 SCMR 2035 and Qaddan and others v. The State 2017 SCMR 148 ref. Ms. Aisha Tasneem, Advocate Supreme Court for Appellant. Ch. Muhammad Sarwar Sidhu, Additional P.G. Punjab for the State. Date of hearing: 20th February, 2017. JUDGMENT MAZHAR ALAM KHAN MIANKHEL, J.

Majeed Masih, appellant herein, was booked in case FIR No.542/2003 registered under sections 302, 337-F(ii) and 337-F(iii), P.P.C. at Police Station, Thekriwala, District Faisalabad for the alleged murder of Mst. Elizabeth on the report of Yaqoob Masih her husband. After a regular trial, the appellant was convicted and sentenced by the trial Court as under:- "Under section 302(b), P.P.C. Death with further direction to pay Rs.100,000/- as compensation to the legal heirs of Mst. Elizabeth deceased as required under section 544-A, Cr.P.C. or in default thereof six months' SI. Under section 337-F(ii), P.P.C. Three years' R.I. Under section 337-F(iii), P.P.C. Three years' RI and to pay Daman of Rs.20,000/-. Benefit of section 382-B, Cr.P.C. was also extended to him." The appellant did not question his conviction and sentences by filing any appeal but the High Court while receiving the murder reference as abundant caution and to secure the ends of justice appointed a counsel at the State expense and after hearing the parties, the conviction and sentences against the appellant on all the above charges were maintained and confirmed. Hence the instant appeal by the leave of this Court granted vide orders dated 6.03.2012. Leave to appeal in this case had been granted in order to reappraise the evidence and today, with the assistance of the learned counsel for the parties, we have undertaken the said exercise.

2. The record of the case would reveal that the occurrence took place at a time when the deceased lady at about 5:15 a.m. had gone to ease herself at the call of nature in the nearby fields. The Complainant-Yaqoob Masih (PW 8), Samuel Masih (PW-7) and Ashraf Masih (PW-6) as a matter of routine were also going to attend the call of nature. When they reached at the place of occurrence, the deceased lady while coming back was attacked by the appellant, armed with churri, by giving two consecutive blows one on the right flank and the other on the left front side of her chest. Samuel Masih being ahead of the two eye-witnesses came forward to apprehend/rescue her but the appellant also inflicted two blows of churri one after the other on his left arm near elbow and decamped from the scene brandishing the churri. The complainant and the other PWs took care of Mst. Elizabeth but she succumbed to her injuries. The local police was attracted to the spot on getting information of the occurrence at about 7:50 a.m. The occurrence as reported was witnessed by the above named three persons. The presence of the PM as has come on the record is but natural and a matter of routine in the villages. In reply to a question PW Ashraf Masih has abruptly said that they often meet early in the morning while going to answer the call of nature. The 02 eye-witnesses i.e. the Complainant and the Samuel Masih were closely related to the deceased lady i.e. the husband and the brother respectively. Their evidence for this reason requires a careful reappraisal. Whereas the third eye-witness i.e. Ashraf Masih though resident of the same village and of the same baradri but an independent witness was alleged to be a chance-witness so his evidence too would require careful examination. The ocular account given by all the three witnesses appears to be true, natural, trustworthy and confidence inspiring and the same remained un-shattered during the lengthy cross-examination and the defence bitterly failed to extricate anything harmful to the prosecution case. PW Ashraf Masih has satisfactorily explained his presence at the spot. He has given the eye-witness account which remained un-shattered in lengthy cross-examination. His testimony was so natural that he showed his unawareness regarding the character of the appellant and if at all considered to be a chance-witness even then his testimony being in conformity with the ocular evidence cannot be discarded merely for the reason that he was a chance-witness when the same is confidence inspiring and trustworthy. Nothing has been brought on the record by the defence as to why he being an independent witness would falsely depose against the appellant. His presence, as stated above, at the place of occurrence has also appeared to be natural and the same has not been shattered by the defence. So the statement of such witness gets more importance. Reference in this regard can be made to the cases of Anwar Shamim and another v. The State (2010 SCMR 1791) and Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1142).

