While computing period of limitation, Intervening period of summer vacations has to be excluded

 PLJ 2002 Peshawar 151 [D.I. Khan Bench]

Present: qazi ehsanullah qureshi, J. ZULFIQAR-Petitioner

versus

MUHAMMAD JAN-Respondent C.R. No. 134 of 2001, decided on 21.1.2002.

 Civil Procedure Code, 1908 (V of 1908)--

—-O.V, Rr. 16, 18 & 19-O.LX, R. 13 & Ss. 12(2) & 115-Summons were not served in accordance with the mode prescribed in C.P.C.~Effect—No endorsement on the back of the summons indicated as to why defendant was not served at his home address as given in the plaint and why he was served in the B.C. Office and who had indemnified him and in whose presence he was served-Trial Court before passing ex-parte decree and before ordering ex-parte proceedings had not examined process server on oath which was mandatory legal requirement-Appellate Court while disposing of appeal did not examine as to whether trial Court while
proceeding ex-parte had acted in accordance with relevant provisions of law—Appellate Court treated ex-parte application to be one under S. 12(2)
C.P.C. and ignored the fact that such application could be. filed within three years and not within thirty day-Courts below failed to understand
that while computing period of limitation, intervening period of summer vacations has to be excluded-Judgments and decrees of Courts below
were set aside and case was remanded to trial Court for decision on merits by giving them opportunity to contest the case.                                                                                               [P. 154] A

Mr. Liaqat All Khan Marwat, Advocate for Petitioner. Mr. Abdul Aziz Khan Dalokhel, Advocate for Respondent. Date of hearing: 21.2.2002.

judgment

The petitioner has moved this Court through the instant revision petition for setting the ex-parte judgments and decrees for Rs. 40,000/- dated 29.4.2000 and dismissal order dated 25.4.2001 on application for setting aside the ex-parte decree passed hy the learned Senior Civil Judge Lakki, and also dismissal of appeal vide order dated 6.11.2001 of the learned District Judge Lakki.

2.   The controversy in the matter is that initially respondent had  filed a suit for recovery of Rs.  40,000/- in connection with the sale
transaction of landed property, which according to the plaintiff/respondent despite payment of the entire sale consideration, the petitioner had failed to

. transfer the suit land in his name. The learned trial Court after issuance of notice and its receipt as served proceeded against ex-parte, recorded ex-parte evidence and decreed the suit as prayed for vide judgment and decree dated 29.4.2000 in favour of the respondent against the petitioner. Subsequently, when the petitioner came to know during the execution proceedings about the ex-parte decree, he moved the Court for its setting aside but the said application was dismissed on 25.4.2001. Aggrieved therefrom, the petitioner filed an appeal before the learned District Judge Lakki which too was dismissed on 6.11.2001. Hence this revision.

3.  The learned counsel for the petitioner, inter alia, contended that the petitioner was not properly served during the trial proceedings in the
manner and mode prescribed under the CPC. There is an endorsement on back of the summon by the process-Server that service on the petitioner was
affected at D.C. Office. It is un-understandable and no such reasons are given on the summon that why the petitioner has not been served on his home
address. It also does npt contain that how the petitioner was identified at D.C. office. The procedure under Rule 18 CPC regarding service has not
been adopted by the learned -trial Court who has proceeded in the matter in great hurry and has dealt the matter summarily. He next argued that
execution petition was filed by the respondent/plaintiff after obtaining ex parts decree on 12.7.2000 which was fixed for hearing on 31.7.2000. It is
presumed that the petitioner in the execution proceedings might have been served between 12/7/2000 and 31/7/2000. Be that as it may, he is served on

12.7.2000 ------  in the circumstances of the case, even than thirty days expires on 12.8.2000 which was month of August and Courts were closed due to Summer Vacations till 31.8.2000. Under Section 4 of the Limitation Act, it is provided that when the Courts are closed, the limitation period is to be reckoned w.e. from the opening of the Court and the period of vacations is not to be counted for the purpose of limitation. So, the petitioner promptly filed an application for setting aside the ex-parte decree on 1.9.2000 which is well within time, hence the learned trial Judge mis-construed and mis­conceived the legal aspect of the matter and had not appreciated the delicacy of the situation.

4.            The learned counsel for respondents opposed the arguments of the learned counsel for the petitioner with full force and submitted that the
petitioner was served properly strictly according to law and the learned trial Judge after due reasonable diligence proceeded ex-parte followed by a decree
against the petitioner. The judgments/decrees impugned herein are perfectly in order and the petitioner had failed to point out any jurisdictional error,
illegalities and irregularities if committed by the Courts below, so as to warrant interference by this Court in exercise of its revisional jurisdiction.

5.            I have gone through the record with the able assistance of the learned counsel for the parties. Let the petition be thrashed out in view of
the provisions meant for the purpose. Order 5, Rule 16 CPC envisages as under:--

"16. Persons served to sign acknowledgment.-Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgement of service endorsed on the original summons.""

Order 5, Rule 18 CPC reads as under:

18. Endorsement of time and manner of serw'ce.--The servicing officer shall in all cases in which the summons has been served under Rule 16, endorse or annex or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served and the name and the address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons."

Order 5, Rule 19 CPC speaks as below:

Rule 19. Examination of the Serving 0/7Icer.--"Where a summon is returned under Rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit and shall either declare that the summons has been duly served or order such service as it thinks fit."

6.   The bare reading of the above mandatory provisions of the Code of Civil Procedure 1908 provides complete guidelines for the Courts and
Process-Serving Agencies. It says that in all cases in which summons have been served under Rule 16 CPC mentioned above, the Process-Server shall
require the signature of the person to whom the copy is so delivered or endorse on the original summons his report thereon. Rule 18 ibid further  directs the manner of service in which the same is served, to mention the name and address of the person (if any) and identify the person served and witnesses of the delivery or tender of the summons. Similarly, Rule 19 CPC lays down the procedure for the Courts that where a summon is returned under Rule ,17 aforesaid duly verified, the serving officer shall be examined on oath and may make such inquiry in the matter as it thinks fit and shall either declare that the summons is duly served or as it thinks fit and after his full satisfaction to proceed further.

