Procedure in Impotency Cases

 PLJ 2022 Peshawar 113

[Mingora Bench, Sawat)]

Present: Muhammad Naeem Anwar and Muhammad Ijaz Khan, JJ.

UMAR KHITAB--Petitioner

versus

Mst. SANA SHAH and another--Respondents

W.P. No. 932-M of 2021 With Interim Relief (N), decided on 9.3.2022.

Dissolution of Muslim Marriages Act, 1939 (VIII of 1939)--

----S. 2(v)(vi)(ix)(c)--Constitution of Pakistan, 1973 Arts. 2-A & 199--Suit for dissolution of marriage--Impotency of petitioner--Application for Medical Examination of petitioner during pendency of suit--Allowed--Determination of impotency of petitioner--Direction to--Denial of allegations of impotency--Second marriage of petitioner--Mode, manner and methodology adopted by Judge Family Court for determination of issue in hand is neither legal nor lawful nor justified, especially when such a controversy has already been pleaded by parties, issue in this respect has been framed and when they are yet to produce their respective evidence in support of their respective stance--Petitioner has contracted a second marriage with Mst. Aziza Bibi and who have gave birth to a baby boy and thus if impugned direction of appearance before Medical Board is allowed to sustain, then it will cause to cast a doubt over legitimacy of new born baby--Procedure adopted by Judge Family Court for determination of impotency of petitioner is declared as alien to law on subject, we hold that petitioner has not been treated in accordance with law--He has been compelled to do which law does not require him to do and petitioner has been deprived of protection of law of land--Petition allowed.

                                                                      [Pp. 119 & 120] A, B & C

Malak Ahmad Jan, Advocate for Petitioner.

Mr. Tariq Aziz, Advocate for Respondent No. 1.

M/s. Barrister Dr. Adnan Khan and Abdul Nasir, Advocates as amicus curiae.

Dates of hearing: 1 & 9.3.2022.

Judgment

Muhammad Ijaz Khan, J.--Through the instant petition, the petitioner has challenged the order of Respondent No. 2 i.e. Judge Family Court-I, Swat dated 28.09.2021, whereby petitioner was directed to appear before Medical Board for his medical examination so as to ascertain the factum or otherwise of his impotency.

2. Precisely the facts of the case are that Respondent No. 1 namely Mst. Sana Shah had filed a suit for dissolution of her marriage on the ground of impotency of the petitioner, non-payment of maintenance as well as cruelty. She has also prayed for payment of maintenance as well as for the return of dowry articles as per list attached with the plaint.

3. Petitioner, then defendant, was summoned who submitted his written statement, whereby all the allegations leveled against him by the plaintiff/Respondent No. 1 were denied, specially with respect to his impotency as he has annexed his medical report from a famous laboratory and he has also stated that in-fact it was Respondent No. 1/plaintiff who is not ready to perform marital obligation and failure of all jirga, he has contracted second marriage and are living a happy life. The controversies between the parties were reduced into as many as seven issues, including the issue of dissolution of marriage on the basis of non-fulfillment of marital obligations.

4. At the stage of recording evidence of the plaintiff/ Respondent No. 1, it was on 29.05.2021, when Respondent No. 1/ plaintiff namely Mst. Sana Shah submitted an application for sending the present petitioner for medical examination regarding the impotency or otherwise before the trial of the suit, which application was strongly resisted by the present petitioner by submitting a detailed reply, however, the learned Judge Family Court vide impugned order dated 28.09.2021 allowed the aforesaid application with the following observations:

“Thus, in the light of the above, application is allowed and the defendant Umar Khitab is directed to appear before the Medical Board for his medical examination. Moreover, the Medical Superintendent D.H.Q. Hospital Saidu Sharif shall be addressed through a separate letter to constitute a Medical Board for the purpose of determining that whether respondent/defendant Umar Khitab is able to perform sexual intercourse/fulfill his conjugal rights or not. The report shall be submitted on or before date fixed. The medical/ examination expenses shall be borne by plaintiff.”

The petitioner has challenged the aforesaid order before this Court through the instant petition.

5. We have heard arguments of learned counsel for the parties as well as learned amicus curiae in detail and perused the record with their able and valuable assistance.

6. In this case, the questions before this Court for determination are that;

i.        As to how and in what manner the impotency of an husband is to be ascertained and determined when such allegations are leveled against him by his wife?

ii.       As to whether the mode and manner adopted by the learned Judge Family Court by directing the petitioner to appear before the Medical Board for his medical examination so to as ascertain his impotency or potency as the case may be, is legally correct as per the law of the land? And

iii.      As to whether the petitioner has been treated/dealt with in accordance with the law of the land?

7. As far as the first and second questions are concerned, to answer these question, Section 2 clauses (v), (ix) and proviso (c) of clause (ix) of The Dissolution of Muslim Marriages Act, 1939 are relevant, which are reproduced hereunder:-

“2. Grounds for decree for dissolution of marriage.--A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:-

(i)                                                                                            

(ii)                                                                                           

(iii)                                                                                          

(iv)                                                                                          

(v)      That the husband was impotent at the time of the marriage and continues to be so;

 (vi)                                                                                         

(vii)                                                                                         

 (viii)                                                                                       

(ix)     on any other ground which is recognized as valid for the dissolution of marriages under Muslim Law:

          Provided that--

(a)----------------------------------------------------------------------------------

(b)----------------------------------------------------------------------------------

(c)      Before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground.”

The aforesaid provision makes it unmistakably clear that for passing a decree on the ground of impotency of an husband, the Court is not required to send the husband to appear before a Medical Board for its report but what is required from a Judge Family Court is that it has to pass an order requiring the husband to satisfy it within a period of one year from the date of such order to the effect that the husband has ceased to be impotent and if the husband satisfies the Court, then no decree shall be passed on the said ground.