3. The medical evidence brought on the record in the shape of PW-1 Dr. Safia Mughal and the post-mortem report (Exh.PA) are also in line with the occular account furnished by the eye-witnesses and there appears no reason to disbelieve the same. The alleged delay of 10 to 12 hours in post-mortem and death has duly been explained on the record. The police station is situated at a distance of 10 kms. and the police was attracted to the spot on getting information of the occurrence at about 7:50 a.m. There is nothing on the record to reflect that the village where the occurrence took place was connected with the police station with a metalled road. So the time consumed in the entire process is quite justifiable. Recovery of blood stained churri (Exh.PG) at the pointation of appellant with a positive report of Forensic Science Laboratory (Exh.PO) is yet another supportive aspect of the case.

4. As for as the motive part of the case is concerned, the appellant being nephew (Bhanja) of the complainant was forbidden by him to visit his house and this act of the complainant to say provoked/instigated the appellant to commit the murder of the lady appears to be un-believable for the reason that for such an act one would not go for such an extreme step of committing murder and that too of the person with whom he has no motive. Besides the above, the appellant in his statement under section 342, Cr.P.C. has tried to make out a case that the complainant had doubt in his mind that appellant had illicit relations with his wife and at the time of occurrence after seeing the appellant in the company of his wife he got provoked and committed the murder of his wife and Samuel Masih, the brother of the deceased lady, also received injuries while apprehending the complainant to save her sister. This story, on the face of it, appears to be absurd as the deceased lady at the time of her murder was in advance stage of her pregnancy. The eye-witnesses were also put such type of suggestions but the defence could not get any support for such plea and the appellant failed to prove and establish his special stance/defence plea for which burden under Article 121 of the Qanun-e-Shahadat Order, 1984 was upon him to prove the same. He even did not bother to get himself examined under section 340(2), Cr.P.C. to establish his stance. Mere allegations and denial of occurrence would not be sufficient to give him a clean chit especially in a case where the eye-witness account has gone un-shattered.

5. The scanning of the entire record would make us to believe that motive for the commission of murder of the deceased lady remains shrouded in mystery and the law on the point is settled by now that failure on the part of prosecution to prove motive set by it or even absence of motive may be a factor to persuade the Court to withhold the extreme sentence of death because reason for the murder remained un-known. Reference in this regard, amongst others, can be made to the cases of Muhammad Asif v. Muhammad Akhtar and others (2016 SCMR 2035) and Qaddan and others v. The State (2017 SCMR 148). So in the circumstances, we have been persuaded to withhold the appellant's death sentence and to substantiate it by sentence of imprisonment for life.

6. In view of what has been discussed above, we partly allow this appeal by converting the death sentence of the appellant to that of imprisonment for life. He is extended benefit of section 332-B, Cr.P.C. In addition, the appellant shall be liable to pay compensation of Rs.100,000/- under section 544-A, Cr.P.C. to the legal heirs of the deceased and or in default thereof shall undergo six months' SI. However, all the sentences shall run concurrently. The above are the reasons for our short order of even date which reads as under:- "For reasons to be recorded later, this Criminal Appeal is partly allowed to the extent that the death sentence awarded to the Appellant is converted into life imprisonment. The Appellant would be entitled to the benefit of section 382-B, Cr.P.C. In addition to the sentence of life imprisonment the Appellant shall be liable to pay compensation of an amount of Rs.1,00,000/- to the legal heirs of the deceased under section 544-A, Cr.P.C. and in default thereof shall under go six months' S.I. All the sentences awarded to the Appellant shall run concurrently." MWA/M-49/SC Sentence reduced.