7.         In the instant case, endorsement on the back of summons does not indicate any such method that the mode of service is affected in line with the above provisions of law. There is no mention of identifying the person served, as to who had identified the petitioner at B.C. office, no witness is cited that in whose presence the service is affected, there is no endorsement on the back of the summons that as to why the petitioner is not served at his home address given in the plaint, and that what were the circumstances led him to locate the petitioner at B.C. office. Similarly, the Court before proceeding ex-parte had not examined the process-server on oath. The appellate Court had also treated the appeal before him off-handedly without applying his mind to the mandatory provisions of law. He was so careless that he had not even examined that under what provision of law, the application for setting aside the ex-parte decree was moved by the petitioner. He had treated such application U/S. 12(2) CPC and dismissed the appeal perhaps he was not conversant with the law on the subject that in case the
application of the petitioner was filed U/S. 12(2) CPC, the time prescribed thereof is three years and not thirty days, as repeatedly held by the apex Court, as falls under Article 181 of the Limitation Act. It is also noticed with serious concern that both the Courts below have not appreciated the fact that after excluding the vacation period, the time is to be counted (thirty days) after excluding intervening period of Summer vacations. As such, in my view, the Courts below have not dealt
with the matter from all legal angles and disposed it of against the all norms of justice.

9.    In the wake of above discussion, I am inclined to accept this  revision petition, set aside the impugned judgments and decrees of the two
Courts below and remand the case to the trial Court for trial denovo. The parties shall be provided with^an opportunity to contest the case which shall

be ----  decided on merits.............. The Courts are required to dispense substantial justice instead of disposal on mere technicalities. No order as to costs.

(A.P.)    Case remanded

Conviction under section 22 of Emigration Ordinance 1979

 PLJ 2023 Cr.C. (Note) 125

[Lahore High Court, Lahore]

Present: Miss Aalia Neelum, J.

MUHAMMAD NAEEM-UL-HAQ--Appellant

versus

STATE, etc.--Respondents

Crl. A. No. 933 of 2014, heard on 11.5.2022.

Emigration Ordinance, 1979 (XVIII of 1979)--

----S--22--Conviction and sentence--Challenge to--Prayed for reduction in sentence--High Court feels that appellant deserves lenient treatment as appellant was first offender--Purpose of criminal law justice system is not only to punish an individual but also to reform him--In determining question of proper punishment in a criminal case, Court has to give weight to degree of culpability of accused, its effect on others and desirability of showing any leniency in matter of punishment in case--An act of balancing is what is needed in such case, weighing one against other: a balance between interest of individual and concern of society--Imposing a hard punishment on accused serves a limited purpose but at same time, it is to be kept in mind that relevance of deterrent punishment in matters of serious crimes affecting society should not be undermined--Within parameters of law, an attempt has to be made to afford an opportunity to individual to reform himself and lead life of a normal, useful member of society and make his contribution in that regard--Denying such opportunity to a person who has been found to have committed offence in facts and circumstances placed on record would only have a hardening attitude towards his fellow beings and towards society at such, within permissible limits of
law--Ends of justice will be served by maintaining conviction of appellant inflicted by learned trial Court on him but reducing sentence to period already undergone by appellant--However, amount of fine and sentence in default thereof will remain intact--Appellant is directed to deposit amount of fine awarded by trial Court within 01-month--After depositing fine, bail bonds submitted by appellant stand discharged.  [Para 7 & 8] A & B

Syed Samar Raza, Advocate for Appellant.

Mr. Shahzad, SI, FIA with record for State.

Mian Tariq Hussain. Advocate for Complainant.

Date of hearing 11.5.2022.

Judgment

The appellant, Naeem-ul-Haq son of Allah Bukhsh, Caste Gondal, resident of K.M. international Flat No. 1, Madina Pak Shams Abad, Murree Road, Rawalpindi presently residing at Shahpur, District Sargodha, the appellant was involved in case FIR No. 236 of 2012 dated 06.11.2012, registered under Section 17/22 of Emigration Ordinance 1979, at Police Station FIA, District Faisalabad and tried by the learned Judge Special Court (Central), Faisalabad. The learned trial Court seized with the matter in terms of judgment dated 06.05.2014, convicted the appellant under Section 17 of the Emigration Ordinance, 1979 and sentenced him to undergo imprisonment for 04-years, with the direction to pay Rs. 10,000/- as fine and in case of default in payment thereof, to further undergo 03-months S.I. The appellant was also convicted under Section 22 of the Emigration Ordinance, 1979 and sentenced to undergo rigorous imprisonment for 04-years. with the direction to pay Rs. 10,000/- as fine and in case of default in payment thereof, to further undergo 03-monthsf S.I. The appellant was also sentenced to pay Rs. 7,000,00/- under Section 9 of Criminal Law Amendment Act, 1958 to the complainant. Both the sentences awarded to the appellant would run concurrently. The benefit of Section 382-B, PPC was also extended in favour of the appellant.

2. Feeling aggrieved by the judgment of the learned trial Court, the appellant has assailed his conviction through filing instant appeal bearing Crl. Appeal No. 933 of 2014.

3. The prosecution story, in brief, as per contents of F.I.R. is that the appellant being unauthorized overseas employment promoter, posed himself to be so and received an amount of Rs. 7,00,000/- from the complainant in order to send his son to America for employment. Hence, this case.

4. At the very outset, learned counsel for the appellant has opted not to object conviction of the appellant, however, prayed for reduction in his sentence. Further stated that the appellant is the first offender and has already undergone more than one year, so, a lenient view may be taken.

4A. On the other hand, learned counsel for the complainant has shown no objection upon reduction of sentence of the appellant.

5. Heard. Record perused.

6. As the learned counsel for the appellant has not opted to assail conviction rendered by the learned trial Court against the appellant, therefore, this Court does not feel it necessary to discuss in detail the prosecution evidence available on the record. However, this Court finds that the prosecution had undoubtedly proved the factum of occurrence. This Court does not find material contradictions in the statements of prosecution witnesses. It is also proved from the evidence on record that the prosecution witnesses i.e. Zahid Latif
(PW-1) the complainant and Tassadaq Ali (PW-2) have remained consistent, despite lengthy cross-examination. I am persuaded to hold that the appellant was rightly convicted and sentenced by the learned trial Court.

7. Keeping in view facts and circumstances of the case, this Court feels that the appellant deserves lenient treatment as the appellant was first offender. Purpose of criminal law justice system is not only to punish an individual but also to reform him. In determining the question of proper punishment in a criminal case, the Court has to give weight to the degree of culpability of the accused, its effect on others and the desirability of showing any leniency in the matter of punishment in the case. An act of balancing is what is needed in such case, weighing the one against the other: a balance between the interest of the individual and the concern of the society. Imposing a hard punishment on the accused serves a limited purpose but at the same time, it is to be kept in mind that relevance of deterrent punishment in matters of serious crimes affecting society should not be undermined. Within the parameters of the law, an attempt has to be made to afford an opportunity to the individual to reform himself and lead the life of a normal, useful member of society and make his contribution in that regard. Denying such opportunity to a person who has been found to have committed offence in the facts and circumstances placed on record would only have a hardening attitude towards his fellow beings and towards society at such, within the permissible limits of law.