8.  It would also be relevant for the purpose of the present controversy to quote some extracts from مجموعہ قوانین اسلام authored by Dr. Tanzeel-ur-Rehman:

"تفریق بسبب نامردی:

"122۔ (i) جس عورت کا نکاح شرع اسلام کے بمو جب منعقد ہوا ہو بدیں بناء عدالت سے تنسیخ نکاح کا حکم حاصل کر سکتی ہے کہ اس کا شوہر بوقت نکاح نامرد تھا نیز یہ کہ اس کی وہ حالت برقرار ہے۔

(ii) شوہر کی درخواست پر عدالت پر لازم ہو گا کہ بر بناء نامر دی تنسیخ نکاح کا حکم جاری کرنے سے قبل شوہر کو ایک سال کی مہلت دے تا کہ شوہر اس ایک سال کی مدت میں عدالت کو مطمئن کر سکے کہ وہ نامرد نہیں رہا ۔ اگر شوہر اس مدت میں عدالت کو مطمئن کر سکا تو عدالت نامردی کی بناء پر تنسیخ نکاح کا حکم دینے کی مجاز نہ ہو گی ۔

تشریح

 نامر د کی تعریف:

 فقہی اصطلاح میں نامرد ( عنین ) اس شخص کو کہتے ہیں جو عضو تناسل رکھنے کے باوجود عورت سے جماع کرنے پر قادر نہ ہو ، خواہ یہ حالت پیدائشی ہو یا کسی مرض کے سبب پیدا ہوئی ہو یا کمزوری یا بڑھاپے یا کسی اور وجہ سے پیدا ہوئی ہو ۔ اگر کوئی ایسا شخص جو بعض عورتوں سے جماع کرنے پر قادر ہے مگر بعض عورتوں سے جماع کرنے پر قادر نہیں تو وہ شخص ان بعض عورتوں کے حق میں جن سے جماع کرنے پر قادر نہیں ہے نامرد سمجھا جاۓ گا یا جس مرد کو عورت کی مخالطت سے قبل ہی انزال ہوجا تا ہو ، نامرد سمجھا جائے گا ۔

 ایسے مرد کی زوجہ کو جو اس سے جماع کرنے پر قادر نہ ہوا ہو شرع نے بذریعہ عدالت طلب تفریق کا اختیار دیا ہے اور یہ اختیار زوجہ کے مطالبہ کی تاخیر سے خواہ کتنا عرصہ گزر جائے باطل نہیں ہوتا ۔

جب زوجہ اپنا معاملہ عدالت کے روبرو پیش کرے تو قاضی کے لئے لازم ہے کہ وہ شوہر سے حقیقت حال معلوم کرے ۔ اگر شوہر اس بات کا اقرار کرے کہ وہ اس عورت سے جماع کرنے پر قادر نہیں ہواتو حاکم عدالت علاج کرنے کے لئے اسکو ایک سال کی مہلت دے گا ۔ لیکن اگر شوہر عورت سے جماع کرنے کا ادعا کرے اور عورت کنواری ہونے کی مدعی نہ ہو تو شوہر سے حلف لیا جاۓ گا اگر اس نے قسم کھالی کہ اس نے اس عورت سے جماع کیا ہے تو عدالت زوجہ کی درخواست مسترد کر دے گی لیکن اگر شوہر حلف لینے سے انکاری ہو تو عدالت اس کو علاج کرنے کے لئے ایک سال کی مہلت دے گی ۔ لیکن اگر عورت اس بات کی مدعی کی ہے کہ وہ کنواری ہے تو عدالت اس عورت کے طبی معائنہ کا حکم دے گی اگر طبی معائنہ کی رو سے عورت کا باکرہ ہونا ثابت نہ ہو تو شوہر سے حلف لیا جائے گا اگر اس نے قسم کھائی کہ اس نے اپنی ز وجہ سے جماع کیا ہے تو عدالت تفریق کا حکم جاری نہ کرے گی لیکن اگر شوہر حلف لینے سے انکار کرے تو عدالت ایک سال کی مہلت دے گی ۔ لیکن اگر طبی معائنہ سے یہ ثابت ہو کہ عورت اس وقت تک کنواری ہے تو عدالت شوہر سے حلف لئے بغیر اس کو علاج کی غرض سے ایک سال کی مہلت دے گی ۔ اسی طرح اگر عورت اپنے ثیبہ ہونے ( کنوارے پن کے ازالہ ) کے متعلق یہ کہے کہ شوہر نے اسکا ازالہ انگلی سے یا کسی دوسرے طریقے سے کیا ہے وطی سے نہیں اور شوہر وطی کرنے کا مدعی ہو تب بھی یہی حکم ہو گا ۔ حنیفہ کے نزدیک ڈاکٹری معائنہ کا نتیجہ کہ اسکی بکارت کس طرح زائل ہوئی معتبر ہو گا لیکن افضل یہ ہے کہ ڈاکٹر نیوں کی تعداد 2 ہو ۔

 ایک سال کی مدت حاکم عدالت کے مہلت دینے کی تاریخ سے شمار ہو گی اس سے پہلے خواہ کتنی ہی مدت گزر چکی ہو اس کا اعتبار نہ کیا جائے گا ۔

اگر ایک سال کی مدت میں شوہر کسی طرح علاج کر کے تندرست ہو گیا اور ایک مرتبہ بھی عورت سے جماع کرنے پر قادر ہو گیا تو عورت کا اس بناء پر فسخ نکاح کا حق باطل ہو جائے گا ۔

لیکن اگر اس ایک سال کی مدت میں شوہر ایک بار بھی عورت سے جماع پر قادر نہ ہو سکا تو عدالت عورت کی خواہش پر ، شوہر کو طلاق دینے کا حکم دے گی ۔ اگر شوہر طلاق دینے سے منکر ہو تو عدالت خود تفریق کر دے گی ۔ "

A comparison of the abovementioned extracts from مجموعہ قوانین اسلام and provisions of The Family Courts Act would show that Section 2 (v), (ix) and proviso (c) of clause (ix) of The Act of 1939 is in line and conformity of Sharia, therefore no deviation could be allowed to sustain in the form of the impugned order of the Judge Family Court.

