2007 PLP 2097 (YLR)

SALIM KHAN, J.

Learned counsel for the petitioner submitted that, vide order sheet No.3 dated 27-6-2005, the learned original Court directed the pre-emptor respondent to deposit 1/3rd of the pre-emption amount before the next date. It was on 12-7-2005, the next date fixed by the Court; that the pre-emptor submitted an application for permission to deposit the 1/3rd pre-emption amount and the Court allowed the deposit of the same, which amount was deposited on the same date.

2. On 10-12-2005, the present petitioner (defendant) submitted application with a request to dismiss the suit on the ground that the 1/3rd of the pre-emption amount was not deposited in time. Vide the reply of the plaintiff, it was alleged that the Court had ordered the deposit of the 1/3rd pre-emption amount, but had practically granted extention in the time in the light of section 148, P.P.C., and the pre-emption amount was deposited accordingly. The learned original Court, vide order dated 16-2-2006, dismissed the application of the present petitioner. A civil revision was filed by the defendant, numbered as 22/CR dated 28-3-2006, which was dismissed on 15-12-2006. Hence this writ petition.

3. The learned counsel for the petitioner contended that the words used in subsection (1) of section 24 were "within such period as the Court may fix". He referred to the order dated 27-6-2005 wherein the words used are "plaintiff is directed to deposit 1/3rd of pre-emption amount before the date fixed. File to come up for attendance of defendant on 12-7-2005".

4. Learned counsel for the petitioner contended that the time fixed by the Court had already ended on 11-7-2005 and extention in time could not be granted by the learned original Court. He repeated his contention that the respondent had also accepted that the time fixed had passed but the Court had practically extended the time. The learned counsel for the petitioner relied on 2003 CLC 535, 1997 MLD 2945, 2002 SCMR 365, 2004 SCMR 418 and 2005 SCMR 1588 in support in his contention.

5. The learned counsel for the respondent, however, contended that the application dated 12-7-2005 was not for extention of time, and it was for permission to deposit the pre-emption amount which was already allowed. The learned counsel for the respondent relied on 1998 MLD 2413 and contended that, in rent cases, the tentative rent could be deposited on the date fixed. The words used in those laws, however, were "on or before the date fixed".

6. The word "shall" has been used in subsection (1) of section 24 of the N.-W.F.P. Pre-emption Act, 1987, subsection (2) thereof is the penalty clause which has categorically mentioned that the suit would be dismissed if the amount was not deposited within the period prescribed/ fixed by the Court. The order of the Court was unambiguous and clear-cut. It was for the learned trial Court to consider at the initial stage, before issuing the first order, whether the time to be fixed was or was not sufficient, but once that period was fixed, the learned original Court did not have the power to take up the question of insufficiency of the period at a later stage. The learned original Court did not have any power, to extend the time once 11-7-2005 had passed. It was immaterial whether the amount was deposited on 12-7-2005 before calling the case or otherwise.

7. In the light of above, we have come to the conclusion that the impugned order of the learned original Court, dismissing the application of the present petitioner, and the impugned order of the learned revisional Court, dismissing the civil revision of the present petitioner, are against the law and are liable to setting aside. We, therefore, accept the present writ petition and declare that both the above mentioned impugned orders are' illegal and without lawful authority and are hereby set aside. The suit of the plaintiff, consequently, is liable to be dismissed. We direct the learned original Court and the learned revisional Court accordingly. M.B.A./124/P????????????????????????????????????????????????????????????????????????????????????? Petition accepted. 2007 Y L R 2099 [Lahore] Before Ijaz Ahmad Chaudhry, J MUHAMMAD PERVAIZ

Petitioner Versus THE STATE

Respondent Criminal Miscellaneous No.3098-B of 2007, decided on 10th May, 2007. Criminal Procedure Code (V of 1898)

S. 497(2)

Penal Code (XLV of 1860), S.302

Bail, grant of

Further inquiry

Benefit of doubt

Prosecution story showed that incident had taken place during the night time

Contents of F.I.R., revealed that deceased was murdered by her (husband) accused through strangulation with his hands, but a string was recovered by the police from near the dead body of deceased during investigation, which had belied story of prosecution and it was also doubtful that accused had chosen the time to murder his wife when her close relatives were also present in the home

Even otherwise, complainant and other eye- witnesses were residing at a far off place and their version of being present at the spot at the time of occurrence during the night time, would be considered by the Trial Court after recording prosecution evidence