8. Consequently, the ends of justice will be served by maintaining the conviction of the appellant inflicted by the learned trial Court on him but reducing the sentence to the period already undergone by the appellant. However, the amount of fine and sentence in default thereof will remain intact. The appellant is directed to deposit amount of fine awarded by the trial Court within 01-month. After depositing the fine, bail bonds submitted by the appellant stand discharged.

9. With the above observations, Criminal Appeal No. 933 of 2014 stands disposed of.

(A.A.K.)                                                                                               

 

Mediation Practice Direction (Civil) Rules, 2023

 Mediation Practice Direction (Civil) Rules, 2023

To regulate the practice and procedure of Courts in relation to

Mediation in Civil Disputes

Mediation as a method of alternate dispute resolution is given statutory recognition by the Alternate Dispute Resolution Act 2017 (the Act). In furtherance of the Act, rules are being notified from time to time.

For mediation as a sub-specialty of alternate dispute resolution, the following rules have thus far been notified by the Federal Government:

(i) Alternate Dispute Resolution (Accreditation) Rules, 2023.

(ii) ADR Mediation Accreditation (Eligibility) Rules, 2023.

In furtherance of the supervisory function of the High Court, the Islamabad High Court issues these rules in the exercise of its powers under Article 202 of the Constitution of the Islamic Republic of Pakistan, 1973, to be known as the Mediation Practice Direction (Civil) Rules 2023, and to be practiced by all Courts within the jurisdiction of the Islamabad High Court.

-----------------------------------------------------------------------------------------------------------

Contents

1 Notified Mediators; Notified ADR Centres

2 Consent to Mediate

3 Decree on Settlement Agreement

4 Court-referral without a suit

5 Inconclusive Mediation

6 Mediation Register

7 Annex – Mediation Consent Form

1 Notified Mediators; Notified ADR Centres: (1) Except for sufficient cause recorded in the order referring the dispute to mediation, Court-referred mediations in civil disputes should be referred for mediation by mediators notified under the Act, practising individually or under the aegis of an ADR Centre notified under the Act.

(2) The expression ‘Mediator’ henceforth in this Practice Direction means a mediator notified under the Act, practising individually or under the aegis of an ADR Centre notified under the Act.

(3) Notwithstanding sub rules (1) & (2), mediations in family cases may be referred to ‘agreed upon persons’1, who are not notified mediators. Such agreed upon mediators should preferably be the trusted elders of the families.

2 Consent to Mediate: (1) On the first appearance of a party, the Court shall direct such party to sign and file a Mediation Consent Form (per the Annex) for the parties’ respective stances on mediation to be brought on record.

(2) The Court shall also cause the parties to sign and file a Mediation Consent Form in cases already filed where the recording of evidence has not commenced. For the avoidance of doubt, the Court shall on the parties’ joint request refer the parties to mediation regardless of the stage the case has reached.

(3) Where the parties agree to mediate, the Court will refer the parties to mediation and the parties’ agreement to mediate shall be the foremost consideration for the Court.

(4) The Court’s assessment of ‘impossibility of mediation success’ and ‘intricacy of a question of fact or law’ per sections 3(1)(b) and (c) of the Act should entail a very high threshold of Court’s satisfaction to lean against mediation and, barring exceptionally strong reasons, should not override the parties’ willingness to mediate, it being understood that the essence of mediation process is for the parties to be able to find a workable solution regardless of the underlying intricacies of fact and law.

(5) Where a party declines to mediate, the order sheet will reflect the Court’s observations on the reasonableness of the refusal to mediate, and the order on costs at the conclusion of the trial will factor in an unreasonable refusal to mediate, not as a penalty, but as a reasonable estimate of the litigation costs the consenting party would have avoided if the case had gone to mediation, basing such estimate on the statement of litigation costs filed by the parties under the Costs of Litigation Act, 2017. This order will be made regardless of the party refusing mediation being successful in obtaining judgment in its favour2.

1 Section 5 of the Alternate Dispute Resolution Act, 2017

2 Section 35(1)(iii), Costs of Litigation Act, 2017

3 Decree on Settlement Agreement: (1) When mediation leads to a settlement, the settlement shall be reduced to writing as a Settlement Agreement, duly witnessed, and signed by the mediator and by the parties or their duly authorized representatives. It is mandatory to file the Settlement Agreement with the Court for Court-referred mediations3, and optional for non-Court-referred mediations4.

(2) The Court shall on notice to the parties pass judgment and decree in terms of the Settlement Agreement5, recording in the decree that it was passed in terms of the Settlement Agreement without formal adjudication by the Court and is executable6 as a decree by consent.

4 Court-referral without a suit: (1) Court-referred mediations include mediation referrals by Court on joint application by the parties without a suit filed by either party7. Such applications are to be registered as suits for record management purposes.

(2) The parties must demonstrate to the Court for their application being considered that they have applied, without success, to all notified ADR Centres for mediation, and the Courts shall not be requested, without good cause, to perform this function of ADR Centres.

5 Inconclusive Mediation: If mediation in a pending case does not lead to a Settlement Agreement within the timeframe stipulated in the Act, the case will be re-listed in the cause list of the Court for judicial proceedings to resume. It is clarified that there is no bar on either party or the Court proposing mediation again and the parties resorting to mediation at a later stage during the proceedings.

6 Mediation Register: Each Court will maintain a register of mediation referrals and will transmit the following particulars to the Registrar of the High Court on a monthly basis by the first week of the succeeding month:

i. number of mediation referrals, with referral dates,

ii. number of applications received and disposed of under section 8 of the Act

iii. number of successful mediations, reckoned from the date of decree.

Jurisdiction of Federal Ombudsman is limited

 PLJ 2014 Islamabad 4

Present: Shaukat Aziz Siddiqui, J.

CH. MUHAMMAD YASIN--Petitioner

versus

WAFAQI MOHTASIB (OMBUDSMAN), etc.--Respondents

W.P. No. 1356 of 2013, decided on 26.4.2013.

Wafaqi Muhtasib (Ombudsman) Order, 1983--

----Art. 9--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Scope of jurisdiction--Function and power--Wafaqi Muhtasib had no jurisdiction to entertain complaint and to pass order as jurisdiction of Wafaqi Muhtasib is limited when controversy had already been settled by Courts of law--Validity--Wafaqi Muhtasib shall not have jurisdiction before Court of competent jurisdiction, which relates to external affairs of jurisdiction, which relates to external affairs of Pakistan or relates to matters connected with defence of Pakistan--In instant case controversy about subject-matter of petition had already been settled upto Supreme Court and Wafaqi Muhtasib had absolutely no jurisdiction to pass the impugned order.          [P. 8] A

Syed Naeem Bukhari, ASC and Mr. M. Imad Khan, Advocate for Petitioner.