9. In the case in hand, petitioner being an husband and who in his written statement has taken a specific plea that when the aforesaid allegations of impotency were made by the Respondent No. 1, then plaintiff, in presence of his father-in-law, thereafter her parents required the present petitioner to undergo necessary medical test which he has accordingly conducted from a laboratory and as per the report of the laboratory dated 04.06.2020, petitioner has been declared as a healthy and potent man. Therefore, the legal worth of the aforesaid report and plea of the petitioner of being a healthy and potent man was yet to be determined by the learned Judge Family Court after recording of pro & contra evidence, however in the middle of the way, the Judge Family Court by allowing the application of the Respondent No. 1/plaintiff has directed the present petitioner to appear before the Medical Board for ascertainment of the impotency or otherwise of the petitioner, and thus the mode, manner and methodology adopted by the Judge Family Court for the determination of the issue in hand is neither legal nor lawful nor justified, especially when such a controversy has already been pleaded by the parties, issue in this respect has been framed and when they are yet to produce their respective evidence in support of their respective stance, therefore we believe that the Judge Family Court has erred in law by allowing application of the Respondent No. 1, then plaintiff, and by restoring to a procedure, which is alien to law on the subject.

10. It is also a matter of record and as stated in Paras-v, vi & vii of the instant petition that petitioner has contracted a second marriage with one Mst. Aziza Bibi and who have gave birth to a baby boy and thus if the impugned direction of appearance before the Medical Board is allowed to sustain, then it will cause to cast a doubt over the legitimacy of the new born baby, so on this score too, petitioner would face an unending social humiliation and as such would amount to deprive him of an opportunity of social justice as guaranteed to him by the preamble and Article 2-A of the Constitution of Islamic Republic of Pakistan, 1973.

11. To answer the Question No. 3, it may be noted that it is the inalienable right of every citizen to be treated in accordance with the law of the land, so it would be relevant to trace the aforesaid right of the petitioner being a citizen of Pakistan in the Constitution of Islamic Republic of Pakistan, 1973, the following provisions would be relevant:

“Preamble.--Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him in a sacred trust;

Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed;

Wherein the Muslim shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah;

Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;”

Under Article 2-A of The Constitution of lslamic Republic of Pakistan, 1973, the objective resolution has been declared as substantive part of The Constitution, where the following provisions are relevant for the fact in issue:-

“Wherein the principles of democracy, freedom, equality, tolerance and social justice as annunciated by Islam shall be fully observed;

Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah;

Wherein shall be guaranteed fundamental rights including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;

Article 4. Right of individuals to be dealt with in accordance with law, etc.--(1) to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.

(2) In particular--

(a)    No action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;

(b)    No person shall be prevented from or be hindered in doing that which is not prohibited by law; and

(c)    No person shall be compelled to do that which the law does not require him to do.”

Article 25. Equality of citizens.--(1) All citizens are equal before law and are entitled to equal protection of law.”

12. So keeping in view the aforesaid mandate of the Constitution of Islamic Republic of Pakistan, 1973, the procedure adopted by the learned Judge Family Court for determination of the impotency of the petitioner-husband is declared as alien to law on the subject, we hold that petitioner has not been treated in accordance with law. We also hold that he has been compelled to do which the law does not require him to do and as such we further hold that petitioner has been deprived of the protection of law of the land.

13. In view of the aforesaid discussion, the instant writ petition is allowed, the impugned order of Respondent No. 2 i.e. Judge Family Court-I, Swat dated 28.09.2021 is set aside and consequently the learned Judge Family Court-I, Swat is directed to proceed in the case in accordance with law and as per the aforesaid mode and manner for determination of the impotency of the petitioner-husband, if any, essential for a just and fair decision between the parties.

(Y.A.)  Petition allowed

Non Payment of Pensionary Benefits

 PLJ 2024 AJ&K 99

Present: Syed Shahid Bahar, J.

MUHAMMAD BASHIR KHAN--Petitioner

versus

AZAD GOVT. OF THE STATE OF JAMMU & KASHMIR through its Chief Secretary, Muzaffarabad, Azad Kashmir
and others--Respondents

W.P. No. 759-A of 2020, decided on 19.1.2024.

Azad Jammu and Kashmir Civil Servants (Pension) Rules, 1971--

----Rr. 5.1 & 5.2--AJK Interim Constitution, (VIII of 1974), Art. 44--Retirement after superannuation--Non-payment of pensionary benefits--Obligation of--Direction to--petitioner was retired from service in year 2017 as Junior Clerk but his pension payment order had not been finalized after passing many years till today--All concerned authorities were under legal obligation to sanction pension a month before date of retirement--This statutory provision had been ignored which resulted into creating hardships and anomalous situations and agony for retiring petitioner--Petition accepted.                                                               [P. 102] A, B & C

2015 SCR 1396 ref.

Barrister Humayun Nawaz Khan, Advocate for Petitioner.

Representative of Education Department.

Date of hearing: 19.1.2024.

Judgment

1. Expressum Facit Cessare Tacitum.

Supra maxim of law denotes that something expressed nullifies what is unexpressed. If doing of a particular thing was made lawful doing of something in conflict with that would unlawful.

2. So the thing must be done in a way/procedure prescribed for it to get its validity in the eye of law otherwise it would not be conferred legality.

3. Lax and abstracted authority instead of adopting pragmatic approach slept over the matter for a long time, resultantly the petitioner a retired employee has been deprived from pensionary benefits. Exfacie it is a worst type of maladministration and administrative injustice on part of the relevant authority. Loath petitioner feeling aggrieved as a last resort invoked the extraordinary jurisdiction of this Court conferred under article 44 of the Interim Constitution, 1974. Thus, this Court cannot remain aloof and on looker.

A stanza from William Shakespeare’s sonnets :

4. The phoenix and tratle drew my attention while handing down the judgment in hand:

Truth may seem, but cannot be; beauty brag, but’ til not she; Truth and beauty buried be.

5. All sort of power take breath and colour from the power bank of relevant statutes under the umbrella of the Constitution.

6. Voltaire rightly said that every man is guilty of all the good he did not do.

7. Pensions are periodic payments, usually for the natural life of a person who retires because of age or disability, sometimes, the term refers to periodic payments to wives, widows or children of a primary deceased person or pensioner, occasionally, a pension will be conveyed solely as an honour for conspicuous service or valour. Pensions are provided by Government in three guises:

1)       As compensation to war veterans and families for old age or for disability or death, usually from service causes;

2)       As disability or old age retirement benefits for civilian employees of government; and

3)       As social security payments for the aged, differently abled or deceased citizenry based on past.

