PLD 1952

P L D 1952 F. C. 1
(Appellate Jurisdiction)
Before Abdul Rashid C.J. A. S.M. Akram and
Muhammad Munir. JJ.
RAHIM BAKHSH Appellant
versus
CROWN – Respondent

Criminal Appeal No. 5 of 1950, decided on 12th November, 1951.
On appeal from the judgment and order of the High Court of Judicature at Lahore, dated the 7th June, 1950, in Criminal Appeal No. 856 of 1949.
(a) Criminal trial—Conviction based solely on admission of accused— Accused’s attention to such admission, or his explanation for same, not called for by Court during accused’s examination —Unfair—Violation of principles of natural justice — Criminal Procedure Code (V of 1898), S. 342.
It would be most unfair to the accused, and it would amount to a violation of a fundamental principle of natural justice if he is convicted solely on the basis of an admission alleged to have been made by him without calling his attention to the admission and asking for his explanation when he was examined in Court [p. 5].
The admission of the accused before he Revenue Assistant on the 15th of March must be excluded from the evidence on the ground that the accused cannot be prejudiced by his omission to explain what he was never asked to explain throughout his trial. The admission before the Revenue Assistant could not, therefore, form the basis of conviction and the learned Judges of the High Court should have placed no reliance on this admission. There is ample authority for the proposition that where the confession of the accused has been made an integral and substantial part of the prosecution case, the failure of the Judge to question the accused about it is clearly a serious omission which cannot be cured by the provisions of section 537 of the Criminal Procedure Code. The failure of the Trial Court to question the accused about his confession would amount to an infringement of the provisions of section 342 of the Criminal Procedure Code and the confession will have to be excluded from consideration in determining the guilt of the accused. Where such a confession or admission is the sole basis of the judgment convicting the appellant, the failure to question him about it must be held to have prejudiced his case substantially. [p. 6].
A I R 1933 p c 124 REF.
Per Muhammad Munir. J. (contra). – It is true that the appellant when examined under section 142 of the Code of Criminal Procedure was not specifically questioned about the confession. But for that reason alone the confession does not case to be admissible. It may be that where an accused person has not at all been questioned on the salient aspects of the prosecution case, the conviction becomes indefensible but the omission to put a particular incriminating circumstance to him stands on a different footing. In such a case the Appellate Court will have to consider whether the omission occasioned any prejudice to the accused. [p. 14].
(b) Criminal trial – Accused’s statement in Court should be taken into consideration in its entirety if conviction is to be based solely on such statement – Criminal Procedure Code (V of 1898). S. 342.
It the conviction of the petitioner is to be based solely on his statement in Court it is obvious that this statement should be taken in to consideration in its entirety. [p. 7].
Per Muhammad Munir, J,— I know of no law which says that an admission made by an accused person in or out of Court unless it be vitiated by any such circumstances as are mentioned in the Indian Evidence Act, cannot be considered to be a matter which the Court may take into consideration in coming to its conclusions.
The issue must be held to be proved against the appellant by his own statement in Court, quote irrespective of whether any confession alleged to have been made by the appellant is proved or not and whether that confession is relevant or not, [p. 12].
(c) Evidence Act (I of 1872), S. 24— Person in authority — Confession to — When can be thrown out.
The mere fact that a confession is made to a person in authority is plainly insufficient to exclude that confession from evidence. Before that section is pressed into service to throw out a confession, the Court has to find several other facts in connection with that confession, the most important of which in that the person in authority should have held out to the confessor some threat, promise or inducement having reference to the charge against hi. [p. 13].
(d) Criminal Procedure Code (V of 1898), S. 154— First Information Report —- Not in nature of a formal charge.
A First Information Report is not in the nature of a formal charge, [p. 15].
(e) Federal Court—Additional evidence— Whether admissible— Report by certain officers based on documents and statements of persons not examined on authority of Federal Court —Completely irrelevant.
Per Muhammad Munir, J, — The reports show that they are based on the examination of certain documents and the statements of certain persons who were not examined under the authority of this Court. These conclusions are, therefore, completely irrelevant as they are no more than opinion of these officers on matters in issue which are not for expert testimony. [p. 17].
(f) Federal Court—Not Court of criminal appeal—Not guided by own doubts of innocence or guilt.
The Judicial Committee was not a Court of criminal appeal and was not guided by its own doubts of the appellant’s innocence or suspicion of guilt. This observation is fully applicable to the Federal Court which is the successor of the Judicial Committee. [p. 18].
1914 A. C. 644 ref.
Jamil Hussain Rizvi, Advocate-General Court for Appellant.
Abdul Aziz Khan, Advocate-General of the Punjab (A.D. Malak, Advocate, Federal Court with him), instructed by Ijaz Ali, Attorney.
Dates of hearing: October 15, 16, 1951.

P L D 1952 Federal Court 19

(Appellate Jurisdiction)
Before Abdul Rashid C.J. Akram and Correlius. JJ
(Moulvi) FAZLUL HAIDER CHOUDHURY —Appellant
versus
CROWN—Respondent

Criminal Appeal No. 6 of 1951, decided on 17th January, 1952.
(From the judgment of the High Court Dacca dated the 29th May, 1950, in Criminal Revision Nos. 74 and 75 of 1949).
(a) Conviction—Must be based on evidence recorded in Trial Court— Any other material sought to be used against accused must be placed on record after complying with S. 428 Criminal P, C.— Admission contained in petition for revision cannot be taken into consideration.
Per Abdul Rashid C. J.— The admission contained in the petition for revision preferred by the accuse in the High Court at Dacca cannot be taken into consideration into order to till up the gaps in the prosecution case or to support a conviction. The conviction must be based only o the evidence that was recorded in the Trial Court. If any other material is sought to be used against the accused person, such material should be placed on the record after complying with the provisions of section 428 of the Code of Criminal Procedure. [p. 21].
Per Cornelius, J, — In the ordinary course, any matter of fact, relevant to a point for determination in the case, should be established as evidence in the proceedings, in one of the modes known to law. In the absence of a proper statement, made on oath, the adoption of the averments in the revision, petition as proof relevant to the determination of the petitioner’s case, was clearly irregular. [p. 27].
Conviction based on reasons which are not supported by admissible evidence is liable to be set aside.
(b) Criminal trial—Prosecution not absolved from discharging initial onus even if accused unable to establish defence-plea—Bengal Criminal Law Amendment Act (1942), S, 4 (1)— “Reason to believe” not same as suspicion.
Even if the appellate had failed in his attempt to establish his defence plea, nevertheless, the prosecution was not absolved from the duty of discharging the initial onus which lay upon it. The position seems to be this, that although a person may fail to give a satisfactory explanation required of him under the law, he may still take the advantage of any defect or weakness in the prosecution case and claim an acquittal, as the original onus on the prosecution of proving the general issue is never shifted, and it has to prove the case beyond a reasonable doubt. [p. 22].
Where except the fact that a great quantity of copper wire was found in the possession of the appellant, there was no other legal evidence o the record which could be said to furnish a reason to believe that the copper wire was stolen or fraudulently obtained, there being only suggestions made by the prosecution to the effect that one Kanaiya Lal Marwari had an enormous stock of copper wire in his godown; that there was a recent theft of a large quantity of it from the said godown, that the copper wire found in the possession of the appellant was a part of the same stolen wire, but neither kunaiya Lal Marwari was examined in the case, nor the alleged theft nor the industry of the copper wire was legally established. [p. 22].
Held, (Per Akram J,), that there is thus nothing on the record which can be said to provide any legal basis for making the appellant liable to give a satisfactory account for his possession under section 4(1) of the Bengal Criminal Law Amendment Act, 1942.
It may be that a certain amount of suspicion is caused by the conduct of the appellant, but the word “believe” is a very much stronger word, and moreover the statute requires that the belief must be a reasonable one. [p. 22].
Per Cornelius, J,— The ration decidendi has been, in my opinion correctly appreciated by Mr. Justice Ellis in his judgment where he has observed as under :—
“I think it is not enough to show that there is a reason to suspect that the articles found have been stolen or fraudulently obtained. Something more is required and that something is ‘reason to believe’ ‘belief’ being a conviction of the mind arising not from the actual perception or knowledge but by way of inference of evidence received or information derived from others. It falls short of an ‘absolute’ certainty because the accused, in counting for his possession, may be able to show that the grounds upon which it is based are unsubstantial.” [p. 24].
Sukhu Kalwar v. The Emperor, 22 C. W N. 936; Rasik Lal Dad v. Emperor, 26 C. W. N. 712; and Chard Khan v. Emperor, 36 C. W. N. 512 ref.
(c) Evidence Act (I of 1872)S, 74, 76— Public documents—Differing orders of Division Bench of High Court—Case referred to third Judge—Accused applying for copies of Division Bench orders—Copies could not be refused on plea that orders were mere expressions of pinions not amounting to judgments.
An application was made on behalf of the appellant to the Dacca High Court for grant of copies of the judgment’s written by the learned Judges of the Division Bench, and was refused on the ground that the orders of the learned Judges of the Division Bench, and was refused on the ground that the orders for the learned Judges did not amount to judgments but were merely expressions of opinion. Accordingly, at the time when the case was argued before the third Judge, the appellant did not have the benefit of the analysis of evidence and the rations decidendi contained in the judgments for the two Judges by whom his case had first been heard and adjudicated upon:
Held, that it is difficult to appreciate the considerations which led to the refusal of these important documents to the appellant. No question of secrecy arose, for each judgment had been read out in open Court, and they were indubitably a part of the judicial proceedings, and as such public documents. While specific prejudice by non-delivery of required copies was not pleaded, it seems sufficiently plain that the party suffering the deprivation was placed at an appreciable disadvantage, without justification in law. He was entitled to take the full benefit of the views expressed, on the facts and the law involved in his case, by the two Judges of the Division Bench, to the same extent at least as he could use the reasoning adopted by Judges of the same Court in dealing with points, relevant to his case, which had arisen in earlier cases. [p. 23].
(d) Interpretation of Statutes—Statements of facts appended to Bills by ways of “Statements of Objects and Reasons”— Not relevant evidence in judicial proceeding.
No sanctity attaches to statements of fact occurring in a statute (Maxwell, Interpretation of Statutes 9th Edition page 319) and a fortiori, statements of fact contained in documents appended to Bills which never become part of the law and are only intended to serve as an aid to legislators and to the general public in following what may be described as the purport of the proposed measure, cannot ordinarily be regarded as, per se, relevant evidence in a judicial proceeding. [p. 28].
H.S. Suhrawardy, Senior Advocate, Federal Court, (B.A. Siddiqi, Advocate, Federal Court with him), Instructed by A.M. Abdullah, Attorney for Appellant.
Faiyaz Ali, Advocate-General of Pakistan, (Syed Modarris Ali, Advocate, Federal Court with him) instructed by Syed A.B. Muhammad Hussain, Attorney for Respondent.
Dates of hearing : 8th and 9th December, 1951.