2022 S C M R 1680 [Supreme Court of Pakistan] Present: Umar Ata Bandial, C.J., Sajjad Ali Shah and Muhammad Ali Mazhar, JJ FARAZ AHMED

Petitioner versus FEDERATION OF PAKISTAN through Secretary, Ministry of Communication, Government of Pakistan, Islamabad and others

Respondents Civil Petition No. 4282 of 2018, decided on 28th February, 2022. (Against the judgment dated 08.10.2018 Islamabad High Court, Islamabad in W.P. No. 4184 of 2014) (a) Industrial Relations Ordinance (XCI of 2002) [since repealed]

S. 46

Constitution of Pakistan, Art. 199

Constitutional petition filed before the High Court for implementation/execution of judgment of the Labour Court

Maintainability

No provision was available under Article 199 of the Constitution whereby the execution or implementation of Judgment passed by the subordinate Courts may be implemented by the High Court

Grievance petition in the Labour Court was filed under section 46 of the erstwhile Industrial Ordinance 2002 which dealt with the procedure and mechanism for redressing individual grievances

Under subsection (6) of section 46, the Labour Court had jurisdiction to prosecute any person against which decision or order is passed but who had not complied with the same within one month, or within the period specified in such order

If the petitioner was of the view that the directions contained in the Labour Court judgment were not complied with or directions were violated, then obviously the proper course was to approach Labour Court for recourse rather than the High Court

Alternatively, if the petitioner was aggrieved that the relief given to him in the judgment was wrongly withheld by the Labour Court, then he could have filed an appeal before the Labour Appellate Tribunal

Petition for leave to appeal was dismissed and leave was refused. [p. 1685] A (b) Civil service

Contractual employee

Regularization, right of

Scope

Contractual employees have no vested right to regularization, but their regularization may be considered subject to the fitness, suitability and the applicable laws, rules and regulations of the Department

Where a contractual employee wishes to be regularized, he must demonstrate statutory basis for such a claim, in the absence of which, relief cannot be granted solely on the principle of "similarly placed persons". [pp. 1685, 1686] B & C Khushal Khan Khattak University through Vice-Chancellor and others v. Jabran Ali Khan and others 2021 SCMR 977; Government of Khyber Pakhtunkhwa, Workers Welfare Board through Chairman v. Raheel Ali Gohar and others 2020 SCMR 2068; Chairman NADRA, Islamabad, through Chairman, Islamabad and another v. Muhammad Ali Shah and others 2017 SCMR 1979; Pakistan Defence Officers' Housing Authority v. Jawaid Ahmed 2013 SCMR 1707; Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir PLD 2011 SC 132; P.T.C.L. v. Masood Ahmed Bhatti 2016 SCMR 1362; Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others v. Intizar Ali and others 2022 SCMR 472; Vice-Chancellor, Bacha Khan University Charsadda, Khyber Pakhtunkhwa and others v. Tanveer Ahmad and others 2022 PLC (C.S.) 85; Pakistan Telecommunication Company Ltd. v. Muhammad Samiullah 2021 SCMR 998; Government of Khyber Pakhtunkhwa through Secretary Forest, Peshawar and others v. Sher Aman and others 2022 SCMR 406 and Deputy Director Finance and Administration FATA through Additional Chief Secretary FATA, Peshawar and others v. Dr. Lal Marjan and others 2022 SCMR 566 ref. G.M. Chaudhry, Advocate Supreme Court for Petitioner. Nemo for Respondents. Date of hearing: 28th February, 2022. JUDGMENT MUHAMMAD ALI MAZHAR, J.

This Civil Petition for leave to Appeal is directed against the judgment dated 08.10.2018, passed by learned Islamabad High Court in W.P. No.4184 of 2014, whereby the Writ Petition filed by the petitioner was dismissed.