Pension is a Right:

8. It goes without saying that a person who enters Government Service has something to look forward to post his/her retirement which are called retirement benefits, of which grant of pension is the most valuable of such benefits. Pension like salary of a civil servant is no longer a bounty or an ex-gratia payment but a right accrued / acquired in consideration of his/her past service which was a vested right with legitimate expectation. The right to pensions conferred by law which cannot be abridged or reduced arbitrarily except in accordance with such law.[1]

9. Through the titled writ petition filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, the petitioner is seeking direction against the respondents to issue the Pension Payment order of petitioner and pay him monthly pension alongwith all benefits in accordance with law.

10. Brief facts forming background of the instant writ petition are that the petitioner is 1st Class State Subject of Azad Jammu and Kashmir, and he was retired from service as Junior Clerk on 26.02.2013 upon his superannuation vide order dated 15.03.2017 from Girls High School Nalian, District Sudhnoti. The petitioner contended that the respondents even after laps of more than three years (now six years) failed to pay the pension to the petitioner by issuing his pension payment order, under pretext of an audit para against the Girls High School Nalian, District Sudhnoti. The petitioner submitted various applications for obtaining his legal right of pension, but all in vain. Lastly, the petitioner submitted an application on 26.11.2019 and affidavit dated 29.1.2020 that in case any liability is declared against him, he would be liable for the same. The petitioner alleged that District Education Officer (Female) Elementary and Secondary Education wrote to the Headmistress of Girls High School Nalian, District Sudhnoti vide letter dated 03.03.2020 for issuance of NOC but she refused to issue the same on the ground that at relevant time of retirement, she was not holding the post of Headmistress, Girls High School Nalian, District Sudhnoti. The D.E.O E/S also wrote to the DPI (female) E/S vide letter dated 16.03.2020 by enclosing petitioner’s affidavit but no progress is being made till to date.

11. Writ petition was admitted for regular hearing on 07.07.2020 and respondents were directed to file written statement but respondents have failed to submit written statement, hence, their defence was closed on 1.2.2022.

12. Arguments heard. Record perused.

13. The claim of the petitioner is that respondents be directed to issue the Pension Payment Order of petitioner and pay him monthly pension alongwith all benefits of pension for which he is entitled, in accordance with law.

14. A perusal of file it reveals that the petitioner-Muhammad Bashir Khan on completion of age of superannuation dated 26.02.2017, retired from his service as a Junior Clerk from Girls High School Nalian, District Sudhnoti, vide order dated 15.03.2017 with all pensions privileges alongwith leave encashment. Annexure “PB” reveals that petitioner filed an application before D.P.I Schools (female) for obtaining NOC on 26.11.2019, which was received in the said office on 13.12.2019, however, after passing many years NOC has not been issued by the official quarters with one or the other reasons and petitioner herein has been constrained to approach this Court by filing this petition.

15. The petitioner was retired from service in year 2017 as Junior Clerk but his pension payment order has not been finalized after passing many years till today. Delaying of pension of the petitioner is against the spirit of law and concept of good governance as well as creates a question mark upon the performance of the official quarters. Whereas, according to the statutory provisions all the concerned authorities are under the legal obligation to sanction the pension a month before the date of retirement. It is usefully to refer here rules 5.1 and 5.2 of the Azad Jammu and Kashmir Civil Servants (Pension) Rules, 1971, as infra:

“5.1. All authorities dealing with applications for pensions under these rules should bear in mind that delay in the payment of pensions involves peculiar hardship. It is essential to ensure, therefore, that a Government servant begins to receive his pension on the date on which it becomes due.

5.2. The responsibility for initiation and completion of pension papers is that of the Head of Department/ Attached Department concerned in the case of gazette officers, and of the Head of Officer concerned in the case of non-gazzetted Government servants. The action should be initiated one year before a Government servant is due to retire, so that pension may be sanctioned a month before the date of his retirement. For this purpose, every Government servant should be asked to submit his pension application in Form 3 (Pen) 6 months in advance of the date of his retirement.

          Provided that in case in which the date of retirement cannot be foreseen 6, months in the advance, the Government servant, may be asked to submit his pension application immediately after the date of his retirement is known.”

16. In this regard, reference can be placed upon the case reported as 2015 SCR 1396.

17. Unfortunately, this statutory provision has been ignored which resulted into creating hardships and anomalous situations and agony for the retiring person/petitioner.

18. For reason recorded above, the instant writ petition is accepted and official-respondents are directed to take immediate

actions regarding payment of pension to the petitioner and finalize the pension matter of the petitioner within a period of one month, and after doing needful, compliance report be submitted to Registrar of this Court. One Lac rupees (Rs. 1,00,000/-) cost is imposed to the Education Department as well.

File shall be kept in record room.

(Y.A.)  Petition accepted

---

[1].      Deokinandan Prasad v. State of Bihar (AIR 1971 SC 1409); Govt. of N.W.F.P v. Muhammad Said Khan (PLD 1973 SC 514); State of Punjab v. Iqbal Singh (AIR 1976 SC 667); I.A. Sharwani v. Govt. of Pakistan (1991 SCMR 1041); Secretary, Government of Punjab v. M. Ismail Tayer (2014 SCMR 1336); Pakistan Telecommunication Employees Trust v. Muhammad Arif (2015 SCMR 1412) and Riffat Sattar v. Govt. of Punjab [2016 PLC (C.S) 472].

Condition of Non Counting Contractual Service

 PLJ 2024 Tr.C. (Services) 89

[Federal Service Tribunal, Islamabad]

Present: Asim Akram and Muhammad Mushtaq  Jadoon, Members

WALI MUHAMMAD--Appellant

versus

SECRETARY, MINISTRY OF FEDERAL EDUCATION & PROFESSIONAL TRAININGS ISLAMABAD
and 2 others--Respondents

Appeal No. 416(R)CS of 2020, heard on 10.5.2023.