PLD 1952 Federal Court 29
(Appellate Jurisdiction)
Before Abdul Rashid, C, J., A. S. M. Akram and
A.R. Cornelius, JJ.
SOBHO GYANCHANDANI—Appellant
Versus
CROWN—Respondent
Constitutional Criminal Appeal No. 1 of 1951, decided on 3rd March, 1952.
(On appeal from the judgment and order of the Chief Court of Sind at Karachi dated 5th February 1951, in Criminal Miscellaneous Application No. 120 of 1950).
Pakistan Public Safety Ordinance (XIV of 1949) S.1 (3) Ordinance — Ultra vires—Ordinance died natural death on expiry of one year from promulgation Conditional legislation, what is— Delegation of legislative power whether valid.
The Pakistan Public Safety Ordinance, 1949, was to remain in force for a period of one year from the date of its promulgation i.e. the 8th of October, 1949. By means of the proviso the Central Government was given power, from time to time, by notification, in the Official Gazette to direct that it shall remain to force for such further period as may be specified in the notification. This proviso must be held to be invalid and ultra vires as it confers legislative powers on an external authority i.e. the Central Government. The Pakistan Public Safety Ordinance died a natural death on the 8th October, 1950. As the Public Safety Ordinance had expired on the 8th of October, 1950, it was not open to any authority to issue any order of detention under this Ordinance subsequent to that date [p. 45]A.
Per Abdul Rashid, C, J, –“A Legislature cannot delegate its powers of making, modifying, or repealing, any law to an external authority. It does so, it would be creating a parallel Legislature. The power of extending the duration of an enactment which would have terminated but for the interference of the external authority, is the exercise of legislative powers by an external authority and is invalid. Extension of the life of an Act is tantamount to re-enactment. It is open to the Legislature to delegate powers, relating to the enforcement of the Act, or its application to particular areas if certain conditions prevail therein, as that merely amounts to conditional legislation….. If any Legislature delegated legislative functions to an external authority such delegation would be invalid.” [p. 45]B.
“It is the nature of the power rather than the manner of exercising it which determines whether the delegation is proper or invalid. If he Legislature gives the power to extend the life of an enactment to the Central Government, the nature of the power which is to be exercised by such Government is Legislative power, as without the exercise of the power the legislation would have lied a natural death and would no longer have remained on the Statute Book. It, on the other hand, the body on which the authority has been conferred by the Legislature has discretion as to the manner of the execution of the powers to be exercised, and in pursuance of the law the external authority is not making or unmaking the law but is performing its administrative functions. In the case of a temporary Act, after the expiration of the period fixed for its operation, the Act comes to an end automatically. There is no analogy between conditional legislation which authorizes an outside authority to determine its commencement and the power to determine the life of the Act itself. The power of extending the life of an Act is really a power to bring the Act into existence for a further period, and it is therefore identical with the power of re-enactment. The power to extend the life of an Act cannot be regarded merely as conditional legislation,” [pp. 37, 38]C.
The power authorizing the Central Government to extend the life of Pakistan Public Safety Ordinance (XIV of 1949) is therefore not conditional legislation.
When a law is made to take effect on the happening of a certain event, the Legislature in effect declares the law, but leaves it to an external agency to bring it into force, wherever it considers it expedient to do so. A law may be regarded as inexpedient in certain events, but expedient if certain events should take place. In passing conditional legislation, the legislature completely performs the duties which are imposed by the constitution open it. That is, it places legislation on the Statute Book; and the only function that it delegates to an external authority is to bring the legislation into force if certain events should happen and the enforcement of the legislation should be considered necessary. Even if the legislation is not brought into force it remains on the Statute Book to be utilized, when and it necessary. It however, a temporary Act is passed by the legislature for one year, it dies a natural death after the lapse for one year from its commencement. Thereafter it ceases to be a law. In these circumstances, it cannot be said that the external authority that gives a new lease of life to an enactment is merely bringing the legislation into force in accordance with the wishes of the legislature. [p. 39]D.
Jatindra Nath Cupta v. the Province of Bihar and others 1940-50 F.C.R.P 595; In the case of Kalayanam Veerabhad-rayya 1949/11 M L J p. 663; Badal Bose and others v. The Chief Secretry, west Bengal 53 C W N 728 (1948-49); A. K, R. Ahmad and others v. Crown P L R Dacca Series, p, 290, ref.
Her Majesty the Queen v. Burah 5 1 A 179; Russel v. Queen 1882 7 App, Cas. 82: KingKEmperor v. Benoari Lal Sarma and others 1945 F C R p. 161: Baxter v. Ah Way 8 C L R p. 626; Kishori Lal Potder v. Debi Pradad Keiriwal and another, A I R (37) 1950 Pat. P. 50: In re Art. 143, Constitution of India, A I R (38) 1951 Supreme Court, p. 332 examined.
Per A. S M. Akram, J,—I think it cannot be denied that a substantial delegation of powers becomes necessary in the ever-growing complexities of a modern State, but the question arises what should be the limits of such a delegation. In my opinion, matters of a fundamental nature or of general policy or of great importance, cannot be delegated, though powers may be assigned within reasonable limits and scope, such as, the determination of time, place, persons, durable commodities etc., so that rules, regulations, schemes and bye-laws may be made by anyone empowered to do so, within the frame-work of the main legislation; the main legislation itself, however, cannot be dictated r its contents revived unde the delegated powers; to say otherwise would virtually amount to permitting an abdication or a surrender o the legislative authority itself proposed in the person delegating it.” [pp. 47]F
“The legislation itself must be I force under the legislature’s own sanction before its provisions can be availed of. [p. 49]G.
Per Cornelius, J,—“ Prima facie the placing and keeping of a law on the Statute Book and the removing of a lw from the Statute Book are legislative functions.” [p. 58]H.
The true criterion is whether by an act of an outside authority a change is brought about in the netwoerk of laws which have validity in the country and are on the Statute Book. It is axiomatic that these laws interact on each other and the provisions of any one of these laws in some respect are operative in addition to parallel provisions in other laws and in some respects in derogation of such provisions. The complete removal of a particular law from the Statute Book creats an effect which goes beyond the mere termination of the particular provisions of such law. There is laos an effect upon other laws as well, whose own provisions thereby are either restored to full force or deproved of supplementary force as a result of the disappearance of the repealed law. A repeal has, therefore, a wider effect upon the legislative structure of the country then the mere disappearance of the particular law might appear to produce. It cannot be denied that to act so that such a result is produced is to act legislatively I the fullest sense. There is no difficulty in perceiving the distinction between producing an effect of such a fundamental kind on the one hand and on the other either, bringing into operation a statute which is already on the Statute Book or applying the provisions of a law which is on the Statute Book in particular places or to particular persons or things. [pp. 59, 59]I.
“Of the functions which are conferred by a written constitution, the legislative function is by far the most important. I cannot conceive that the constitution making authority when providing for ht establishment of a legislature and conferring powers on that legislature, should have intended otherwise than powers on that legislature, should have intended otherwise than that the powers so conferred should be exercised exclusively by that legislature. The difficulty which, under the increasing complexity of modern conditions, is felt by all legislature in making provisions for every as which may arise within the contemplation of a statute, renders it necessary for some measure of ancillary power to be delegated to executive authorities to make statutory rules and regulations for carrying into effect the provisions of the statute in matters for detail. Delegation to this extent has been universal practice for a greater many years, and such provision will be found in a great number of statutes. [p. 60]J
“After the 7th October, 1950, the Ordinance remained on the Statute Book as a result of an exercise of the will, not of the legislating authority, but of the Central Government. What is more when the first period of extension had been fixed, the power of future extension was derived not form the original Ordinance, as extended, but from the Ordinance and therefore any further extension should be doubly attributable to the exercise of the Central Government’s will. To this extent at any rate, there was abdication by the legislating authority of its function of keeping the law o the Statute Book. It is also plain that the Central Government’s power of brining the Ordinance to an end and thus removing it from the Statute Book by voluntarily refraining from extending it further, was not subject to control by the legislating authority. Supposing the Ordinance to an end and thus removing it from the Statute Book by voluntarily refraining from extending it further, was not subject to control by the legislating authority. Supposing the Ordinance were thus brought to an end, contrary to the wishes of the legislating authority. Supposing the Ordinance were thus brought to an end, contrary to the wishes of the legislating authority, by virtue of the Ordinance itself, to rectify the position but, in order to carry out its will, the legislating authority would have to re-enact the legislation afresh, therefore, in my opinion it is erroneous to regard the acts of the Central Government extending the Ordinance as deriving their efficacy from the will of the legislature. [p. 610K
Fazlue Rehman, Advocate, Federal Court (Iftikhar0ul-Haq Khan, Advocate, Federal Court with him) instructed by M.A. Rahman, Attorney for Appellant.
Faiyaz Ali Advocate-General of Pakistan (Inyat Ullah, Advocate, Federal Court with him) instructed by Iftikhar-ud-Din Ahmed, Attorney, for Respondent.