Mr. Muhammad Munir Paracha, ASC and Mr. Noman Munir Paracha, Advocate for Respondent No. 2.

Mr. Atta Ullah Hakim Kundi, Advocate for Respondent No. 3 (CDA).

Mr. Muhammad Ramzan Joya, Director (Admn), CDA and Mr. Muhammad Ali, Director (HRD-I), CDA for Respondents.

Date of hearing: 26.4.2013.

Judgment

Petitioner invoked the constitutional jurisdiction of this Court by way of filing instant writ petition with the following prayer:--

"(a)      The complaint before Respondent No. 1 (Annexure A1) being outside the jurisdiction of said respondent in respect of a property in respect of which judicial decisions are in the field have attained the finality, be quashed.

(b)        The impugned order Annexure A be set aside as being without legal authority and of no legal effect.

(c)        Respondent No. 1 be directed to adhere to the directives of the Supreme Court of Pakistan and refrain from proceeding further in the matter.

(d)        Any other writ relief, remedy deemed just and/or appropriate be issued, granted or allowed".

2. Vide short order dated 26.04.2013, instant petition was allowed in the following terms:--

"(i)       In the peculiar circumstances, Respondent No. 1 is not vested with the authority to assume the jurisdiction in the subject matter, therefore, all the proceedings initiated before the learned Respondent No. 1 by Respondent No. 2 are illegal, without jurisdiction, besides the mandate of law, dictums laid down by the Hon'ble Supreme Court of Pakistan, offensive to the fundamental rights and rarity, therefore, proceedings and orders passed by learned Respondent No. 1 are hereby quashed.

(ii)        The Chairman, CDA i.e. Respondent No. 3 is directed to supervise the process of auction of suit premises (Petrol Pump) in accordance with PEPRA Rules and decision taken by the Staff Welfare Committee. The terms of lease may be fixed afresh in the meeting of Staff Welfare Committee which shall be attended by the Chairman, CDA. The premises be de-sealed before the auction and complete inventory report under the supervision of some responsible Member may also be prepared.".

The facts and reasons of above order are as under:

3. Precisely it is the version of the petitioner that CDA had established the Staff Welfare Committee (hereinafter will be referred as SWC) in year 1964, and leased certain properties to the SWC for utilization of the income to the welfare of the widows, retired staff, disabled and their children. Petrol Pump situated at Embassy Road G-6/4 Islamabad was also leased out to the SWC which was subleased by SWC to one S.M. Ismail for a period of 30 years w.e.f 01.01.1973 till 31.12.2002. CDA through its Board meeting dated 08.08.2000 had decided that SWC was fully competent to sublease properties leased to it without reference to the CDA Board and after the expiry of sublease period, petrol pump site should be put to open auction through transparent manner on annual basis. Thereafter the petitioner has narrated the chequered history of litigation concerning the petrol pump which the sub-lessee S.M Ismail had instituted against the SWC and others. Petitioner has further provided that all the litigation finally culminated in favour of the petitioner and even the august Supreme Court of Pakistan dismissed the various CPs filed by the sub-lessee. Petitioner has further averred that the SWC got published proclamation for the auction of the petrol pump and in the meanwhile Respondent No. 2 submitted a complaint before the Respondent No. 1, that the petitioner submitted the reply to the petition and through impugned order the Respondent No. 1 directed the maintenance of status quo due to which the auction could not be held. The petitioner has further submitted that the Respondent No 1 has no jurisdiction to interfere in the matter in hand as the august Supreme Court of Pakistan has finally settled the controversy in favour of the petitioner.

4. Learned counsel for the petitioner reiterated the contents of the petition and he has further argued that the Respondent No. 1 i.e. Wafaqi Muhtasib had no jurisdiction to entertain the complaint and to pass impugned order as the jurisdiction of the Respondent No. 1 is limited and when the controversy has already been settled by the Courts of law, therefore the impugned order of the Respondent No. 1 should be quashed.

5. Learned counsel for the respondents has opposed the contentions of the petitioner and contended that the Respondent No. 1 enjoys the powers to interfere in the cases of mal-administration and as the Respondent No. 3 has failed to run the affairs of petrol pump, therefore, the exercise of jurisdiction of Respondent No. 1 is quite lawful. Learned counsel for the respondents has prayed that instant petition be dismissed.

6. I have considered the respective contentions of the parties and also perused the available record. Before proceeding to discuss the scope of jurisdiction which the Respondent No. 1 may exercise, it is appropriate to mention the undisputed facts, that the SWC is the lease holder of the petrol pump situated at the Embassy Road G-6/4 Islamabad who had subleased the said petrol pump to the S.M. Ismail for the period of 30 years w.e.f 01.01.1973 to 31.12.2002. CDA through its Board meeting dated 08.08.2000 had authorized the SWC to further sub-lease the petrol pump on the annual basis through transparent auction without any further reference to the CDA. S.M. Ismail (tenant) had instituted a civil suit against SWC which was disposed of on 05.03.2003 with the observation that the tenant should not be ousted against due process of law, thereafter the S.M. Ismail (hereinafter be referred as tenant) filed an application for the determination of the fair rent and he also instituted a Writ Petition No. 346/2004 in the Hon'ble Lahore High Court whereby he challenged the notice of eviction, which was disposed off on 30.06.2004 with the direction to the SWC to reconsider the extension of the tenancy period. Order of the Hon'ble Lahore High Court was challenged through ICA No. 161/2004 which was allowed on 28.06.2005 and ultimately the august Supreme Court of Pakistan in CPLA No. 2577/ 2005 set aside the supra orders passed by the Hon'ble Lahore High Court through its order dated 05.10.2006. In the mean time the SWC took over the possession of the petrol pump and the pump was sealed, the tenant instituted a suit against his eviction which was dismissed on 20.06.2008. Learned appellant Court dismissed the appeal of the tenant on 14.01.2009 and a Civil Revision Petition No. 5/2009 as well as Writ Petition No. 85/2009 instituted by the tenant were also dismissed on 08.04.2009 by Hon'ble Lahore High Court. ICA against the supra order was also dismissed on 11.05.2009 and the tenant withdrew his CPLA No. 981/2009 from the August Supreme Court of Pakistan on 4.11.2009.