Civil Service Regulations--

----Art. 361 & 371-A-- Service Tribunals Act, (LXX of 1973), S. 4--Contractual appointment--Regularization--Retirement from service after attaining age of superannuation--Denial of pensionary benefits--Condition for non counting of contractual service period for pension--Non-obstant clause--Maintainability-- As per O.M., 2013 last pay of non-Gazzetted contractual employee, on his regularization, was protected conditionally and one of conditions was that service rendered on contract bases shall not qualify for pension. This condition was maintained in O.M., 2014--Condition of not counting contractual service for purpose of minimum length of service for eligibility of pension was in conformity with Civil Service Regulations (CSR) 361)--Period spent in contractual employment could not be added to make up for any deficiency in qualifying service for purpose of eligibility to receive pension--Non obstante clause in Article 371-A of CSR did not allow those who did not fulfil requisite conditions for qualifying for pension to bypass such conditions and add up regular and contractual periods of employment for purpose of meeting eligibility criterion of ten years of service--Appeal dismissed.     [Pp. 92 & 94] A, B & C

PLD 2016 SC 534 & 2021 SCMR 1546 ref.

Mr. Ghulam Rasool Bhatti, Advocate for Appellant.

Mr. Ali Haider, Assistant Attorney General for Respondents.

Syed Zahir Hussain Gillani, A.D Legal, Gul Nawaz, Assistant, as DRs.

Date of Hearing: 10.5.2023.

Judgment

Asim Akram, Member--The appellant joined the ‘Prime Minister’s Literacy Commission’ as Assistant w.e.f. 25-01-1996 vide office order dated 24-01- 1996 initially for a period of six months which was extended from time to time un-till his services were regularized on recommendation of Cabinet’s Sub-Committee on Regularization of Contract/Daily Wage Employees w.e.f. 01-07-2013 vide Notification dated 05-04-2018. The appellant, upon attaining the age of superannuation, got retired from service on 01-06-2017.

2. The appellant was denied pension on the ground that he has only four years of regularized service to his credit and as per service rules minimum qualifying length of service for pensionary benefits is ten years. To calculate the length of appellant’s service the respondents also refer to Office Memorandum (the O.M., 2013) dated 31-05-2013 by Finance Division (Regulations Wing) which describes the conditions for protection of pay of contractual employees on regularization or appointment on regular bases. To clear certain ambiguities in the O.M., 2013 another Office Memorandum dated 06-03-2014 (the O.M., 2014) was released. To reach the ends of justice both the memorandums are replicated as under:

3. As per the O.M., 2013 the last pay of the non-Gazzetted contractual employee, on his regularization, was protected conditionally and one of the conditions was that the service rendered on contract bases shall not qualify for pension. This condition was maintained in the O.M., 2014. The condition of not counting the contractual service for the purpose of minimum length of service for eligibility of pension is in conformity with Civil Service Regulations (CSR) 361) which provides that the employment must be permanent. Article 361 read as under;

361. Except as otherwise provided in these Regulations, the service of an officer does not qualify for pension unless it conforms to the following three conditions:-

First. The service must be under Government.

Second. The employment must be substantive and permanent.

Third. The service must be paid by Government.

(Emphases attached)

4. As per the dictums laid down by the Supreme Court in case titled Chairman, Pakistan Bailway, Government of Pakistan v. Shah Jahan Shah (PLD 2016 SC 534) the following general principles apply to employees who have worked against contractual posts which were subsequently regularized for the purpose of grant and calculation of pension:

Ø  An employee who was employed on contractual basis and is subsequently regularized may be entitled to pensionary benefits provided;

Ø  He is eligible for pension having served for the qualifying period (10 years) as a regular employee;

Ø  For the purpose of calculating pensionary benefits his service as a contractual employee can be factored in to provide him any financial benefit that may be due to him;

Ø  The period spent in employment as a contractual employee and as a regular employee cannot be aggregated in order to determine his eligibility for entitlement to pension.

Ø  Eligibility to receive pension is directly related to rendering qualifying service as a regular employee. Unless an employee has performed services in a regular appointment for the duration of the qualifying period (10 years), he is not entitled to receive pension.

5. In latest judgment in case titled Ministry of Finance through Secretary and others v. Syed Afroz Akhtar Rizvi and others (2021 SCMR 1546) the Supreme Court has taken consistent view and has held the period spent in contractual employment subject to a minimum

of five years can be included in calculating pensionary benefits but only and only in a situation where the employee is otherwise entitled/ eligible to receive pension subject to having rendered qualifying service (10 years) in permanent employment. Unless he meets the criteria of having served for the duration of the qualifying period, the period spent in contractual employment cannot be added to make up for any deficiency in qualifying service for the purpose of eligibility to receive pension.

6. The provisions of Article 371-A of CSR relates to counting of temporary service for the purpose of pension and gratuity start with a non obstante clause which means that the said Article does not relate to the question regarding entitlement or eligibility to receive pension. The non obstante clause in Article 371-A of CSR does not allow those who do not fulfil the requisite conditions for qualifying for pension to bypass such conditions and add up regular and contractual periods of employment for the purpose of meeting the eligibility criterion of ten years of service.

7. Acknowledging the reasons above the titled appeal is not maintainable as the length of permanent/regularized service of the appellant is less than required minimum service of ten years and the contractual/temporary service can not be counted to fill in the deficiency of minimum length of regular service; the appeal is regretted, accordingly.

8. There is no order as to cost. Parties be informed.

(Y.A.)  Appeal dismissed

Murder by Churri (Knife)

 PLJ 2024 Cr.C. (Note) 219

[Lahore High Court, Lahore]

Present: Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ.

SHAUKAT HAYAT alias FATEH MUHAMMAD--Appellant

versus

STATE--Respondents

Crl. A. No. 126-J & M.R No. 104 of 2009, heard on 25.3.2013.