PLD 1952 Federal Court 63
(Appellate Jurisdiction)
Before Abdul Rashid, C, J., A. S. M. Akram and
A.R. Cornelius, JJ.
AMINUL HOQUE¬—Appellant
Versus
CROWN—Respondent
Constitutional Appeal No. 5 of 1951
(On appeal from the judgment and order of the High Court of Judicature at Dacca, dated the 10th July, 1950, in Criminal Appeal No. 230 of 1950 and Death Reference No. 8 of 1950).
(a) Evidence Act (I of 1872), S. 33—“Incapable of giving evidence:— Must be proved with strictness— Counsel’s consent to evidence being transferred not enough.
When evidence given by a written in a judicial proceeding is sought to be used under section 33 in a subsequent judicial proceeding or in a later stage of the same judicial proceeding on the ground that the witness is incapable of giving the evidence that fact must be proved strictly [p. 67]A.
The fact that the counsel for the accused consented to the evidence of the witness being read under section 33 of the Sessions Court does not do away with the necessity of the Court being satisfied by proof that the witness was incapable of giving evidence. [p. 67]B.
Where the only evidence about the illness of a witness was that of the Sub-Inspector of Police, the statement of the witness recorded by the Committing Magistrate and brought on the Sessions record under section 33, Evidence Act, was excluded from consideration.
Chainchal Singh v. The Emperor A I R (33) 1946 P C I, ref.
(b) Confession— Recording Magistrate’s evidence before committing Magistrate transferred to Sessions record—Excluded from consideration, not having fulfilled requirements of S. 33, Evidence Act — No other evidence to prove confession —Confessions inadmissible.
(c) Federal Court—Holding improvement part of evidence ageist accused inadmissible—Whether would examine remaining evidence to form its own estimate of it.
When an important part of the evidence relied upon by the High Court has been held by the Federal Court to be inadmissible, it is the function of the Federal Court to examine the remaining evidence for itself and form its own estimate of the value of such evidence. [p. 70]C.
Chainchal Singh
Chanchil Singh v. Emperor, A I R (33) 1946 P C I ref.
(d) Criminal procedure Code (V of 1898), S 342— Putting a general question not enough—Accused’s attention must be called to vital points in evidence and his explanation sought—Nevertheless examination not to be for cross-examining accused or for filling up gaps in prosecution—Meant to assist accused to explain.
Section 342 Criminal P.C. enjoins that for the purposes of enabling the accused to explain in any circumstances appearing in the evidence against him he shall be questioned on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. It is not sufficient to put a general question to the accused whether he has anything to say about the charges leveled against him. When a point arises in the evidence against the accused which the Court considers vital, It is the duty of the judge to call the attention of the accused to the point, and to ask for an explanation. The whole object of enacting section 342 of the Criminal P. C. is that the attention of the accused should be drawn to the specific points in the evidence on which the prosecution claims that the case is made out against the accused, so that he may be able to give such explanation as he desires to give. It is true that section 342 was not intended for the purposes of cross-examining the accused or for filling up gaps in the case for the prosecution But it is no less serious an error to go to the opposite extreme, and , by excess of restraint, to defeat the primary objet of the section which is to assist the accused in explaining the circumstances which are relied upon by the prosecution as establishing the case against him. [pp. 70,71].D
Dauarkanath Varma v. King emperor 37 C W N 514 (P C) ref.
(e) Re-trial—Offence committed more than 2 years and 4 months before hearing of appeal—Crown’s request for retrial based mainly on desire to fill up gaps—Re-trial not ordered,
A. K. M. Baquer, Senior Advocate, Federal Court Modaris Ali Advocate, Federal Court with him), for Appellant.
A.K. Fazlul Haq, Advocate-General of East Bengal (Syed Modaris ali, Advocate, Federal court (with him), instructed by Syed A. B Mahmud Hussain, Attorney, for Respondent.
Dates of hearing: November 26, 27 and 29.