7. In the mean time, the petition for the determination of the fair rent of the tenant was dismissed on 09.04.2009 and the appeal of the tenant was accepted on 28.10.2009, whereas, fair rent was determined to be Rs. 100,000/- per month which tenant failed to pay. SWC challenged the order dated 28.10.2009 through Writ Petition No. 3516/2009, whereas, tenant instituted a petition u/S. 144 of Cr.P.C. which the learned Rent Controller dismissed on 27.05.2010 and appeal of the tenant was also dismissed by the appellate Court on 26.02.2011 and he instituted the Writ Petition No. 707/2011. The writ petition of the SWC No. 3516/2009 and the Writ Petition No. 702/2011 were decided by this Court in favour of the SWC on 24.06.2011. The tenant submitted the CPLA No. 1079/2011 and 1080/2011 in the august Supreme Court of Pakistan against the order of this Court dated 24.06.2011 and the august Supreme Court of Pakistan was pleased to dismiss above mentioned civil petition on 11.10.2011 thus with order of the august Supreme Court of Pakistan the litigation in the Courts exhausted.

8. Thereafter the SWC got published proclamation in the news paper for the auction of the petrol pump and Respondent No. 2 while concealing all the facts about the above mentioned litigation, submitted a petition before the Wafaqi Muhtasib and the Wafaqi Muhtasib (Respondent No. 1) issued the impugned order to maintain the status quo. The tenant has entangled the SWC in the litigation which commenced when the tenant instituted a civil suit on 05.03.2003 and that culminated when the august Supreme Court of Pakistan dismissed the CP'S on 11.10.2011. The rights, liabilities and obligations of the parties have been fully determined by the decision rendered by the Courts of law and the exercise of the jurisdiction by the Wafaqi Muhtasib i.e. Respondent No. 1 is illegal as the office of the Wafaqi Muhtasib was constituted through Establishment of the Office of the Wafaqi Muhtasib (Ombudsman) Order 1983 and Section 09 of the supra Order narrates the jurisdiction, function and power of the Wafaqi Muhtasib. In this section it is provided that the Wafaqi Muhtasib may on the complaint by aggrieved person, on the reference by the President, the Federal Government or National Assembly as the case may be or on the motion of the august Supreme Court of Pakistan or High Court made during the course of the proceedings before it or of his motion, undertake any investigation into the allegation of mal-administration on part of any agency or any of its officer or employee. Proviso of this Section provide that the Wafaqi Muhtasib shall not have jurisdiction to investigate or enquire into any matter which is subjudiced before the Court of competent jurisdiction, which relates to the external affairs of Pakistan or relates to matters connected with the defence of Pakistan. In the case in hand, the controversy about the subject matter of this petition has already been settled upto the august Supreme Court of Pakistan and as per clause A of the Section 9, the Respondent No. 1 has absolutely no jurisdiction to pass the impugned order.

(R.A.)  Petition accepted

Rights under substantive law cannot be denied on technicalities

 PLJ 2018 Cr.C. (Lahore) 169

Present: Tariq Saleem Sheikh, J.

MUHAMMAD FALAK SHER--Petitioner

versus

STATE etc.--Respondents

Crl. Revision No. 25977 of 2017, decided on 30.5.2017.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 439--Criminal Revision--Petitioner’s application for his re-examination was dismissed--Power of Court with regard to summoning of a witness or to recall or re-examine any witness already examined--While deciding a case which involved recalling of a witness by Court for re-examination in a civil suit--Held: Hon’ble Supreme Court of Pakistan held that Civil Procedure Code (CPC) consists of two parts, procedural and substantive--Procedural part consists of those provisions which are meant for process of litigation, i.e. mechanism for proceeding with trial--Excluding those provisions, rest is all substantive law--More particularly it held that provisions relating to production of evidence, examination of witnesses, their cross-examination and re- examination contained in CPC read with relevant provisions of QSO are part of substantive law--They are not procedural and thus cannot be regarded as mere “technicalities”--Section 540, Cr.P.C. and Article 133 of QSO are substantive law which confer valuable rights on parties and cannot be dubbed as technicalities--From above it follows that Court may at any stage of proceedings on its own or on request of a party recall a witness for re-examination, if interest of justice so require, to get explanation or for removal of doubt or ambiguity with respect to a fact--However, such permission cannot be given to any party to fill in lacunae in case which may cause prejudice to other party--Court may also permit introduction of a new matter in re-examination if that is necessary for just decision of case--In such eventuality adverse party has right to cross-examine witness after re-examination--Petitioner has also sought permission to tender in evidence application that he submitted to police for registration of F.I.R.--Perusal of record shows that he specifically deposed about making of this application in his examination-in-chief when he appeared as PW but did not get it exhibited--Inasmuch as said application is also vital for just decision of case, prosecution should not be made to suffer owing to omission which has been caused due to inadvertence or sheer negligence--One of reasons given by trial Court in support of its impugned Order is that Petitioner had made request at a very belated stage--This is hardly a legal ground for rejection of petitioner--Revision was allowed.   [Pp. 172, 174 & 175] A, B, C & D

PLD 2014 SC 89, 2013 AIR SC (Cri) 1746, PLD 1996 Dacca 422, 2002 CLC 1989 & AIR 2013 SC (Cri) 1564, ref.

Mr. Umar Hayat Bhatti, Advocate for Petitioner.

Ch. Muhammad Imran Raza Chadhar, Advocate for Respondent No. 3.

Mr. Nasir-ud-Din Khan Nayyer, Advocate for Respondent
No. 6.

Malik Azhar Hussain Awan, D.P.G. for State.

Date of hearing: 30.5.2017

Order

This Criminal Revision is directed against Order dated 06.05.2017 passed by the learned Additional Sessions Judge, Sangla Hill, whereby the Petitioner’s application for his re-examination was dismissed.

2.  Brief facts of the case are that the Petitioner got F.I.R. No. 340/2012 dated 02-08-2012 registered at Police Station Saddar, Sangla Hill, District Nankana, against Respondents No. 3 to 9 for offences under Sections 302/324/148/149/109, PPC. Dissatisfied with the police investigation, he subsequently filed a private complaint which is pending. The Petitioner/Complainant appeared as PW-2 and recorded his testimony whereafter other witnesses were examined and now the trial is nearing completion. On 25-04-2017, the Petitioner filed an application for his re-examination on the ground that while recording his evidence on 25-04-2015 he inadvertently omitted to depose about the supplementary statement which he made to the Investigation Officer on 03-08-2012 regarding recovery of blood-stained earth underneath the bodies of deceased Sajjad Anwar and Naseer Ahmad and injured Fazal Mehmood and Faisal alias Kakka as well as the recovery of empties and clothes of injured Fazal Mahmood. He also sought permission to adduce in evidence the application that he made to the police for registration of F.I.R. on 02-08-2012 which too was not exhibited due to oversight. The learned Additional Sessions Judge dismissed the application in question vide Order dated 06-05-2017. Hence, this petition.