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--“Medical evidence is exactly in line with ocular account”--Ocular account--Motive--Divorce--Sufficient incriminating evidence--Medical evidence--Benefit of doubt--Sentence altered--It is case of complainant that appellant inflicted two churri blows on deceased, hitting him on left side of chest and thereafter gave churri blows consecutively on his left biceps, left armpit and left flank--(PW.3) who conducted post mortem examination on dead body of deceased in post mortem examination report--The motive behind occurrence as alleged in FIR was that deceased had divorced Mst. Parveen maternal cousin of appellant and because of said grudge appellant committed murder of deceased by inflicting churri blows whereas complainant (PW.4) has stated in her cross-examination that wife of deceased had four brothers--She further stated that brothers of complainant and appellant never complained of showed anger over fact of divorce prior to occurrence--In circumstances there was no reason for appellant to commit murder of deceased because of this motive--There is sufficient incriminating evidence on record in form of straightforward and confidence inspiring ocular acount furnished by complainant (PW.4) and (PW.5), fully supported by medical evidence furnished (PW.3), even if evidence motive and recovery of Churri (P.2) at instance of appellant are excluded from consideration to maintain conviction of appellant under Section 302 (b), PPC awarded by trial Court, which is accordingly maintained--Held: It is well recognized principle of law that accused is entitled for benefit of any doubt as an extenuating circumstance, while deciding question of sentence--While maintaining conviction under Section 302(b), PPC, we alter sentence of appellant from punishment of death to imprisonment for life--The amount of compensation and sentence of imprisonment in default thereof as ordered by trial Court is maintained.                 

                                              [Para 12, 14, 15, 16 & 17] A, B, C, D & E

2009 SCMR 1188.

Mr. Abid Hussain, Advocate/Defence Counsel appointed at State for Appellant.

Mr. Arshad Mahmood, Deputy Prosecutor General for State.

Mr. Imtiaz Hussain Khan Baloch, Advocate for Complainant.

Date of hearing: 25.3.2013.

Judgment

Manzoor Ahmad Malik, J.--This judgment shall dispose of Criminal Appeal No. 126-J of 2009 titled as “Shaukat Hayat alias Fateh Muhammad versus The State” and Murder Reference No. 104 of 2009 titled as “State versus Shaukat Hayat alias Fateh Muhammad” as both these matters have arisen out of the same case i.e. FIR No. 374/2008 dated 13.06.2008, offence under Section 302, PPC, registered at Police Station Satellite Town, District Sargodha.

2. Shaukat Hayat alias Fateh Muhammad (appellant) was tried by the learned Additional Sessions Judge Sargodha in the above mentioned case. He was convicted vide judgment dated 23.02.2009, under Section 302(b), PPC and sentenced to death. He was also directed to pay Rs. 1,00,000/-(rupees one lac only) as compensation to the legal heirs of Muhammad Shahbaz (deceased) and in default whereof to undergo simple imprisonment for further six months. The learned trial Court has sent Murder Reference No. 104 of 2009 for confirmation or otherwise of the sentence of death awarded to Shaukat Hayat alias Fateh Muhammad (conviet) as required under Section 374, Code of Criminal Procedure.

3. Precisely, facts of the case, as contained in P.I.R. (Exh.PE/1), registered on the basis of statement (Exh.PE) made by Mst. Nasreen Akhtar (PW.4), are that complainant’s side consisted of four sisters and one brother namely Shahbaz aged about 24/25 years. Three sisters including complainant were married in Faisalabad whereas fourth sister namely Mst. Naseem was married in Lahore. 5/6 years prior to occurrence, Muhammad Shahbaz brother of the complainant was married to Mst. Parveen daughter of Khushi Muhammad, caste Kamboh, resident of Chak No. 115 Southern, situated within the jurisdiction of Police Station Ata Shaheed and out of the said wedlock a daughter namely Kiran aged 4% years and a son namely Mustafa aged about 3½ years were born who were alive. About three years before the occurrence, Muhammad Shahbaz brother of the complainant due to strained relations divorced his wife Mst. Parveen Bibi and his in-laws filed a suit for recovery of dowry articles in Civil Court, Sargodha which was pending adjudication. ¾ days prior to the occurrence, complainant had come to see her parents at Street No. 14 Jinah Colony, Sargodha. Complainant was a matriculate. On 13.06.2008 at 10:30 p.m. Shaukat son of Ferozdin, caste Kamboh, resident of Chak No. 88 Southern, situated within the jurisdiction of Police Station Saddar Sargodha, maternal cousin (mamoonzad) of complainant came as a guest. After serving him supper complainant and her mother Mst. Hameeda Bibi, maternal grandfather Ibrahim son of Rehmat Ali and brother Shahbaz were chatting with Shaukat while laying on the cots and a bulb was on in the Courtyard. At about 2:30 am. (night) all of a sudden Shaukat Ali (appellant) got out a churri from his folding (dab) of shalwar and raised a lalkara to Shahbaz that he would teach a lesson for divorcing his maternal cousin (khalazad) namely Mst. Parveen and inflicted two churri blows to Shahbaz brother of the complainant while he was laying on the cot, hitting him on the left side of chest and thereafter gave churri blows one after another on left biceps, left armpit and left flank. Shahbaz fell down from the cot while writhing. Shaukat (appellant) while brandishing churri fled away from the spot. When complainant and his mother attended Muhammad Shahbaz he had succumbed to the injuries at the spot. Motive behind the occurrence as alleged in the FIR was that Muhammad Shahbaz (deceased) had divorced Mst. Parveen maternal cousin of the Shaukat and because of said grudge he (appellant) committed the murder of Shahbaz by inflicting churri blows. The occurrence was witnessed by Mst. Hameedan Bibi and Ibrahim besides the complainant. Complainant was about to proceed to Police Station to report the matter but in the meantime Manzoor Hussain S.I (PW.9) reached at the spot.

4. Manzoor Hussain SI/SHO (PW.9) was posted as Incharge Police Post Lari Adda of Police Station Satellite Town, Sargodha. On 13.06.2008 after receiving information about the occurrence he reached at the spot and recorded the statement (Exh.PE) of Mst. Nasreen Akhtar and sent the same to Police Station for registration of FIR. Thereafter he inspected the dead body of Muhammad Shahbaz (deceased) and prepared injury statement (Exh.PC), inquest report (Exh.PD). He secured blood stained earth from the place of occurrence vide memo. (Exh.PH). He also took into possession blood stained cot (P.3) from the spot vide memo. (Exh.PG) and last worn clothes of the deceased viz shalwar (P.1) vide recovery memo. (Exh.PK). He also got prepared scaled site-plan (Exh.PA and Exh.PA/1) by Muhammad Saleem Draftsman (PW.2). He arrested Shaukat Hayat (appellant) on 29.06.2008 and obtained his physical remand. On 03.07.2008 appellant allegedly got recovered churri (P.2) vide recovery memo. (Exh.PF). Thereafter he got prepared the challan and submitted the same in the Court of competent jurisdiction.

