P L D 2002 Karachi 108 (PLP)

The applicant in support of his ejectment application filed his affidavit in evidence. The opponent/appellant filed his affidavit in evidence and affidavit of his son. Subsequently affidavit of his son was withdrawn and he only examined himself. The learned Rent Controller ultimately came to the conclusion that the demised premises were required to respondent in good faith for his personal use and that the appellant had failed to clear all the charges of water and conservancy etc. He allowed the ejectment application and passed the order which is impugned in this appeal. It is contended by the learned counsel for appellant that Issues Nos. l and 3 have been erroneously decided in favour of landlord. The evidence on these issues have not been properly evaluated. The bona fides of landlord have not been properly considered by the learned Rent Controller. It is stated that the respondent owned other properties in the city and he wanted to sell demised premises. It is pleaded that the appellant was depositing rent in Court as per order dated 2‑11‑1994 including water and conservancy charges. The respondent was residing at Saudi Arabia with his family and whenever he visits Karachi, he lives in K.D.A. House and does not want the demised premises in good faith for personal use. It is submitted that the conclusion arrived at by the learned Rent Controller is based on misreading of the evidence. Mr. Iftikhar Javed Qazi learned counsel for respondent submitted that the premises in question were required for the use of first wife of the respondent for which he has categorically stated in ejectment application in sub‑para. (ii) of para.

8. The said para. (ii) of para. 8 reads as under:‑‑‑ Apartment in question bearing No.FF‑3, Block No.2, Sea View Apartments, Phase V Extension, Defence Housing Authority, Karachi in the name of the applicant meant and reserved for the purposes of residence of the applicant's said first wife Mst.Qamar Ara Begum. The said assertion has not been specifically denied by the party in his written statement. It is submitted that the demised premises cannot be sold by the respondent under the rent laws as there is a penal clause contained under section 17 (6) of the Cantonments Rent Restriction Act, 1963. It is pleaded that the respondent visits Pakistan and lives in different hotels for which the bills have been produced on record. The respondent does not own any other property except those which have been disclosed by him in his rent application. The demised premises are only suitable for the residence of his wife and children. The suitability of comfortable accommodation is to be decided by the landlord and he cannot be compelled by the tenant to occupy the premises at the choice of tenant. Reliance is placed upon the cases S.M. Nooruddin and others v. Saga Winters, 1998 SCMR 2119, Wasim Ahmed Adenwala v. Shaikh Karimriaz 1996 SCMR 1055, Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178, National Development Finance Corporation Shahrah‑e‑Quaid‑e‑Azam, Lahore v. Shaikh Naseemuddin and 4 others PLD 1997 SC 567, Messrs Chaudhri Wire Rope Industries (Pvt.) Limited, Muridke through its General Manager v. Secretary to the Government of the Punjab and Rural Development Department, Lahore and others 1994 CLC 1060. Abdul Wahid Lehri v. Arbab Mir Nawaz and others 1997 SCMR 1789, Muhammad Khurshid v. Wazirzada and others 1986 SCMR 181, Mrs. Abdul Hamid Khan v. Shamsul Hassan 1988 CLC 2294, Sardar Khan v. Ria2 Ahmed and others 1986 S C M R 1981, Mrs. Rukaya Sultana v. Mrs. Zaree Zafar 1996 CLC 1060, Messrs Eveready Picture Ltd. v. Chaman Begum PLP 1982 Kar. Assistant Mukhtiarkar Miro Khan left his Police Station in police mobile for pointed place. The complainant party conducted raid at the pointed place when two persons finding themselves surrounded tried to escape from the scene alongwith their Weapons, who were warned to surrender as the premises were encircled by the police and ultimately they were apprehended by the police. In the meanwhile P.C. Bashir Ahmed and P.C. Ghulam Sarwar were appointed to act as Mashirs. On enquiry one of them having K.K. loaded with a magazine disclosed himself to be Atta Hussain Khokhar the present applicant and the other having K.K. loaded with a magazine containing 13 live bullets disclosed himself to be Shafqat Hussain Khokhar. They were enquired about the licences of their respective K.Ks. who disclosed the same to be unlicensed. It is further the case of prosecution that another person was also found sleeping on the cot, who was awakened. On enquiry he disclosed himself to be Imdad Hussain s/o Muhammad Khan Khokhar resident of Shahpur. On search of the cot, the police party recovered two single barrel guns and seven 12 bore live cartridges. He also disclosed the same to be unlicensed. Thereafter such Mashimama duly signed by the above two Revenue Officers was prepared and a case under section 13‑D of Arms Ordinance was registered against the applicant herein and separate cases against other two accused were lodged. Based on the same facts as Crime No.62 of 2001, a separate F.I.R. bearing No.63 of 2001 of the same Police Station was registered against Shafqat Hussain Khokhar for possession of an unlicensed K.K. which is the subject‑matter of Criminal Bail Application No.519 of 2001. A bail after arrest application was moved on behalf of applicants before the trail Court which was rejected giving rise to the present application. Learned counsel for the applicants has mainly contended that the alleged weapons have been foisted upon the applicants at the instance of a local Zamindar. Further that there is a flagrant violation of section 103, Cr.P.C. by not associating any respectable independent person to act as a Mashir while prior spy information was received by the police. Consequently the case calls for further enquiry as the prosecution has foisted `‑,he alleged weapons upon the applicants. In support of his contentions learned counsel has relied on an unreported order in the case of Javed Ali v. The State (Criminal Bail No.53 of 1997) of this Court at Circuit Court, Larkana and following case7laws: (1) State v. Bashir (PLD 1997 SC 408). (2) Sardar Khan v. State (1999 MLD page 1918). (3) Imdad Ali v. The State 2001 YLR 1848. The learned A.A.‑G. has opposed the grant of bail on the basis that per well‑settled law, police witnesses are as good as any others in the absence of mala fides which has not been alleged by the applicants. We have heard learned counsel as well as the learned A. A.‑G. and our conclusions are as follows: Admittedly there is a violation of section 103, CI.P:C. as an independent witness was not associated with the recovery although spy information was received by the police much before they conducted the raid and there was sufficient time available to do the needful. It would also be seen that the recovery was made from the house of the applicants located in a village. Consequently it cannot be said that private witnesses were not available. So also by and large the superior Courts have deprecated the role of the complainant and Investigating Officer being one and the same person. The learned counsel appearing for the applicant has also brought to our attention several orders passed by a Division Bench of this court where in identical matters bail has been granted We are of the opinion therefore that this is a matter of further, inquiry. The above are the reasons for our short order passed on 10‑11‑2001 granting bail to the applicants. N.H.Q./A‑295/K Bail granted.