2. The tersely enunciated facts of this Civil Petition are as under:- The petitioner was working as Upper Division Clerk (UDC) in Vigilance Directorate, Communications Division, Ministry of Communications and Railways, Government of Pakistan, Islamabad since 19.11.2001 on contract basis however his services were dispensed with effect from 01.06.2006. The petitioner assailed the termination before the learned Federal Service Tribunal, Islamabad which was abated in view of the judgment rendered by this Court in the case of Muhammad Mubeen us Salam v. Federation of Pakistan, etc. [PLD 2006 SC 602]. Consequently, the petitioner with some other persons had filed a joint Grievance Petition No.318 of 2006 in the Labour Court, Islamabad which was disposed of by means of a consolidated judgment with the observation that being contractual employees, contract period has already expired and establishment/vigilance Directorate has been wound up, therefore, regularization of the services of the petitions could not be ordered. However, the petitioners, who are found suitable keeping in view the nature of job of the newly created Cell, would be considered for their absorption subject to the Rules. Since the Petitioner was not considered for regular absorption, he filed a Writ Petition No.4184 of 2014 in the High Court for implementation of Labour Court judgment which was dismissed vide impugned judgment dated 08.10.2018.

3. The learned counsel for the petitioner argued that the rules regarding relaxation of Upper Age Limit were applicable in the case of the petitioner for his permanent absorption in the Planning, Monitoring and Evaluation Cell. It was further contended that the petitioner approached the High Court by filing a Writ Petition for the implementation of the Judgment passed by the Labour Court for reappointment of the petitioner in the Planning, Monitoring and Evaluation Cell of Ministry of Communications following the winding up of the Vigilance Directorate of the same Ministry, but the learned High Court failed to consider that, in the light of Prime Minister's Directive dated 30.05.2006, the petitioner was within the prescribed age limit as provided in Rule 3 of the Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 1993 which allows relaxation of upper age limit up to 15 years. It was further averred that, at the time of re-advertisement of vacancies on 18.02.2007, the petitioner was within the prescribed age limit, but he was not considered for permanent absorption.

4. Heard the arguments. The sequence of events unveils that the petitioner was appointed vide Appointment Letter dated 12.4.2011 in the Vigilance Directorate, Ministry of Communication and Railways (Communication Davison) as Upper Division Clerk (UDC) in BPS-7. The tenure of contractual engagement was made effective from 19.11.2011 till 31.12.2002 with the rider that the contract period may be renewed. As a Policy decision, the Prime Minister of Pakistan had approved the proposal for winding up the Vigilance Directorate no later than 30.06.2006. In compliance with the directives, a Notification was issued on 30.05.2006 by the Additional Secretary, Prime Minister's Secretariat (Public) directing the Ministry of Communication to expedite the establishment of the Planning, Monitoring and Evaluation Cell pursuant to the decision of Executive Committee of the National Economic Council ("ECNEC") and directions of the Prime Minster and consider the absorption of suitable persons from the Vigilance Directorate into the newly created Planning, Monitoring and Evaluation Cell. In the series, one more Notification was issued by the Section Officer, Ministry of Communication Government of Pakistan on 1.6.2006 for the information that the Vigilance Directorate in the Ministry of Communication had been wound up w.e.f. 30.6.2006 and vide Office Order dated 15.06.2006, the Ministry of Communication dispensed with the services of officers/ officials of Vigilance Directorate with effect from 30.6.2006.

5. The learned counsel for the petitioner made much emphasis that, though the Vigilance Directorate was wound up, but as per niceties of the letter dated 30.5.2006, suitable persons performing their duties in Vigilance Directorate could have been absorbed in the newly established Planning, Monitoring and Evaluation Cell. However, the learned counsel failed to articulate whether, pursuant to the aforesaid letter, the contractual employees had any better or vested right of absorption over and above the permanent employees of the Vigilance Directorate. Neither the letter explicitly put forward whether absorptions of suitable employees implies and conveys solely the contractual employees or permanent employees, or both, nor did the learned counsel argue that the entire vigilance directorate was being run on the strength of contractual employees without the strength of any permanent employee. Indeed, the primary and foremost condition for absorption was the suitability and fitness of the employees and it was the inherent right and prerogative of employer to adjudge and examine the credentials and antecedents whether the person applying for absorption was fit to perform the duties according to the nature of job in the newly created Cell and deserved the absorption either as a contract employee or a permanent employee.