3.  Learned counsel for the Petitioner contended that it was a case in which two persons lost their lives and two were seriously injured. Permission for re-examination of the Petitioner as also for production of the aforementioned application that he made to the police for registration of F.I.R. was essential for a fair and just decision of the case. He prayed that the instant petition may be accepted and the impugned order may be set aside.

4.  On the other hand, learned Deputy Prosecutor General and the learned counsel for Respondents No. 3 & 9 vehemently opposed this petition. They argued that the Petitioner seeks to fill in lacunae in the prosecution case which could not be permitted. If this petition is accepted it would cause serious prejudice to the accused persons. They prayed for its dismissal.

5.  Arguments heard. Record perused.

6.  In order to appreciate the rival contentions of the parties, it would be necessary to refer to Section 540 of the Code of Criminal Procedure, 1898, and Article 133 of the Qanoon-e-Shahadat Order, 1984 (the “QSO”). The same are reproduced hereunder for ready reference:

Section 540, Cr.P.C.

540. Power to summon material witness or examine persons present.--Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.

Article 133,Qanoon-e-Shahadat Order, 1984

133. Order of examination. (1) Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined then (if the party calling him so desires) re-examined.

(2) The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.

(3)  The re-examination shall be directed to the explanation of matters referred to in cross- examination and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine that matter.

7.  In “Muhammad Asghar v. Hussain Ahmad and others” (PLD 2014 SC 89), while deciding a case which involved recalling of a witness by Court for re-examination in a civil suit, the Hon’ble Supreme Court of Pakistan held that the Civil Procedure Code (CPC) consists of two parts, procedural and substantive. The procedural part consists of those provisions which are meant for the process of litigation, i.e. the mechanism for proceeding with the trial. Excluding those provisions, the rest is all substantive law. More particularly it held that the provisions relating to production of evidence, examination of witnesses, their cross-examination and re- examination contained in the CPC read with the relevant provisions of the QSO are part of substantive law. They are not procedural and thus cannot be regarded as mere “technicalities”. The law laid down in Muhammad Asghar’s case applies with equal force to the Criminal Procedure Code, 1898. Section 540, Cr.P.C. and Article 133 of the QSO are substantive law which confer valuable rights on the parties and cannot be dubbed as technicalities.

8.  Section 311 of the Indian Code of Criminal Procedure and Section 138 of the Indian Evidence Act are pari materia to our Section 540, Cr.P.C. and Article 133 QSO. In “Rajaram Prasad Yadav v. State of Bihar and another” [2013 AIR SC (Cri) 1746], the Supreme Court of India held that the said Sections confer wide powers on the Courts with regard to summoning of a witness or to recall or re-examine any witness already examined. All that is required is that the Court should be satisfied that his evidence is essential for the just decision of the case. It explained:

“Therefore, a reading of Section 311 Criminal Procedure Code and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 Criminal Procedure Code. It is, therefore, imperative that the invocation of Section 311 Criminal Procedure Code and its application in a particular case can be ordered by the Court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any Court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined, the Court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the Court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution.”

9.  In “Watir Ullah and others v. The State” (PLD 1966 Dacca 422), the Court had the occasion to dilate on the issue. Referring to Sections 137 and 138 of the Evidence Act, 1872 (which were pari materia to Articles 132 and 133 of the QSO), it observed:

“Our attention has been drawn in this connection to the provisions of Sections 137 and 138 of the Evidence Act and more particularly, to latter section. Section 138 provides inter alia that after examination-in-chief and cross-examination of a witness he may be re-examined by the party calling him and he re-examination shall be directed to the explanation of matters referred to in cross-examination and if new matter is, by permission to the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.’ Thus ordinarily re-examination should relate to explanation and clarification of the matters brought out in cross-examination but new matters can be introduced in re-examination with the leave of the Court.”

10.  In “Mst. Sami and 8 others v. Mst. Firdos Begum and 15 others” (2002 CLC 1989), a learned Division Bench of the Sindh High Court further elaborated the object and scope of re-examination. It said:

“The object of re-examination is clear an ambiguity which has arisen upon cross-examination. It does not provide a chance to the party for making improvement in the examination-in-chief. In fact, the re-examination is directed to the explanation of the matter referred to the cross-examination. Thus, the condition essential for re-examination is the existence of some ambiguity which has crept into the examination-in-chief by the embarrassing question asked in cross-examination.”

As per Merriam-Webster Dictionary, ambiguity means “something that does not have a single clear meaning: something that is ambiguous.”

11.  From the above it follows that the Court may at any stage of the proceedings on its own or on the request of a party recall a witness for re-examination, if the interest of justice so require, to get explanation or for removal of doubt or ambiguity with respect to a fact. However, such permission cannot be given to any party to fill in lacunae in the case which may cause prejudice to the other party. The Court may also permit introduction of a new matter in re-examination if that is necessary for the just decision of the case. In such eventuality the adverse party has the right to cross-examine the witness after re-examination.

12.  In the instant case, it is observed, the Investigation Officer Arshad Ali/S.I. appeared as CW-2 and recorded his statement that during the course of investigation of F.I.R. No. 340/2012 supra, vide Ex.PE and Ex.PF, he collected blood-stained earth from underneath the dead bodies of both the deceased persons (Sajjad Anwar and Naseer Ahmad) and, vide Ex.PG and Ex.PH, from the place where Fazal Mahmood and Faisal alias Kaka were injured. Besides, he also collected empties from the spot and took the same into possession vide Recovery Memo Ex.PD. Perusal of the record shows that the said Recovery Memos were attested by Petitioner Falak Sher (PW-2) and Masood Ahmad (PW-3). In his testimony Masood Ahmad (PW-3) deposed that the aforementioned recoveries were made in his presence and he signed the Recovery Memos alongwith Petitioner Falak Sher (PW-2) as a marginal witness. However, Petitioner Falak Sher missed out this aspect of the matter when he recorded his statement as PW-2 statedly owing to inadvertence. Inasmuch as the Recovery Memos have already been exhibited, no prejudice would be caused to Respondents No. 3 to 9 if the Petitioner is permitted to depose in respect thereof. It would rather promote the ends of justice and enable the Court in reaching a just decision. Obviously, this would be subject to the right of Respondents No. 3 to 9 to cross-examine the witness as envisaged in Article 133(3) of the QSO.

13.  Petitioner Falak Sher has also sought permission to tender in evidence the application that he submitted to the police for registration of F.I.R. on 02-08-2012. Perusal of the record shows that he specifically deposed about making of this application in his examination-in-chief when he appeared as PW-2 but did not get it exhibited. Inasmuch as the said application is also vital for the just decision of the case, the prosecution should not be made to suffer owing to the omission which has been caused due to inadvertence or sheer negligence.