Co-accused, who was attributed role of catching hold of deceased during occurrence, had been declared innocent

Accused had taken the specific plea that deceased was done to death by the dacoits and the police also recorded statements of the persons from the locality during the investigation to substantiate said plea

Accused had succeeded in making out a case of further enquiry

Accused was behind the bars since 29-3-2006 and bail could not be refused merely as a punishment

Benefit of doubt at any stage had to go to accused and heniousness of the offence was not a ground for refusal of bail when accused had succeeded in making out a case of further enquiry

Accused was admitted to bail, in circumstances. Ch. Nawab Ali Mayo for Petitioner. Abdul Latif Hanjra, Deputy Prosecutor General for the State. Muhammad Akram, A.S.-I. with record. ORDER IJAZ AHMAD CHAUDHRY, J.

Through this application under section 497, Cr.P.C., Muhammad Pervaiz, petitioner seeks post-arrest bail in a case F.I.R. No.162 of 2006, dated 17-3-2006, registered under section 302/34, P.P.C. at Police Station Kahna, Lahore, on the application' of Muhammad Arshad, the complainant.

2. The brief facts as narrated in the F.I.R. are that the petitioner had contracted Marriage with Mst. Kausar Bibi, sister of the complainant and to settle a dispute between them, the complainant along with Mehboob (P.W.) came to the house of the petitioner. They stayed there in the night. During the night between 16/17-3-2006 on having alarm the P.Ws. attracted to the room of the petitioner and saw that Khalid co-accused, elder brother of the petitioner was catching hold of Mst. Kausar Bibi and laid her on the cot, while the petitioner was pressing her neck with the hands, who died at the spot.

3. The learned counsel for the petitioner has contended that the petitioner has been falsely involved in the present case with mala fide intention in league with the police; that according to the contents of F.I.R. the deceased was murdered by pressing her neck through hands, but during the investigation string was recovered and the prosecution story was belied; that it is not possible that the petitioner would' have selected the time to murder his wife in the presence of her family members; that the alleged eye-witnesses of the incident are close relatives of the deceased, who are residing at a far off place and they had reached the spot afterwards on having received information about the death of the deceased; that according to the post-mortem report, the death was caused by interference with respiration at the level of neck leading to asphyxia, which is in contradiction with the ocular account and the defence version is nearer to truth that in fact dacoity had been committed in the house of the petitioner and on resistance, they committed murder of the wife of the petitioner through strangulation. Thus, the case against the petitioner is doubtful, who is behind the bars since 29-3-2006 and his detention in jail will serve no useful purpose to the prosecution, therefore, the petitioner is entitled to the concession of bail.

4. The learned Deputy Prosecutor General for the State has vehemently opposed this bail petition, while contending that the offence falls within ambit of prohibitory clause of section 497, Cr.P.C.

5. I have heard the arguments advanced by the learned counsel for the parties and perused the record with due care and caution.

6. According to the prosecution story, the incident had taken place during the night between 16/17-3-2006. According to the contents of F,I.R., the deceased was murdered by her husband through strangulation with his hands, but on the other hand the string was recovered by the police from near the dead body of the deceased during the investigation and the prosecution story has been belied. It is also doubtful that the petitioner had chosen the time to murder his wife when her close relatives were also present in the home. Even otherwise, the complainant and the other eye-witnesses were residing at a far off place and their version of being present at the spot at the time of the occurrence during the night time will be seen by the learned trial Court after recording the prosecution evidence. Moreover, Khalid co-accused has been declared innocent during the investigation, who was attributed the role of catching hold of the deceased during the occurrence. On the other hand, the petitioner has taken the specific plea that the deceased was done to death by the dacoits and the police also recorded the statements of the persons from the locality during the investigation to substantiate the said plea. For the time being the petitioner has succeeded in making out a case of further inquiry, who is behind the bars since 29-3-2006 and bail cannot be refused merely as a punishment. The benefit of doubt at any stage has to go' to the accused and heinousness of the offence is not a ground for refusal of bail when the accused has succeeded in making out a case of further inquiry. For the foregoing reasons, the instant bail application is accepted and the petitioner is admitted to bail subject to furnishing bail bonds in the sum of Rs.1,00,000 with two sureties each in the like amount to the satisfaction of the learned trial Court. H.B.T./M-304/L????????????????????????????????????????????????????????????????????? ??????????? Bail granted.