6. The learned counsel for the petitioner also referred to another Office Order dated 11.10.2011, whereby the contractual services of some employees were regularized in the Planning, Monitoring and Evaluation Cell of the Ministry of Communications pursuant to the Cabinet Sub-Committee decision conveyed on 4.10.2011. We do not think that this letter of regularization of the contractual employees, issued pursuant to the Cabinet Sub-Committee decision conveyed in the year 2011, has any significance or renders any assistance to the case of the petitioner whose contractual services were dispensed with much earlier in the year 2006. He further referred to another letter dated 11.06.2011 issued by the Section Officer, Cabinet Secretariat Establishment Division, Government of Pakistan whereby the upper age limit was approved by the Cabinet Sub-Committee for Regularization of Contract/Daily Wages Employees up to 50 years in view of the long Contract/Daily Wages Services rendered by the incumbents on the same posts. Learned counsel for the petitioner further drew our attention to letter dated 11.10.2011, whereby some contractual employees of NHA from BPS-1 to BPS-16 following within the age bracket of 50 years age as on 30.6.2011 were regularized with immediate effect. Again, this letter pertains to year 2011 with the cut-off date of age limit for regularizing the services of contractual employees. All these developments took place in the year 2011 and had nothing to do with the period in which the petitioner was performing his contractual duties in the Vigilance Directorate which was wound up in 2006 and the contractual services of the petitioner were dispensed with.

7. After abatement of Service Appeal in view of the judgment of this Court rendered in the case of "Muhammad Mubeen-us-Salam v. Federation of Pakistan and others" (PLD 2006 SC 602), the petitioner approached the Labour Court and his Grievance Petition was disposed of on 20.4.2007 by the learned Labour Court with the finding that the contract period of the contractual employees had expired and the Vigilance Directorate was already wound up hence the regularization of the service of the petitioners was not possible, however, the Labour Court issued directions that, if the petitioners are suitable keeping in view the nature of job of the newly created cell, they would be considered for their absorption in the said Cell subject to the Rules. We have also scanned the memo of Writ Petition filed in the High Court by means of which the petitioner entreated that the official respondents be directed to absorb the petitioner as Upper Division Clerk in Planning, Monitoring and Evaluation Cell in the light of Prime Minister Directives dated 30.05.2006 as well as in the light of judgment in Petition No.274 of 2006 passed by the Labour Court, Islamabad. The learned counsel averred that the petitioner had, in fact, approached the Islamabad High Court for the implementation and execution of the Labour Court Judgment by the High Court. It is quite astounding that the petitioner had filed petition for implementation of the Judgment of the Labour Court in the High Court when no such provision is available under Article 199 of the Constitution of 1973 whereby the execution or implementation of Judgment passed by the subordinate Courts may be implemented by the High Court. It was not the case within the premise or confines of Sub-Article (2) of Article 187 of the Constitution in which any decision, order or decree passed by the Supreme Court may be executed by a High Court as if it had been issued by the High Court. At this juncture we would also like to allude to the fact that the Grievance Petition in the Labour Court was filed under section 46 of the erstwhile Industrial Ordinance 2002 which dealt with the procedure and mechanism for redressing individual grievances. Under subsection (6) of section 46, the Labour Court had jurisdiction to prosecute any person against which decision or order is passed but who had not complied with the same within one month, or within the period specified in such order. So in all fairness, if the petitioner was of the view that the directions contained in the Labour Court Judgment were not complied with or directions were violated, then obviously the proper course was to approach Labour Court for recourse rather than the High Court. Alternatively, if the petitioner was aggrieved that the relief of regularization was wrongly withheld by the Labour Court, then he could have filed an appeal before the Labour Appellate Tribunal.