14.  One of the reasons given by the learned trial Court in support of its impugned Order is that the Petitioner had made the request at a very belated stage. This is hardly a legal ground for rejection of the Petitioner. In “Natasha Singh v. CBI (State)” [AIR 2013 SC (Cri) 1564], the Supreme Court of India held:

“The very use of words such as ‘any Court’, ‘at any stage’, or ‘or any enquiry’, trial or other proceedings, ‘any person’ and ‘any such person’ [Read: in Section 540, Cr.P.C.] clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should, therefore, be whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case… Fair trial is the main object of criminal procedure, and it is the duty of the Court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right.”

15.  In view of the foregoing, this petition is allowed and the impugned Order dated 06-05-2017 is set aside.

(A.A.K.)          Revision allowed

Supreme Court's Judgment on Forged Documents

PLJ 2011 SC 889
[Appellate Jurisdiction]

Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui & Khilji Arif Hussain, JJ.

ABDUL REHMAN and others--Appellants

versus

GHULAM MUHAMMAD (deceased) through L.Rs, etc.--Respondents

Civil Appeal No. 639 of 2006, decided on 11.2.2010.

(On appeal against the judgment dated 1.3.2006 passed by Lahore High Court, Lahore in RSA No. 81/1998)

Limitation Act, 1908 (IX of 1908)--

----Arts. 91, 90 & 144--Applicability of--Thumb impression on power of attorney were sent to handwriting expert--Effect of report--Not tallied with admitted thumb impression--Fraud and forgery against general attorney--Cancellation of sale-deed--Regular second appeal was allowed by High Court--Challenge to--Validity--Alleged power of attorney as defendants had failed to prove the execution of the general power of attorney, all the subsequent transactions pursuant thereto were void--Impugned sale-deeds did not exist in the eyes of law--Limitation prescribed in Arts. 91 or 120 of Limitation Act, would not be applicable and the matter would be governed by Art. 144 of Limitation Act--While considering the question of limitation in a suit seeking cancellation of documents the Court has to keep in view the distinction between the documents which are void ab intio and nullity in the eyes of law and documents which are voidable and require a formal cancellation through a judicial verdict. [P. 893] A & B

Limitation Act, 1908 (IX of 1908)--

----Arts. 143 & 144--Forged document--Time barred--Distinction between a void and voidable transaction--Sound disposing mind--In case of void transactions, the suit would be governed by Arts. 143 & 144 of Limitation Act--Court having analyzed the evidence on record had the will was a void transaction as testator had no sound disposing mind when he made the will, that a person who has no sound disposing mind does not posses the capacity to make a will and if he purports to make a will it cannot be said that legally there is any will in existence.         [P. 893] C

Limitation Act, 1908 (IX of 1908)--

----Arts. 142 & 14--Question of limitation--Fraud and forgery against general attorney who executed the sales on his behalf--Suit for cancellation of sale-deed--Remedy within limitation period prescribed in law--Suit was not filed within the period--Petitioner had failed to prove because neither the alleged attorney was examined or attesting witness of the document and even the document itself was not placed on record--Court even went to the extent of holding that petitioner in order to protect their fraud have not intentionally produced general power of attorney--Transaction was a void transaction and relevant Art would be Arts. 142 or 144 of Limitation Act--Appeal was dismissed.         [P. 894] D

Mr. Hassan Ahmad Khan Kanwar, ASC for Appellants.

Mr. Khizar Abbas Khan, ASC for Respondents

Date of Hearing: 11.2.2010

Order

Tassaduq Hussain Jillani, J.--Facts giving rise to the instant appeal briefly stated are that predecessor-in-interest of respondents namely Ghulam Muhammad alleging fraud and forgery against the general attorney who purportedly executed the sales on his behalf, filed a suit for possession and cancellation of Sale-Deed No. 135 dated 22.3.1972, Mutation No. 923 dated 18.4.1977, Mutation No. 933 dated 21.5.1978 and Mutation No. 1219 dated 24.4.1985. Having framed the issues and recorded the evidence, the learned Trial Court dismissed the suit on 7.6.1995 and his appeal met the same fate before the learned District Judge. However, the Regular Second Appeal filed by him was allowed by the learned High Court vide the impugned judgment dated 1.3.2006.

2.  Learned counsel for the appellants in support of the appeal submitted that the learned High Court has not correctly decided the issue of limitation; that the learned Court fell in error in not appreciating that the suit for cancellation of document is governed by Article 91 of the Schedule of the Limitation Act for which the limitation prescribed is three years. In the instant case, he added, the sale was made on 22.7.1972 whereas the suit was instituted on 5.12.1984. He further contended that even if the impugned mutations were voidable, the party aggrieved had to seek the remedy within the limitation period prescribed in law and if the suit was not filed within the said period, the same was liable to be dismissed and the concurrent judgments of the learned Trial Court and the learned First Court of Appeal on that count were unexceptionable which could not have been interfered by the learned High Court in Regular Second Appeal. In support of the submissions made, learned counsel relied on Muhammad Akbar Shah Vs. Muhammad Yusuf Shah and others (PLD 1964 SC 329), Anwar Zaman Vs. Bahadar Sher (2000 SCMR 431) and Hamida Begum Vs. Murad Begum (PLD 1975 SC 624).

3.  Learned counsel for the respondents, on the other hand, defended the impugned judgment by submitting that predecessor-in-interest of respondents/plaintiff had been defrauded; that he had not appointed Basharat Ali as his general attorney and the impugned sale-deed executed by him on 22.3.1972 and all the transactions thereafter were void. He further submitted that both the Courts i.e. the learned Trial Court and the learned First Court of Appeal had decided the two issues relatable to the merits of the case in favour of the respondent/plaintiff but not non-suited him on question of limitation which was violative of the law declared by this Court.