5. The appellant was summoned by the learned Additional Sessions Judge Sargodha to face the trial. Copies of the documents, as required under Section 265-C, Code of Criminal Procedure, were provided to him and formal charge under Sections 302, PPC was framed against him on 05.01.2009 to which he pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as nine witnesses, in all. Ocular account was furnished by Mst. Nasreen Akhtar complainant (P.W.4) and Mst. Hameeda Bibi (PW.5). Medical evidence was furnished by Dr Muhammad Iqbal (P.W.3). Mst. Nasreen Akhtar (PW.4) and Sagheer Ahmad (PW.6) witnessed the alleged recovery of churri (P.2) at the instance of appellant which was taken into possession vide recovery memo. (Exh.PF). Manzoor Hussain SI/SHO (PW.9) investigated this case and while appearing in the witness box, narrated the various steps taken by him during the course of investigation. Rest of the witnesses are formal in nature. Learned DDPP gave up PWs namely Ibrahim, Munawar Khan, Shahnawaz S.I, Muhammad Saleem being unnecessary and PW Ijaz Ahmad being on medical leave and closed the prosecution case on 18.02.2009 after tendering in evidence the report of Chemical Examiner (Exh.PL) and that of Serologist (Exh.PM). Statement of the appellant was recorded under Section 342, Code of Criminal Procedure on 20.02.2009 wherein he refuted all the allegations of prosecution. To a question as to why the case against him and why the prosecution witnesses had deposed against him, Shaukat Hayat alias Fateh Muhammad (appellant) replied as under:

“I was on very good terms with the deceased and his parents. I have been involved in this case because it was a blind murder in the first place and I was roped in as accused by the complainant since I always considered her to be a negative character and I always spoke against her openly in biradari gatherings.”

The appellant did not appear as his own witness as provided under Section 340(2) Code of Criminal Procedure nor did he produce any evidence in his defence.

6. After conclusion of the trial, the learned trial Court convicted and sentenced the appellant as detailed above. Hence, this appeal and murder reference.

7. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that there is a delay of two hours in reporting the matter to the Police without there being any plausible explanation whereas distance between the Police Station and the place of occurrence was just two furlongs, which casts serious doubts about the presence of witnesses of ocular account at the spot, that both the witnesses of the ocular account i.e. Mst. Nasreen Akhtar (PW.4) and Mst. Hameeda Bibi (PW.5) are interested witnesses as they are closely related inter se as well as to the deceased; that presence of Mst. Nasreen Akhtar complainant (PW.4) at the spot is highly improbable and unnatural as she was the resident of Street No. 4 Chamanzar Colony, Faisalabad whereas the occurrence took place at Jinah Colony Sargodha; that in the FIR complainant has stated that she came to the house of her parents ¾ days prior to occurrence, whereas while appearing before the learned trial Court she changed her version by stating that she had come to the house of her mother Mst. Hamida Bibi about seven days prior to the occurrence; that motive behind the occurrence as alleged in the FIR was that Muhammad Shahbaz (deceased) had divorced Mst. Parveen maternal cousin of the Shaukat Hayat alias Fateh Muhammad and because of said grudge appellant committed the murder of Shahbaz by inflicting churri blows whereas Mst. Nasreen Akhtar complainant (PW.4) has stated in her cross-examination that Mst. Parveen Bibi wife of the deceased had four brothers and that in the circumstances, there was no reason for the appellant to commit the murder of Muhammad Shahbaz (deceased), that the alleged recovery of Churri (P.2) at the instance of appellant is immaterial as there is no report of Chemical Examiner or Serologist regarding churri (P.2) on the record; that the case of prosecution is of doubtful nature and the appellant is entitled to acquittal.

8. On the other hand, learned Deputy Prosecutor General, assisted by learned counsel for the complainant, opposes this appeal on the grounds that there is no conscious or deliberate delay in reporting the matter to the police if the circumstances of the case such as the time of occurrence are taken into consideration as the occurrence took place at night time and no male member except Ibrahim maternal grandfather of the complainant being infirm and old was present in the house; that presence of Mst. Hameeda Bibi (PW.5) at spot is established from the fact that she was resident of the same house where this incident took place, therefore, her presence in her own house at the odd hours of night was quite natural. So far as presence of Mst. Nasreen Akhtar complainant (PW.4) at the spot is concerned, learned counsel contends that the said witness stated in the FIR that she had come to the house of her parents ¾ days prior to the occurrence, therefore, her presence at the spot cannot be considered unnatural or improbable as it is the custom of our society that after the marriage the daughters pay frequent visits to the house of their parents; that both these witnesses have no enmity against the appellant for his false implication in this case; that though both the witnesses of the ocular account are related inter se as well as to the deceased but at the same time they are also related to the appellant as well; that even otherwise substitution in such like cases is a rare phenomenon as kith and kin of the deceased will not implicate an innocent person by letting off the real culprits; that the motive has also been proved; that the medical evidence is exactly in line with the ocular account; that the prosecution case is further corroborated by the recovery of churri (P.2) which was taken into possession through recovery memo. (Exh.PF); that there is no mitigating circumstance in this case, therefore, the appellant does not deserve any leniency even in the quantum of sentence,

9. We have heard learned counsel for the appellant, learned counsel for the complainant as well as the learned Deputy Prosecutor General for the State at a considerable length and have also gone through the record with their able assistance.