PLD 1952 Federal Court 71
(Appellate Jurisdiction)
Before Abdul Rashid, C, J., A. S. M. Akram and
A.R. Cornelius, JJ.
AMINUL HOQUE¬—Appellant
Versus
CROWN—Respondent
Criminal Appeal No. 11 of 1951, decided on 31st March, 1952.
(On appeal from the judgment and order of the High Court of Judicature at Lahore, dated 13th December, 1950 in Murder Reference No. 107 and Criminal Appeal No. 474 of 1950).
(a) Criminal Procedure Code (V of 1898). S.s 375. 428—Further inquiry or additional evidence at appellant stage—Should not be ordered to cure infirmities in prosecution case—Accused’s right to rebut such evidence —Denial of —Violation principles of natural justice.
(Per Abdul Rashid, C. J )— The provisions of sections 375 and 428 of the Code of Criminal Procedure are meant to be used in such a manner as to secure even-handed justice to both parties. They should not be utilized to cure all the infirmities in the prosecution case in the appellate Court. [p. 80]A.
To recall partisan witnesses to make additional statements at the appellate stage is an invitation for perjured evidence Section 428 of the Criminal Procedure Code should be availed of by an appellate Court only if additional evidence can be given by persons who are entirely unconnected with the parties and can therefore be expected to give an unbiased account of the occurrence. [pp. 77. 78]C.
It does not make the slightest difference whether the additional evidence is required by the Court or is produced by parties. [p. 79]C.
Where the defence wished to adduce evidence in rebuttal but the request was refused:
Held that the High Court had not exercised its discretion properly and that the refusal to grant an opportunity to the defence to rebut the evidence of Nawab. Muhammad Sadiqand Saidu Naul constituted a violation of the principles of natural justice and seriously prejudiced the case of the appellants. [p 80]D
Re. West Jewell Tin Mining Company (Weston’s Case) XL L T R p. 43; Sanders v. Sanders, XL V L T R p 637ref.
The prejudice caused to the appellants by te procedure adopted ata the hearing of the appeal I the High Court can only be remedied by eliminating all the evidence recorded in the appellate Court. [p. 80]G
(Per Cornelius, J.)—Despite the wide terms in which the power is expressed, it has only been exercised where the additional evidence was either not available at the trial, or the party concerned was prevented from producing it either by circumstances beyond its control, or by reason of misunderstanding or mistake. [p. 92]M.
Afit Kumar, Ghose, (LR 1944 Nag. 809): Akhtar Husain (K I R 1925 Pat. 526); Konda Reddi, (A I R 1930 Mad. 854) Hanumanthappa (A I R 1937 Mad. 181) (Allaway 17 Cr. App. R. 16, and Berry 18 Cr. App. R. 65); Hullet, (17 Cr. App. R. 8) Robinson (12 Cr. App, R. 226). Hamilton (13 Cr. App. R. 8) Robinson (12 Cr. App. R. 226), Hamilton (13Cr. App. R. 32)Warren (14 Cr. App. R.4); Ward (17 Cr. App. R. 65), ref.
When the record of the case, as prepared at the trial provided ample material for a just and proper decision on points, which the High Court sought to elucidate by means of the additional evidence they recorded, allowing the prosecution a further opportunity during the hearing of the appeal to clear up these doubts was not a judicial exercise of the discretion materially relied upon in their judgment dismissing the appeal and confirming the death sentences. There had thus been violation of a principle of law sufficient to attract the Court’s jurisdiction, as laid down in Bibhabati Devi v. Ramendra Narayan Roy, (A I R 1947 P C 19). It is necessary that this additional evidence should be excluded from consideration in determining the guilt or innocence of the appellants, which must rest exclusively o the evidence placed on the record at the trial. [pp. 104, 105] N,O
(b) Federal Court—Criminal appeal—Whether and when would Federal Court itself scrutinize evidence afte part of it had been ruled out of consideration—Evidence Act (I of 1872). S. 167—U heather applicable to Federal Court.
(Per Abdul Rashhid, C, J.)—No bard and fast rue can be laid down as to whether, after evidence taken under sections as to whether, after evidence taken under sections 375 and 428 by the High Court had been ruled out of consideration, the evidence recorded at the Sessions trial should be scrutinized by the Federal Court or whether the case should be remitted to the High Court for a re-hearing of the appeal preferred by the appellants. If the case is of such a nature that this Curt has to examine the entire evidence on the record in order to determine whether the statements of some of the witnesses are inadmissible, or whether they should only right and proper for this Court to deal with he case on the merits. After an examination of the entire record by the Court, it would not be justifiable o cause further delay and expense by remitting case for a rehearing to he High Court. Further, if the case is a simple one and depends upon the testimony of few eye-witnesses, further delay and expense should be avoided. If, on the other hand, the consideration of the law points involved in a case has not necessitated a scrutiny of the statements of witnesses, or if the case requires an examination of voluminous oral and documentary evidence, the case should be remitted to he High Court for rehearing [p. 81]E.
The observations made in the judgment of the Privy Council in Diller’s case (1977) 12 App. Cas. 469 or Arnold’s case (914) A C 644 have no applicability to cases where a part of the evidence is found to be inadmissible by this Court or is to be eliminated from consideration on other grounds . [p. 81]F.
(Per Akram, J_—Where grave and substantial injustice is found to have resulted the Court would finally dispose of the appeal itself, if upon legal grounds or legal principles, it is in a position to do so, e.g., when:—
(a) there is no legal evidence in support of the conviction or the evidence is such that it cannot properly form the basis of a conviction.
Or
(b) the Court acts without jurisdiction o is not validly constituted:
(c) The trial held is vitiated by a violation or disregard of the fundamental principles of criminal justice:
but if no such ground or principle, as aforesaid, justifying direct interference is found to exist, the Court is not to be guided “by its own doubts of the appellant’s innocence or suspicion of the guilt” Arnold v. The King Emperor, (1914 A C 644) and would, as a general rule, send back the appeal for its rehearing after giving such directions as may be necessary. [p/ 90]H
Where the High Court itself, in some measure, was in doubt with regard to the question of affirming the conviction has not been argued before us, and I am not aware of any decision of this Court on the point. Prima facie, since the Federal Court is constituted by proper authority in Pakistan, it is within the meaning of the expression ‘Court’ as used in Section 167 of the Evidence Act (which is in the terms reproduced above). It follows that it is not open to this Court to adopt the course taken by the Judicial Committee in Kottayas case (74 I A 65). It appear that their Lordships regarded the case as falling under Section 167, which did not apply to the Privy Council but did apply to the High Court, and they consequently directed the High Court to discharge the duty imposed upon “the Court” by that section. In similar circumstances, I am inclined to think that it would be for this Court to carry out his duty, and we would be acting contrary to the section itself if we directed a fresh hearing of the appeal, for this would in my opinion, be within the prohibition of a anew trial” contained in the section. [p. 106]
(c) Criminal Procedure Code (V of 1898), Ss. 375 and 428 Distinction.
The term in which the power is given by these two section is vary to some extent. Under section 428, the appellate Court may call for additional evidence “if it thinks additional evidence to be necessary” but must give re sons for its action. Under Section 375, no reasons need be given but the additional evidence require must e upon a “point bearing upon the guilt or innocence of the accused”. [p. 91[J.
The limitations of section 438 are obvious. Such an order, stating reasons, would operate to exclude evidence which is not directly relevant to such reasons. [p. 91]K
The powers must be exercised judicially, that is to seem so as to preserve in all respects, the essential fairness and even-handed justice the proceedings. [p. 92]L
M. Saleem Senior Advocate, Federal Cour, )S. Jamil Hussain, Advocate, Federal Court with him) assisted by Shameem Hussain Kadri, Attorney, for Appellants.
Abdul Aziz Khan, Advocate-General, Punjab (C. M. Sharif, Advocate Federal Court, with him) assisted by Ijaz Ali, Attorney, for Respondent.
Dates for hearing: February 26th, 27th, 28th, 29th and March 1st 1952.