4.  We have heard learned counsel for the parties and have gone through the evidence on record.

5.  In terms of the divergent pleas, the learned Trial Court had framed 12 issues out of which the following issues are crucial:--

"1.        Whether the plaintiff is owner of the suit property and registered Sale-Deed No. 135 dated 22.3.1972 and Mutation No. 923 attested on 18.4.1977 and mutation attested on 21.5.1978 and No. 1219 and attested on 24.4.1985 are result of fraud hence liable to be set aside and cancellation? OPP

2.         Whether the power of attorney dated 21.8.69 from plaintiff in favour of one Basharat Ali s/o Allah Ditta is a forged document? OPP

3.         Whether the plaintiff is entitled to the possession of the suit land? OPP

4.         Whether the suit is time barred? OPP 1-3"

6.  The learned Trial Court decided the Issue Nos. 1 & 2 against the appellants/defendants and in favour of the respondent/plaintiff by holding as follows:--

"So the defendants in order to protect their fraud have not intentionally produced general power of attorney. The defendants have also not examined Basharat Ali the alleged general attorney of the plaintiff despite the fact Basharat Ali, Zahoor and Allah Ditta the defendants not only live in the same village but also in one house and under the same roof and this fact has been admitted by Sikandar Khan DW4 in the last line of his cross-examination. So when Allah Ditta and Basharat Ali live in the same house, Allah Ditta could have very easily got examined and produced him in the Court to show that the plaintiff had infact appointed him as his general attorney. The defendants have also not examined any marginal witnesses of the general power of attorney to prove that the plaintiff had infact executed general power of attorney infavour of Basharat Ali. Although initially the burden of proving the factum that a fraud was committed in the execution of general power of attorney was placed on the plaintiff but to my mind when the plaintiff gave the statement that he had not appointed Basharat Ali as his general attorney, the onus shifted to the defendants to prove to the contrary i.e. to prove by way of positive evidence that the plaintiff had infact appointed Basharat Ali as his general attorney."

7.  It is in evidence that the so called general attorney Basharat Ali was son of Allah Ditta, the ultimate beneficiary and the said Basharat Ali stated to have sold the suit land in favour of Abdul Rehman (Defendant No. 1) and the latter through his attorney Zahoor Ahmed exchanged 154 kanals of suit land with 32 kanals of suit land with Allah Ditta, father of the alleged attorney (Basharat Ali). However, the thumb impression of Abdul Rehman on the power of attorney (Ex.D2) executed in favour ofZahoor Ahmed were sent to the handwriting expert and the report was to the effect that those did not tally with the admitted thumb impression of Abdul Rehman. Having decided the afore-referred two issues on merits in favour of the respondent/plaintiff, the suit was dismissed as time-barred. The learned High Court reversed the concurrent findings of the two Courts below on Issue No. 4 by holding that since the impugned Sale-Deeds No. 135 dated 22.3.1972, Mutation No. 923 dated 18.4.1977, Mutation No. 933 dated 21.5.1978 and Mutation No. 1219 dated 24.4.1985 were the result of a forged document i.e.  the  alleged  power  of  attorney  in  favour ofBasharat Ali and as the respondent/defendants failed to prove the execution of the said general power of attorney, all the subsequent transactions pursuant thereto were void, the impugned sale-deeds did not exist in the eyes of law, therefore, the limitation prescribed in Article 91 or 120 of the Limitation Act would not be applicable and the matter would be governed by Article 144 of the Limitation Act. This finding is in line with the law laid down by this Court in Muhammad Akbar Shah Vs. Muhammad Yusuf Shah and others (PLD 1964 SC 329) and Abdul Majid and 6 others Vs. Muhammad Subhan & 2 others (1999 SCMR 1245). While considering the question of limitation in a suit seeking cancellation of certain documents, the Court has to keep in view the distinction between the documents which are void ab initio and nullity in the eyes of law and documents/instruments which are voidable and require a formal cancellation through a judicial verdict. In this context, the judgment of this Court reported at Muhammad Akbar Shah Vs. Muhammad Yusuf Shah and others (PLD 1964 SC 329) is rather instructive. In the said case on the death of one Syed PhalooShah, mutation of inheritance was sanctioned in favour of Muhammad Yousaf Shah on the basis of a purported registered will. The said will was challenged by way of civil suit by the rival claimant on the ground that the deceased was insane and at-least possessed no disposing mind and that the will was the result of undue influence. He also alleged that the will was a forged document. The suit was decreed, however, in appeal, the learned High Court dismissed the suit by invoking Article 120 of the Limitation Act and held the suit to be time-barred. The matter came up before this Court and a full Bench of this Court after an elaborate comment on the distinction between a void and voidable transaction, came to the conclusion that in cases of void transactions, the suit would be governed by Article 143 or 144 of the Limitation Act. The Court having analyzed the evidence on record, held that the will was a void transaction as the testator had no sound disposing mind when he made the will; that a person who has no sound disposing mind does not possess the capacity to make a will and if he purports to make a will, it cannot be said that legally there is any will in existence. The Court observed at page 335 as under:--

"The principle is that if the transaction which is sought to be set aside was a voidable one, it is essential that the transaction be set aside. If it be no voidable, but void, the question of setting it aside would not arise. As to whether a transaction is voidable or void there is simple criterion: did the transaction create any legal effects, that is, did the transaction transfer, create or terminate or otherwise affect any rights? In a void transaction no legal effects are produced. In a voidable transaction legal effects are produced but some person has the right to avoid the transaction and if he exercises that option to process by which rights were affected is reversed and the original situation as it existed before the transaction is restored (subject to adjustment of equities). If the Court which is dealing with the question of limitation reaches the conclusion after considering the evidence before it that the transaction in dispute by its own force produced legal effects it would be necessary that the transaction be set aside and limitation will be governed by the article applicable to the setting aside of the transaction. It if comes to the conclusion that by itself the transaction produced no effect no need for setting it aside will arise. It is necessary to state here that a voidable transaction should not be confused with a transaction which prima facie looks valid and in relation to which the burden of proof will be on the party alleging its invalidity. There may be a document in existence a registered deed of sale or mortgage or some other transaction, which is by presumption genuine and the person who purports to be its executant may have the burden on his to show that it is a forgery. Still it is not a voidable transaction because ultimately when the Court comes to the conclusion that it is a forgery it will be found that in fact the document never affected any right. That is the criterion for determining whether a document is void or voidable. Its apparent validity or the question of burden of proof is in this respect irrelevant. No person is bound to sue for setting aside a document just because it is raising a presumption against him. There is no need for the person who is shown to be the executant of the forged document to sue for its cancellation or for setting it aside though he may be taking a risk in allowing the document stand for proof of forgery may become difficult as time passes. A transaction which is not genuine may have been incorporated even in the revenue records which have a presumption of correctness. Still there is no need to have the transaction set aside for revenue records are only evidence of it and do not affect title."

8.  In the instant case as discussed in paragraph 6 above, the Court having examined the evidence on record found that petitioner/defendants had failed to prove thatBasharat Ali was a general attorney of the respondent/plaintiffs because neither the said alleged attorney was examined nor the attesting witnesses of the said document and even the document itself was not placed on record. The Court even went to the extent of holding that "the petitioner/defendants in order to protect their fraud have not intentionally produced general power of attorney". That being so, the transaction in question was a void transaction and the relevant Article would be Article 142 or 144 of the Limitation Act. The learned High Court has rightly decided the question of limitation.

9.  For what has been discussed above, we do not find any merit in this appeal, which is accordingly dismissed.

(R.A.)  Appeal dismissed.