8. The bone of contention was whether the petitioner, being a contractual employee, had any vested right for regularization or absorption in the newly created cell, and whether a certain length of contractual services could be considered to give rise to a legitimate right to be permanently absorbed. On the contrary, in the various dictums laid down by this Court it was repeatedly held that contractual employees have no vested right to regularization, but their regularization may be considered subject to the fitness, suitability and the applicable laws, rules and regulations of the Department. In the case of Khushal Khan Khattak University through Vice-Chancellor and others v. Jabran Ali Khan and others (2021 SCMR 977), this Court held that it is settled law that there is no vested right to seek regularization for employees hired on contractual basis unless there was legal and statutory basis for the same. In the case of Government of Khyber Pakhtunkhwa, Workers Welfare Board through Chairman v. Raheel Ali Gohar and others (2020 SCMR 2068), this Court held that contractual employees have no automatic right to be regularized unless the same has specifically been provided for in the law. The judgment of this Court in Civil Petitions Nos. 4504 to 4576, 4588 and 4589 of 2017 dated 08.01.2013 was also quoted in which it was held that contractual employees have no right to be regularized until there is a law provided to that effect and we are not confronted with any such legal proposition. They have to serve till the pleasure of their master and, in case of any wrongful termination, they cannot seek the reinstatement. At the best, they can only have the compensation for the wrongful termination by applying to the competent court of law. Whereas in the case of Chairman NADRA, Islamabad, through Chairman, Islamabad and another v. Muhammad Ali Shah and others (2017 SCMR 1979), it was held that till such time that the employees were regularized they would continue to be governed by the terms and conditions of the contract which they had with NADRA. The writ or constitutional jurisdiction of the High Court under Article 199 of the Constitution could not be invoked by a contractual employee of a statutory organization, such as NADRA (see Pakistan Defence Officers' Housing Authority v. Jawaid Ahmed reported as 2013 SCMR 1707, Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir reported as PLD 2011 Supreme Court 132 and P.T.C.L. v. Masood Ahmed Bhatti reported as 2016 SCMR 1362). In the next case of Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others v. Intizar Ali and others (2022 SCMR 472), it was held that temporary employees have no vested right to claim reinstatement/ regularization. This Court in a number of cases has held that temporary/contract/project employees have no vested right to claim regularization. The direction for regularization, absorption or permanent continuance cannot be issued unless the employee claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules and against the sanctioned vacant posts, which admittedly is not the case before us. In the case of Vice-Chancellor, Bacha Khan University Charsadda, Khyber Pakhtunkhwa and others v. Tanveer Ahmad and others (2022 PLC (C.S.) 85), it was held that a person employed on contract basis has no vested right to regularization. Similarly, in the case of Pakistan Telecommunication Company Ltd. v. Muhammad Samiullah (2021 SCMR 998), it was held that an ad hoc, temporary or contractual appointment does not create any vested right of regularization in favour of the appointee. In the case of Government of Khyber Pakhtunkhwa through Secretary Forest, Peshawar and others v. Sher Aman and others (2022 SCMR 406), it was held that contract employees have no vested right to be regularized. While in the case of Deputy Director Finance and Administration FATA through Additional Chief Secretary FATA, Peshawar and others v. Dr. Lal Marjan and others (2022 SCMR 566), it was held by this Court that that regularization is not a vested right but requires a statutory basis which is admittedly absent in the instant case. Where a contractual employees wishes to be regularized, he must demonstrate statutory basis for such a claim, in the absence of which, relief cannot be granted solely on the principle of "similarly placed persons".