PLD 1952 Federal Court 108
(Appellate Jurisdiction)
Before Abdul Rashid, C, J., A. S. M. Akram and
Muhammad Munir, JJ.
DILAWAR —PETITIONER
Versus
CROWN—Respondent
Petition for Special Leave to Appeal No. 85 of 1951.
(From the judgment and order dated the 16th May 1951 of the Chief Court of Sind in Court Case NO. 10 of 1951/Criminal Appeal No. 57 of 1951).
Federal Court—Petition for special leave to appeal— When competent and desirable—Federal Court not a Court of Criminal Appeal—Presentation of petitions indiscriminately deprecated.
The cases in which the Federal Court would interfere on a petition for special leave to appeal fall into two distinct categories:
1. Where some irregularity has occurred in the trial ; and
2. Where a manifestly mistaken view of the evidence has been taken.
Where except the fact that a great quantity of copper wire was found in the possession of the appellant, there was no other legal evidence o the record which could be said to furnish a reason to believe that the copper wire was stolen or fraudulently obtained, there being only suggestions made by the prosecution to the effect that one Kanaiya Lal Marwari had an enormous stock of copper wire in his godown; that there was a recent theft of a large quantity of it from the said godown, that the copper wire found in the possession of the appellant was a part of the same stolen wire, but neither kunaiya Lal Marwari was examined in the case, nor the alleged theft nor the industry of the copper wire was legally established. [p. 22].
Held, (Per Akram J,), that there is thus nothing on the record which can be said to provide any legal basis for making the appellant liable to give a satisfactory account for his possession under section 4(1) of the Bengal Criminal Law Amendment Act, 1942.
It may be that a certain amount of suspicion is caused by the conduct of the appellant, but the word “believe” is a very much stronger word, and moreover the statute requires that the belief must be a reasonable one. [p. 22].
Per Cornelius, J,— The ration decidendi has been, in my opinion correctly appreciated by Mr. Justice Ellis in his judgment where he has observed as under :—
“I think it is not enough to show that there is a reason to suspect that the articles found have been stolen or fraudulently obtained. Something more is required and that something is ‘reason to believe’ ‘belief’ being a conviction of the mind arising not from the actual perception or knowledge but by way of inference of evidence received or information derived from others. It falls short of an ‘absolute’ certainty because the accused, in counting for his possession, may be able to show that the grounds upon which it is based are unsubstantial.” [p. 24].
Sukhu Kalwar v. The Emperor, 22 C. W N. 936; Rasik Lal Dad v. Emperor, 26 C. W. N. 712; and Chard Khan v. Emperor, 36 C. W. N. 512 ref.
(c) Evidence Act (I of 1872)S, 74, 76— Public documents—Differing orders of Division Bench of High Court—Case referred to third Judge—Accused applying for copies of Division Bench orders—Copies could not be refused on plea that orders were mere expressions of pinions not amounting to judgments.
An application was made on behalf of the appellant to the Dacca High Court for grant of copies of the judgment’s written by the learned Judges of the Division Bench, and was refused on the ground that the orders of the learned Judges of the Division Bench, and was refused on the ground that the orders for the learned Judges did not amount to judgments but were merely expressions of opinion. Accordingly, at the time when the case was argued before the third Judge, the appellant did not have the benefit of the analysis of evidence and the rations decidendi contained in the judgments for the two Judges by whom his case had first been heard and adjudicated upon:
Held, that it is difficult to appreciate the considerations which led to the refusal of these important documents to the appellant. No question of secrecy arose, for each judgment had been read out in open Court, and they were indubitably a part of the judicial proceedings, and as such public documents. While specific prejudice by non-delivery of required copies was not pleaded, it seems sufficiently plain that the party suffering the deprivation was placed at an appreciable disadvantage, without justification in law. He was entitled to take the full benefit of the views expressed, on the facts and the law involved in his case, by the two Judges of the Division Bench, to the same extent at least as he could use the reasoning adopted by Judges of the same Court in dealing with points, relevant to his case, which had arisen in earlier cases. [p. 23].
(d) Interpretation of Statutes—Statements of facts appended to Bills by ways of “Statements of Objects and Reasons”— Not relevant evidence in judicial proceeding.
No sanctity attaches to statements of fact occurring in a statute (Maxwell, Interpretation of Statutes 9th Edition page 319) and a fortiori, statements of fact contained in documents appended to Bills which never become part of the law and are only intended to serve as an aid to legislators and to the general public in following what may be described as the purport of the proposed measure, cannot ordinarily be regarded as, per se, relevant evidence in a judicial proceeding. [p. 28].
H.S. Suhrawardy, Senior Advocate, Federal Court, (B.A. Siddiqi, Advocate, Federal Court with him), Instructed by A.M. Abdullah, Attorney for Appellant.
Faiyaz Ali, Advocate-General of Pakistan, (Syed Modarris Ali, Advocate, Federal Court with him) instructed by Syed A.B. Muhammad Hussain, Attorney for Respondent.
Dates of hearing : 8th and 9th December, 1951.

PLD 1952 Federal Court 63
(Appellate Jurisdiction)
Before Abdul Rashid, C, J., A. S. M. Akram and
A.R. Cornelius, JJ.
AMINUL HOQUE¬—Appellant
Versus
CROWN—Respondent
Constitutional Appeal No. 5 of 1951
(On appeal from the judgment and order of the High Court of Judicature at Dacca, dated the 10th July, 1950, in Criminal Appeal No. 230 of 1950 and Death Reference No. 8 of 1950).
(f) Evidence Act (I of 1872), S. 33—“Incapable of giving evidence:— Must be proved with strictness— Counsel’s consent to evidence being transferred not enough.
When evidence given by a written in a judicial proceeding is sought to be used under section 33 in a subsequent judicial proceeding or in a later stage of the same judicial proceeding on the ground that the witness is incapable of giving the evidence that fact must be proved strictly [p. 67]A.
The fact that the counsel for the accused consented to the evidence of the witness being read under section 33 of the Sessions Court does not do away with the necessity of the Court being satisfied by proof that the witness was incapable of giving evidence. [p. 67]B.
Where the only evidence about the illness of a witness was that of the Sub-Inspector of Police, the statement of the witness recorded by the Committing Magistrate and brought on the Sessions record under section 33, Evidence Act, was excluded from consideration.
Chainchal Singh v. The Emperor A I R (33) 1946 P C I, ref.
(g) Confession— Recording Magistrate’s evidence before committing Magistrate transferred to Sessions record—Excluded from consideration, not having fulfilled requirements of S. 33, Evidence Act — No other evidence to prove confession —Confessions inadmissible.
(h) Federal Court—Holding improvement part of evidence ageist accused inadmissible—Whether would examine remaining evidence to form its own estimate of it.
When an important part of the evidence relied upon by the High Court has been held by the Federal Court to be inadmissible, it is the function of the Federal Court to examine the remaining evidence for itself and form its own estimate of the value of such evidence. [p. 70]C.
Chainchal Singh
Chanchil Singh v. Emperor, A I R (33) 1946 P C I ref.
(i) Criminal procedure Code (V of 1898), S 342— Putting a general question not enough—Accused’s attention must be called to vital points in evidence and his explanation sought—Nevertheless examination not to be for cross-examining accused or for filling up gaps in prosecution—Meant to assist accused to explain.
Section 342 Criminal P.C. enjoins that for the purposes of enabling the accused to explain in any circumstances appearing in the evidence against him he shall be questioned on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. It is not sufficient to put a general question to the accused whether he has anything to say about the charges leveled against him. When a point arises in the evidence against the accused which the Court considers vital, It is the duty of the judge to call the attention of the accused to the point, and to ask for an explanation. The whole object of enacting section 342 of the Criminal P. C. is that the attention of the accused should be drawn to the specific points in the evidence on which the prosecution claims that the case is made out against the accused, so that he may be able to give such explanation as he desires to give. It is true that section 342 was not intended for the purposes of cross-examining the accused or for filling up gaps in the case for the prosecution But it is no less serious an error to go to the opposite extreme, and , by excess of restraint, to defeat the primary objet of the section which is to assist the accused in explaining the circumstances which are relied upon by the prosecution as establishing the case against him. [pp. 70,71].D
Dauarkanath Varma v. King emperor 37 C W N 514 (P C) ref.
(j) Re-trial—Offence committed more than 2 years and 4 months before hearing of appeal—Crown’s request for retrial based mainly on desire to fill up gaps—Re-trial not ordered,
B. K. M. Baquer, Senior Advocate, Federal Court Modaris Ali Advocate, Federal Court with him), for Appellant.
A.K. Fazlul Haq, Advocate-General of East Bengal (Syed Modaris ali, Advocate, Federal court (with him), instructed by Syed A. B Mahmud Hussain, Attorney, for Respondent.
Dates of hearing: November 26, 27 and 29.