10. This unfortunate incident, wherein Muhammad Shahbaz brother of the complainant, was done to death, as per FIR (Exh.PE/1) took place on 13.06.2008 at 2:30 a.m. (night) in the area of Jinah Colony situated within the jurisdiction of Police Station Satellite Town, District Sargodha and the matter was reported to the Police by Mst. areen Akhtar (PW.4) at 4:30 a.m. (night) i.e. after two hours of the occurrence. It is mentioned in the FIR that only women folk along with Ibrahim maternal grandfather of complainant (who was infirm being of advanced age) were present in the house at the time of occurrence. Considering all the circumstances of the case, especially the time of occurrence coupled with the social status of the complainant side we are of the view that there was no conscious or deliberate delay in reporting the matter to the Police.

11. The ocular account was furnished by Mst. Nasreen Akhtar complainant (PW.4) and Mst. Hameeda Bibi (PW.5). The presence of Mst. Hameeda Bibi (PW.5) at the spot is established from the fact that she was resident of the same house where this incident took place, whereas Mst. Nasreen Akhtar complainant (PW.4) had come to the house of her parents prior to the occurrence, therefore, her presence at the spot cannot be considered unnatural or improbable as it is instinctive nature for a daughter to visit her parents house after marriage. We further noted that there was no enmity between the parties to prompt the complainant or the other witness of the ocular account to falsely depose against the appellant. Even otherwise substitution in such like case is a rare phenomenon as kith and kin of the deceased will not implicate an innocent person by letting off the real culprits. The argument of learned counsel for the appellant that Mst. Nasreen Akhtar has changed her version while appearing before the learned trial Court by stating that she had come to the house of her mother seven days prior to the occurrence does not hold much water as the said change in version does not amount to improvement rather at the most it is just a discrepancy which might have crept into the record by afflux of time.

12. It is the case of the complainant that Shaukat Hayat alias, Fateh Muhammad (appellant) inflicted two churri blows on Muhammad Shahbaz (deceased), hitting him on the left side of chest and thereafter gave churri blows consecutively on his left biceps, left armpit and left flank. Dr Muhammad Iqbal (PW.3) who conducted post mortem examination on the dead body of Muhammad Shahbaz (deceased) in the post mortem examination report (Exh.PB) noted the following injuries:

1.       A incised wound 4 cm x 2 cm on middle part of front of left chest inner side 6 cm from left nipple 3 cm from midline.

2.       Incised wound 5 cm x 2½ cm on front of lower part of middle of left chest 5 em below left nipple and 4 cm from midline.

3.       Incised wound 8½ cm x 5 cm on front of inner and lower part of left arm, 4 cm above left elbow.

4.       Incised wound 1½ x 1 cm on left axilla.

5.       Incised wound 5 x 3 cm on the back of left upper region.

Therefore, we are of the view that medical evidence is exactly in line with the ocular account.

13. So far as alleged recovery of churri (P.2) at the instance of appellant which was taken into possession vide recovery memo. (Exh.PF) is concerned the same is immaterial as no report regarding churri (P.2) either by the Chemical Examiner or of Serologist is available on record.

14. The motive behind the occurrence as alleged in the FIR was that Muhammad Shahbaz (deceased) had divorced Mst. Parveen maternal cousin of the Shaukat Hayat alias Fateh Muhammad and because of said grudge appellant committed the murder of Shahbaz by inflicting churri blows whereas Mst. Nasreen Akhtar complainant (PW.4) has stated in her cross examination that Mst. Parveen Bibi wife of the deceased had four brothers. She further stated that brothers of Mst. Parveen Bibi and the appellant never complained of showed anger over the fact of divorce prior to the occurrence. In the circumstances there was no reason for the appellant to commit the murder of Muhammad Shahbaz (deceased) because of this motive. Therefore the motive alleged by the prosecution does not appeal to common sense and we are of the view that prosecution has failed to prove the motive part of the occurrence.

15. There is sufficient incriminating evidence on the record in the form of straightforward and confidence inspiring ocular acount furnished by Mst. Nasreen Akhtar complainant (PW.4) and Mst. Hameeda Bibi (PW.5), fully supported by the medical evidence furnished by Dr. Muhammad Iqbal (PW.3), even if the evidence motive and recovery of Churri (P.2) at the instance of appellant are excluded from consideration to maintain the conviction of Shaukat Hayat alias Fateh Muhammad appellant under Section 302 (b), PPC awarded by the learned trial Court, which is accordingly maintained.

16. However, we have noted that it is not a case of capital punishment for the following reasons:-

(a)      Recovery of Churri (P.2) is not helpful for the prosecution because of the reasons as elaborated in para 13 above.

(b)      Motive has not been believed by us as discussed in para 14 above.

(c)      The circumstances suggest that there was no serious or deep rooted enmity between the parties and the occurrence took place at the spur of moment as it is the case of prosecution that on 13.06.2008 at 10:30 p.m. appellant came in the house of complainant and soon after his arrival he was served meal. Thereafter complainant, her mother Mst. Hameeda Bibi, maternal grandfather Ibrahim and Muhammad Shahbaz (deceased) remained busy in chatting with Shaukat Hayat alias Fateh Muhammad (appellant) till 2:30 a.m. Something else happened prior to the occurrence which has not been brought on record.

Moreover, by now it is well recognized principle of law that the accused is entitled for the benefit of any doubt as an extenuating circumstance, while deciding question of sentence. We, here, respectfully refer to an observation of the Hon’ble Supreme Court of Pakistan in the case of “Mir Muhammad alias Miro versus The State” (2009 SCMR 1188 wherein at page 1191, the Hon’ble Supreme Court of Pakistan has emphasized as under:-

“9.      It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the part of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence.”

17. Therefore, while maintaining the conviction under Section 302(b), PPC, we alter the sentence of Shaukat Hayat alias Fateh Muhammad (appellant) from punishment of death to imprisonment for life. The amount of compensation and the sentence of imprisonment in default thereof as ordered by the learned trial Court is maintained. Appellant is also extended the benefit of Section 382-B, Code of Criminal Procedure. With the above modification in the quantum of sentence Criminal Appeal No. 126-J of 2009 is dismissed.

18. Murder Reference No. 104 of 2009 is answered in the NEGATIVE and the sentence of death awarded to Shaukat Hayat alias Fateh Muhammad (convict) is NOT CONFIRMED.

(A.A.K.)          Appeal dismissed