9. The petitioner counsel failed to point out any mala fide intention or malice on the part of the department against the petitioner which deprived him of the alleged right of permanent absorption in the newly created cell but, on the face of it, the petitioner himself admitted that his case was rejected merely for the reason that at the time of consideration he was found over age but despite that he could have been considered subject to age relaxation. Neither in the High Court, any plea of relaxation in the age pursuant to any applicable Rules was taken, nor any such plea was taken in the Labour Court nor was anything placed on record to show that the petitioner ever applied for any such relaxation at the relevant time. Consequently, no such plea can be taken at this belated stage. The petitioner himself mentioned in his profile that initially he was recruited in the Pakistan Navy on 21.1.1981 and thereafter retired from service on 20.1.2000, after 19 years of service in Pakistan Navy. At the time of his appointment in the Vigilance Directorate in the year 2001, his age was 38 years so at the time of winding up, his age was approximately 44 years. As per the eligibility criteria laid down by the Ministry, the test/interviews were conducted for various posts through an open Advertisement in the Newspapers dated 18.2.2007, but the petitioner candidature was not considered due to over age. The learned High Court has rightly observed that the petitioner never went through the procedure of employment, but only those persons who were found eligible and fit were inducted who applied in fresh procedure and fulfilled the prescribed criteria.

10. In the wake of above discussion, we do not find any infirmity or perversity in the impugned judgment. This Civil Petition is dismissed and leave is declined. MWA/F-10/SC Appeal dismissed.

2022 S C M R 1687 [Supreme Court of Pakistan] Present: Mazhar Alam Khan Miankhel and Munib Akhtar, JJ ALLAH DITTA and others

Appellants/Applicants versus YAQOOB ALI and others

Respondents Civil Appeal No. 342 of 2014 and C.M.A. No. 5890 of 2014 in C.A. No. 342 of 2014 and C.M.A. No. 3938 of 2016 in C.A. No. 342 of 2014, decided on 20th October, 2020. (On appeal from the judgment dated 4.12.2013 passed by the Lahore High Court, Lahore in R.S.A. No. 133 of 2004) Transfer of Property Act (IV of 1882)

S. 54

Contract Act (IX of 1872), Ss. 8 & 9

Agreement to sell immoveable property

Agreement not signed by vendee

Effect

Valid contract could be oral or it may be brought through exchange of communication between the parties

Once an offer is communicated, the acceptance of the same could be express or implied

Non-signing of an agreement to sell by the vendee will have no adverse effect against the rights of that vendee

In the present case, no doubt neither of the vendees had signed the agreement to sell at the time of its execution but one of the vendees was very much present before the Sub-Registrar at the time of registration of the agreement and had signed the certificate of registration before the Sub-Registrar

Besides, the vendor and the witnesses had also signed the same

Appeal was allowed. [p. 1690] A & B Muhammad Sattar v. Tariq Javaid 2017 SCMR 93 ref. Mirza M. Aziz-ur-Rehman, Advocate Supreme Court for Appellants/Applicants. Syed Muhammad Kaleem Ahmed Khurshid, Advocate Supreme Court for Respondents. Date of hearing: 20th October, 2020. JUDGMENT MAZHAR ALAM KHAN MIANKHEL, J.-- C.M.A. No.3938/2016: For the reasons mentioned in the Civil Miscellaneous Application, the same is allowed. Civil Appeal No.342/2014: The Appellants being plaintiffs had filed a suit for specific performance of a registered agreement to sell dated 26th June, 1986 ('Agreement') against the Defendant/the original owner. After a full-fledged trial, suit of the Appellants was decreed by the trial court vide its judgment and decree dated 27th January, 1999. The appeal of the Defendant was dismissed by the appellate court of Additional District Judge, Depalpur District Okara vide his judgment and decree dated 1st July, 2004. The Defendant; still not satisfied with the concurrent findings against him, filed a Regular Second Appeal (R.S.A.) before the Lahore High Court, Lahore. The learned Judge in Chambers, after hearing the parties, was pleased to allow the same by setting aside the concurrent findings of the courts below and dismissed the suit of the Appellants. The Appellants being aggrieved of the same have filed instant direct appeal against the impugned judgment.

2. Learned counsel for the parties were heard and record of the case was gone through with the valuable assistance of the learned counsel for the parties.