PLD 1952 Federal Court 71
(Appellate Jurisdiction)
Before Abdul Rashid, C, J., A. S. M. Akram and
A.R. Cornelius, JJ.
AMINUL HOQUE¬—Appellant
Versus
CROWN—Respondent
Criminal Appeal No. 11 of 1951, decided on 31st March, 1952.
(On appeal from the judgment and order of the High Court of Judicature at Lahore, dated 13th December, 1950 in Murder Reference No. 107 and Criminal Appeal No. 474 of 1950).
(c) Criminal Procedure Code (V of 1898). S.s 375. 428—Further inquiry or additional evidence at appellant stage—Should not be ordered to cure infirmities in prosecution case—Accused’s right to rebut such evidence —Denial of —Violation principles of natural justice.
(Per Abdul Rashid, C. J )— The provisions of sections 375 and 428 of the Code of Criminal Procedure are meant to be used in such a manner as to secure even-handed justice to both parties. They should not be utilized to cure all the infirmities in the prosecution case in the appellate Court. [p. 80]A.
To recall partisan witnesses to make additional statements at the appellate stage is an invitation for perjured evidence Section 428 of the Criminal Procedure Code should be availed of by an appellate Court only if additional evidence can be given by persons who are entirely unconnected with the parties and can therefore be expected to give an unbiased account of the occurrence. [pp. 77. 78]C.
It does not make the slightest difference whether the additional evidence is required by the Court or is produced by parties. [p. 79]C.
Where the defence wished to adduce evidence in rebuttal but the request was refused:
Held that the High Court had not exercised its discretion properly and that the refusal to grant an opportunity to the defence to rebut the evidence of Nawab. Muhammad Sadiqand Saidu Naul constituted a violation of the principles of natural justice and seriously prejudiced the case of the appellants. [p 80]D
Re. West Jewell Tin Mining Company (Weston’s Case) XL L T R p. 43; Sanders v. Sanders, XL V L T R p 637ref.
The prejudice caused to the appellants by te procedure adopted ata the hearing of the appeal I the High Court can only be remedied by eliminating all the evidence recorded in the appellate Court. [p. 80]G
(Per Cornelius, J.)—Despite the wide terms in which the power is expressed, it has only been exercised where the additional evidence was either not available at the trial, or the party concerned was prevented from producing it either by circumstances beyond its control, or by reason of misunderstanding or mistake. [p. 92]M.
Afit Kumar, Ghose, (LR 1944 Nag. 809): Akhtar Husain (K I R 1925 Pat. 526); Konda Reddi, (A I R 1930 Mad. 854) Hanumanthappa (A I R 1937 Mad. 181) (Allaway 17 Cr. App. R. 16, and Berry 18 Cr. App. R. 65); Hullet, (17 Cr. App. R. 8) Robinson (12 Cr. App, R. 226). Hamilton (13 Cr. App. R. 8) Robinson (12 Cr. App. R. 226), Hamilton (13Cr. App. R. 32)Warren (14 Cr. App. R.4); Ward (17 Cr. App. R. 65), ref.
When the record of the case, as prepared at the trial provided ample material for a just and proper decision on points, which the High Court sought to elucidate by means of the additional evidence they recorded, allowing the prosecution a further opportunity during the hearing of the appeal to clear up these doubts was not a judicial exercise of the discretion materially relied upon in their judgment dismissing the appeal and confirming the death sentences. There had thus been violation of a principle of law sufficient to attract the Court’s jurisdiction, as laid down in Bibhabati Devi v. Ramendra Narayan Roy, (A I R 1947 P C 19). It is necessary that this additional evidence should be excluded from consideration in determining the guilt or innocence of the appellants, which must rest exclusively o the evidence placed on the record at the trial. [pp. 104, 105] N,O
In regard to the first category the guiding consideration is whether the irregularity alleged is of a radical character and in substance amounts to the denial of a fair trial to an accused person, which is his elementary right. A mere regularity or departure from a statutory direction or mistake of law or misdirection cannot be a sufficient reason for granting special leave. To justify a petition for special leave to appeal the irregularity complained of must amount to a violation or disregard of some rule of procedure which is an essential constituent of a fair trial. Thus if the Court has approached the case as if the burden of proving his innocence lay on the accused person or if the accused has not been informed what the case against him is or if in the Judge’s charge the case of the accused has not been properly to the jury and their minds have not been directed to the real issue in the case of if the accused has not been given an opportunity to defined himself or permitted to cross-examine witnesses for the prosecution or if the Judge has converted himself into a witness or become a Judge in his own cause—in all these cases a case for interference is made out because the accused has been denied and elementary right. In such cases there is not only a disregard of the forms of legal process or violation of the principles of natural justice but the irregularity committed is so outrageous that if shakes the very foundations of justice. Another class of cases which falls I this category is where the trial has been conducted in a manner which is prohibited by law. There may also be cases falling in this category where the suggestion, if true, raises questions of great and general importance or show the due and orderly administration of law interrupted and diverted into a new course.
The second category of cases which would justify access to the Federal Court may generally be described as comprising that class of cases in which a fundamentally wrong view of the evidence has been taken. Thus where a man has been convicted on no evidence, or where the finding of guilty is based on a vast body of inadmissible evidence or the uncorroborated testimony of an accomplice or on the Judge’s personal knowledge and not on evidence, or where the evidence has been misread, or where the jury have been given a complete misdescription of the whole bearing of the evidence or where a man has been convicted solely on circumstantial evidence and the facts found by the High Court are reasonably compatible with his innocence, or where some material evidence in favour of the accused, which appears to the Federal Court to be almost decisive, has been overlookes, the Federal Court will have little hesitation in granting special leave to appal. For the same reason, this Court will not hesitate to interfere where the Court whose judgment is complained of has made endeavour, has arrived at a result so atrocious or ludicrous that no reasonable man could possibly approve of it. In all assumed a principle of natural justice has been contravened and the very basis of justice shocked. Special leave, however, interpretation of a provisoin of Criminal Law unless that provision embodies a rule of general importance to the wrongly construed or unless its interpretation presents a divergence of opinon among the High Courts which it is expedient to set at rest. [p. 111, 112]A.

PLD 1952 Federal Court 113
(Appellate Jurisdiction)
Before Abdul Rashid, C, J., Akram and Cornelius, JJ
ABDUL LATIF—Petitioner
Versus
CROWN—Respondent
Criminal Appeal No. 8 of 1951, decided on 2nd April, 1952.
(On appeal from the judgment and order of the High Court of Judicature at Lahore, dated 27th June, 1950 in Criminal Appeal No. 177 of 1950).
Confession—- Extra judicial— Before person taking prominent part from very beginning in prosecution of case against accused—Utmost care and caution necessary in basing conviction solely on solely on such confession— Corroborative evidence essential that confession was not only mae but also voluntary and true—Failure to question accused on fact of confession —Prejudice—Criminal Procedure Code (V of 1898), Ss. 164,342,364.
Where the accused was alleged to have confessed before a Lambardar who had been taking a prominent part from the beginning in prosecution of the case against him:
Held (Per. Akram, J)—No doubt an extra-judicial confession can be made the sole basis of a conviction, can be made the sole basis of a conviction, but it cannot be denied that in doing so utmost care and caution should be used; this became apparent from a consideration of the provisions of sections 164 and 364 Criminal Procedure Code. [p. 115]A.
Also that there should have been some corroborative evidence to the effect that he alleged confession was not only made but was also voluntary and true. [p. 115]B
Further that failure under section 342 of the Criminal Procedure Code, to draw the attention of the appellant of his confession in order to give him a chance to explain his position had seriously prejudiced the defence. [p. 115]C
Even cross-examination of the Lambardar in respect of the confession could not have been of much avail.
(Per Cornelius, J.)—An extra-judicial confession, in order to carry weight as evidence, requires to be supported by exceptional circumstances, favoring the belief that it was made, and that it is true. [p. 116]D.
The salient facts affecting the confession were that that at the outset, the case for the persecution rested on the evidence of two eye-witnesses, there being no mention of any confession and that the alleged confession was proved at the trial after the “eye-witness had denied all knowledge of the occurrence; secondly, that the accused; secondly, that the accused persons, so far form admitting even the possibility of a confession by either of them, had pleaded that the murderer was their uncle, Karam Elahi; and thirdly, that at the trial Latif was never asked whether he had confessed to Ghulam Qadir, and therefore had never had n opportunity of furnishing an explanation for this single piece of evidence, which was held sufficient to convict him. [pp. 115, 116]E.
Such a confession should be excluded from considerations.
Rahim Bukhsh, PLD 1952 F. A 1 ref.

PLD 1952 Federal Court 118
(Appellate Jurisdiction)
Before Abdul Rashid, C, J., A. S. M. Akram, and
A.R. Cornelius, JJ
Qazi AMAN ULLAH —Petitioner
Versus
CROWN—Respondent
Petition for Special Leave to Appeal No. 18 of 1952.
(On appeal from the judgment and order of the High Court of Judicature at Lahore, dated 24th February, 1952 in Criminal Miscellaneous No. 10 of 1952).
(a) Bail before arrest—Refused by High Court—Whether Federal Court would grant leave to appeal.
The disallowance of an application for bail before arrest is a matter which bears no resemblance to any in which the Federal Court would be prepared to consider the question whether it would rightly interfere. Nothing had occurred of a nature of shock the sense of justice. Indeed nothing in the nature of a judicial proceeding had yet been commenced, and therefore, the question of justice or injustice which alone could attract Federal Court’s special jurisdiction, had nor yet arisen. [p. 119]A.
(b) Advocate—Attempt to bring before Federal Court criminal matters clearly not satisfying conditions requisite for interference—May in certain circumstances transgress limits of professional propriety.
In view of the repeated and careful enunciation of the principles governing the Federal Court’s jurisdiction, in the relevant respect, attempts to bring before the Federal Court criminal matters, like the refusal by the High Court to grant bail before arrest which clearly do not satisfy the conditions requisite for interference by the Federal Court may, in certain circumstances, be through to transgress the limits of professional propriety. [p.110]B
Nasim Hassan, Advocate, Fedral Court, instructed by Nazir-ud-Din, Attorney for Petitioner.
PLD 1952 Federal Court 120
(Appellate Jurisdiction)
Before Abdul Rashid, C, J., A. S. M. Akram, and
A.R. Cornelius, JJ
HER HIGHNESS MUNAWAR JAHAN BEGUM
OF JUNAGADH—Appellant
Versus
CROWN—Respondent
Criminal Appeal No. 7 of 1952, decided on the 4th June, 1952.
(On appeal from the judgment and order of the Chief Court of Sind at Karachi, dated 27th March, 1952 in Criminal Miscellaneous No. 54 of 1952).
Foreign Sovereign—Status to be determined only on information supplied by appropriate Ministry of Government of Pakistan—No other facts or documents may be considered (Per Cornelius, J—In proper cases some inquiry advisable—Nawab of Junagadh, held not foreign sovereign.
The question whether the Nawab of Junagadh is a forcing sovereign so far as Pakistan is concerned can be determined only on the information supplied by the appropriate Ministry of the Government of Pakistan and no other facts or documents can be taken into consideration in determining the status of the Nawab of Junagadh. [p. 123]A.
(Per Abdul Rashid, C, J, )—The information supplied by the Government of Pakistan is conclusive on the subject. It must be held, therefore, that the Nawabof Junagadh is not a foreign sovereign. This question having raised in the Courts in 1952, it is not open to us to determine the question on the interpretation sought to the placed on the Instrument of Accession executed by the Nawab of Junagadh in September 1947 and accepted by the Governor-General of Pakistan. [p. 125]B.
The Nawab of Junagadh by entrusting the subject of External Affairs to the Government of Pakistan lost all international status and cannot, while in Pakistan, claim immunity from civil and criminal processes on the ground that he is a foreign sovereign. The State of Junagadh is now a part of the Federation of Pakistan, and all external sovereignty of the Units constituting the Federation has been absorbed by the Federal State, thus depriving the member states of their international status. [p. 125]C.
(Per A. S. M. Akram, J,)—If a foreign Government or its sovereign is not recognized by the Government of a particular country, the Courts of the country will not recognize such foreign Government or its sovereign [p. 127]D
The statement by the Foreign Office relating to the question whether a foreign State or Government has been recognized in conclusive and final. [p. 127]E
A sovereign who is not a foreign sovereign is not entitled to rights and privileges suggested by the International Law. [p. 129]F
Mere proof of status as a foreign sovereign is not sufficient to attract the rights and privileges of the International Law because it is further necessary to show (i) what actually the international by the State in which it is sought to be enforced. [p. 129]G
Whatever may be the International Law with regard to the question of immunity in capital crimes, the correct effecting any particular State unless the government of that States assents to or recognizes it. It is manifest that as none of the sovereign States will allow superiority in the others, to neither can dictate or prescribe and kind of law for the rest. The International Law, in the practice and usage long observed by civilized nations in their relations towards each other or in express international agreement” is given effect to by the Courts of Municipal Law only in so far as it is recognized either expressly or impliedly by the State from which those Courts derive their own jurisdiction and authority. [p. 130]H.
(Per Cornelius, J,)—It is accepted in the practice of the British Courts that, when faced with a certificate of sovereignty, it is not open to a Court to examine other evidence in order to invalidate this certificate; the certificate furnished conclusive evidence upon which the Court must act. Yet instances are not wanting in the British case-book—perhaps the Kelantan case is a fair example—where, despite the existence of patent drawbacks on the powers exercisable by a State, not only in the international sphere, but even in its domestic affairs, recognition of sovereignty has been recorded to it by te Government of the time, resulting in a complete denial of justice to the opponent, who was a subject.
Such cases appear to me to point to the advisability, in proper accedes, of some enquiry by the Courts into the facts and circumstances underlying the claim of sovereignty, which as received Governmental recognition. [p. 132]I
It is axiomatic that the expression law has no application in the case of unrestrained powers; International Law only acquires meaning in relation to a society or comity of independent State, and therefore the first condition of its application in relation to a new State might, I the positivist application in relation to be the fact of recognition by other states already included in such society or comity. This view has been expressed by Oppenheim in his valuable work on International Law in the following terms:—
“Through recognition only and exclusively, a State becomes an international person and a subject of International Law”. [p. 134]J.
A definition of the commencement of the existence of State has been attempted by J. L. Briefly, in his well-known book “The Law of Nations, which appears to me to set out very satisfactorily the conditions necessary for the birth of a new international person. I quote from page 122 of the 4th Edition:—-
“A new State comes into existence when a community acquires not momentarily, but with a reasonably probability of permanence, the essential characteristics of a State namely, an organized Government, a defined territory, and such degree of independence of control by any other State as to be capable of conducting its own international as relations”, {pp. 135]K
In actual fact, each Indian State has, sooner or later, acceded to one or the other Dominion. No. better proof to necessary or to be expected, having regard to the incidents of relations among States inter se, that such independent statehood as was acquired by the State of Junagadh by the lapse of British suzerainty, carried with it to “reasonable probability of performance” and that from its inception, its expectation of life was what the event proved, namely a merely momentary independent existence.
In this view of the matter, the references to sovereignty contained in the Instrument of Accession must be understood in a somewhat qualified sense. The acceptance of power in regard to external affairs qua the territory of Junagadh would not necessarily involved a concession that the Ruler possessed, much less that he exercised, any independent authority I the field of International Affairs.
As for the saving clause whereby the sovereignty of the Ruler of Junagadh was preserved, that too in my opinion must be understood in a strictly practical sense. It cannot, in any case, be construed as a concession that the Ruler of Junagadh was to continue even after his accsession to Pakistan, to enjoy the right to become an international person [p. 136]M
The sovereignty of the acceding State was intended to be merged in the sovereignty of the Federation.[p.137]N
The refusal of the Government of Pakistan to recognize the Nawab of Junagadh as a foreign sovereign is based on excellent grounds. No grounds appear for making any further enquiries on the subject. [. 137]O