3. Perusal of the record would reveal that it is a simple suit for specific performance of an agreement dated 26th June, 1986 and that too the same was a registered one. The vendor/Defendant passed away during pendency of appeal on 23rd February, 2012 and this very fact gets support from interim order of Lahore High Court, Lahore but decree sheet of the High Court reflects that his legal heirs were not impleaded. However, legal heirs have been impleaded in the appeal in hand and would be referred as Respondents hereinafter. The deceased Defendant at the time of execution of the agreement and also before the Sub-Registrar had admitted receipt of an amount of Rs.3,44,000/- (Rupees three lac forty four thousand) out of Rs.3,54,000/ - (Rupees three lac fifty four thousand) and only an amount of Rs.10,000/- (Rupees ten thousand) remained outstanding which was agreed to be paid at the time of registration of sale deed as the property agreed to be sold in favour of Appellants was mortgaged with a Bank (Agricultural Development Bank of Pakistan-ADBF) in respect of an agricultural loan. However, possession of the suit property was also delivered to the Appellants at the time of execution of the document. The deceased Defendant while submitting his written statement has categorically denied the execution and existence of the agreement as well as receiving of any sale consideration on the basis of that agreement. We have gone through the entire evidence available on the record and observed that Appellants being beneficiaries of the agreement have proved the same in accordance with law. Besides the marginal witnesses, the Sub-Registrar who had registered the agreement was also produced as a witness to further strengthen their case. Record would further reflect that the Defendant didn't appear himself to contest and defend his case and only one Muhammad Radque was produced as DW-1 but he too didn't appear to face the test of cross-examination which reflects that denial on the part of Defendant was nothing less than an effort in futile and unproductive which is of no help to Defendant or his legal heirs, the present Respondents. The trial court after considering the entire evidence has rightly granted a decree in favour of Appellants and rightly upheld by the Appellate Court.

4. Perusal of the impugned judgment would reveal that the learned Judge in Chambers, in the light of judgment of this court rendered in the case of Gulshan Hamid v. Abdur Rehman (2010 SCMR 334), has held it to be a unilateral agreement as the same was not signed by the vendee, but perusal of the Ex-P-1 would reveal that no doubt neither of the vendees had signed the agreement to sell at the time of its execution but one of the vendees namely Muhammad Yar was very much present before the Sub-Registrar at the time of registration of the agreement and had signed the certificate of registration before the Sub-Registrar. Besides, the Defendant/vendor, the witnesses had also signed. The above said observation by the learned Judge in Chambers appears to be against the record. Besides the judgment relied upon Gulshan Hamid ibid; was latter on held by a five Members Bench of this Court to be a view contrary to the judicial pronouncements of this court on the plea that a valid contract could be oral or it may be brought through exchange of communication between the parties. Once an offer is communicated, the acceptance of the same could be express or implied. So non-signing of an agreement to sell by the vendee will have no adverse effect against the rights of that vendee. The view rendered by five Members Bench in case of Muhammad Sattar v. Tariq Javaid (2017 SCMR 98) holds the field.

5. The learned counsel during the course of his arguments also tried to make out a case that the impugned agreement was against the provisions of 'Loans for Agricultural Purposes Act, 1973, (Act XLII of 1973)', but we may observe that this never remained the case of the Respondents before the courts below. Besides, there is no legal embargo upon a sale of the property under a charge; if a property is under a charge, it can legally be sold but along with the charge and it is up to sweet-will of the parties agreeing to such an agreement. However, in the light of Act of 1973 nothing was brought on the record to justify the arguments of the learned counsel for the Respondents which was nothing less than an afterthought.

6. In view of the above, we are constrained to hold that the findings arrived at by the High Court are against the law and record of the case, hence not maintainable. We are left with no option but to allow the instant appeal by setting aside the impugned judgment and decree of the Lahore High Court, Lahore by restoring the judgment and decree of the trial court as well as the appellate court but with no orders as to costs. C.M.A. No.5890/2014 and C.M.A 3378/2016: As the main appeal has been allowed, Civil Miscellaneous Application (C.M.A. No.5890/2014) has become infructuous and is dismissed as such and C.M.A. 3378/2016 is disposed of accordingly. MWA/A-27/SC Appeal allowed.