PLD 1952 Federal Court 138
(Appellate Jurisdiction)
Before Abdul Rashid, C, J., A. S. M. Akram, and
A.R. Cornelius, JJ
MUHAMMAD YAHAT—Appellant
Versus
BATI and others —Respondent
Civil Appeal No.2 of 1951, decided on 4th June, 1952.
(On appeal from the judgment and order of the High Court of Judicature at Lahore, dated 16th January, 1950 in R. F. A. No. 77 of 1947).
(a) Res-judicata—Revenue Court decided former suit (for ejectment) on basis of acquisition by defendants of title by prescription—Subsequent surt by plaintiff in Civil Court involving question of title by prescription—Held. Not res-judicata===Revenue Court not Court of exclusive jurisdiction in matters not enumerated in S. 77, Punjab Tenancy Act (XVI of 1887)
On reference to section 77, Punjab Tenancy Act, which exhaustively sets out the matters, within the scope of the Act, in respect of which the jurisdiction of Revenue Courts is exclusive, there is none which can be thought to include, however, indirectly, the question of acquisition of title by prescription. [p. 145]A
The jurisdiction exercisable by a Revenue Court in respect of matters outside those enumerated in section 77 is to be regarded, in these circumstances, rather as an extended jurisdiction, or one consequential upon the reference, than as e exclusive jurisdiction. For, as reference to section 98 of the same Act will show, any mater arising in a suit before a Revenue Court which suit Court regards as more proper for decision by a Civil Court may be reserved by such Court and required to be submitted for decision by a Civil Court. A Revenue Court’s on a matter not falling within section 77 is not a decision within its exclusive jurisdiction, and, consequently, no finality can be claimed for it, in any subsequent suit in a Court of general jurisdiction [p/ 145]B
(a) Adverse possession—Tenant cannot acquire title by prescription solely on the ground that for a period exceeding 12 years he had paid nothing more than land revenue and cesses as consideration for occupying the land.
A Revenue Court exceeds its function, and acts I disregarded of the principles of revenue administration and law in reaching the conclusion that the occupant tenants had become owners by prescription, solely on the ground that for a period exceeding twele years before the suit, they had been shown to have paid nothing more than the land revenue and cesses, as consideration for holding the land. Tenants who pay nothing more than land revenue and cesses are by no means uncommon in the Punjab. [p. 145]C
This may also be clearly deducted from certain provisions contained in section 5 of the Punjab Tenancy Act, which confer a right of permanent occupancy in the capacity of tenants, but no higher right, on persons who, in 1887 had been occupying land for certain lengthy periods which are specified and had paid no rent therefore beyond the month of the land revenue thereof and the rates and cesses for the time being chargeable thereon. And where, as by section 9, it is provided that no tenant shall acquire a right of occupancy by mere lapse of time, it is hardly to be supposed that the much larger right of ownership cold be so acquired. [p. 146]D
“Tenant” is defined in the Punjab Tenancy Act—section 4(5) as “ a person who holds land under another person land is, or but for a special contract would be, liable to pay rent for that land to that other person”. The essential characteristics of the status are (a) subordination to a landlord and (b) liability to pay rent. [p. 146]E
By a provision in the wajib-ul-arz of the village, the larger area of waste common land was allowed to be brought under cultivation by proprietors, occupancy tenants and non=occupancy tenants indifferently, subject only to payment of malikana dues (i.e. land revenue and cesses) which sums were to be divided among the proprietors in proportion to their khewat i.e. ancestral shares. Any supposition that, by utilizing this freedom, those reclaiming the waste became owners of the area they cultivated or held such areas adversely to the village proprietary body is completely negative by the absence of any word connoting transfer of tile, or of any independent right, to such persons/ [p. 147]F
It is not permissible for the Revenue Courts to go behind the decision of Civil Courts and re-open matters already decided by competent judicial authority. In suit for rent where by claim was based on a Civil Court decree, it was altogether wrong to enter on enquiries which substantially involved the issue whether the decree had been rightly given or not. [p. 146]G.

PLD 1952 Federal Court 148
(Appellate Jurisdiction)
Before Abdul Rashid, C, J., A. S. M. Akram, and
A.R. Cornelius, JJ
ALLAH YAR—Appellant
Versus
CROWN—Respondent
Criminal Appeal No.3 of 1952.
(On appeal from the judgment and order of the High Court of Judicature at Lahore, dated 11th April, 1951 in Criminal Appeal No. 652 of 1950).
Criminal Procedure Code (V of 1898), S. 286 (2)—Prosecutor not bound to examine all witnesses, named in calendar.
A witness M. N had stated in the Committing Court that he knew mothering about the murder and was in a different village when it took place. He denied that he and received bribe from the defence for giving false evidence. In spite of this, his name was included in the calendar of prosecution witnesses, but at the trial, the Crown prosecutor did not call him in evidence, declaring that he had been “won over” by the defence. [p. 149]A.
Held that the Crown prosecutor exercised a right subscription in declining to call M. N. as witness for the Crown and that all possibility of prejudice to the accused or to the due course of justice was excluded by the fact that, having been cited in the prosecution calendar M. N. was available at the trial to be called and examined by the defence, if they thought it necessary. [p. 161]B.

PLD 1952 Privy Council 7
Present: Lod Normand, Lord Tucker, Lord Asquith of
Bishopstone, Lord Cohen
FIRESTONE TIRE AND RUBBER COMPAY
(S.S) LIMITES —Appellant
. Versus
SINGAPRE HARBOUR BOARD—Respondent
Privy Council Appeal No.8 of 1951, decided on 10th June 1952, from the Court of Appeal for the Colony of Singapore, Island of Singapore
Although the word “Public Authority do not appear in the section it has long been settled law that the words “any reason” must be limited so as to apply only to public authorities or persons acting on behalf of public authorities. [p. 10]A
Considerations that are relevant to, though not necessarily always decisive of the issue whether a duty or authority is public are :–

1. It is essential to the protection afforded by the Statute that the act or default in question should be in the discharge of a public duty or the exercise of a public authority. This assumes that there are duties and authorities which are not public. )see per Lord Buckmaster in the Bradford case at page 427).
2. In deciding whether the duty or authority ahs this public quality it is sometimes relevant to consider whether it rises out of or is imposed by a contract voluntarily entered into by the public authority with a individual with whom it is under no obligation to contract.
3. The mere fact, however, that in the discharge of its duty or the exercise of its authority the public authority may have made a contract does not of itself deprive the duty or authority of its public quality. The existence or absence of a contract is not a decisive test.) See per Lord Shaw in the Bradford Corporation case._
4. Effect must be given to the word “authority”. This excludes the test of obligatory as opposed to permissive powers.
Carry on the business of builders and repairers of ships and machinery, of wharfingers and warehousemen, of dealers in coal and other kinds of fuel, and dealers in stores connected with or required in the above-named business”. [p. 12]C
The board having constructed or become possessed of adjunct to a port such as Singapore could elect whether to let them out to others for periods less than 3 years (or with consent of the Governor for longer periods) or themselves to operate them as wharfingers and warehousemen and levy rates for the wharfingers or storage of goods therein. Having chosen the latter alternative they did not thereby cease to function as a Harbor Board and undertake surely subsidiary activity of a non-public nature. They were supplying facilities essential to the shipping community in a one of the ways authorized by the Ordinance by which they were created a Harbor Board charged with the management and control of the port and were thus fulfilling one of the main purposes for which they had been given statutory powers. [p. 13]D.

PLD 1952 Privy Council 15
Present: Lod Normand, Lord Tucker, Lord Asquith of
Bishopstone, Lord Cohen
THE COMMISSIONER OF INCOME TAX. COLOMBO–
. Versus
MRS. A. J. SUTHERLAND—Respondent
Privy Council Appeal No.41 of 1951, decided on 10th June 1952, from the Supreme Court of Ceylon.
Income-Tax Ordinance, Ceylon )Chapter 188). S. 73 (7)—Opinions of employer company about intendment of contract with employee-assessee irrelevant—Construction a matter of Law not of evidence—Payment, whether ex-gratia or in discharge of contractual obligation—Best and primary evidence is contract itself—“ Normal 4 years contract with six months’ leave on full pay” Means, no payment of leave pay if leave was not taken.
The opinions of the employer company about the intendment of the contract with the employee-assessee are irrelevant,
Though such opinions may have been received in evidence under section 73(7) of the Ordinance they are not in law admissible as aids t he construction of the contract.
The language of section 73(7) is very wide but is does not go so far as to authorize the Board to ignore the rule that construction is a matter of law and not of evidence.
The note written in the income-tax return made by the company, does not help. A statement and in a return is evidence against those who make the return, but statements s made by employers in returning the income of an employee are not evidence against him. [p. 20]A
When the true question is whether is payment was made ex gratia o in discharge of a contractual obligation the primary and best evidence is the contract. If the contract is in writing or, if it is oral but its terms are known beyond doubt, the question whether the payment was contractual depends on the contract alone. But if the contract is oral and if the direct evidence leaves it in doubt whether or not it contained a term providing for the payment it is legitimate to have regard to the circumstances surrounding the payment and receipt, and in such a case the evidence of the surrounding circumstances may be used to show what the terms of the contract in fact were. [p. 20]B/
Where the words to be construed were “ a normal 4-year contract with six months leave on full pay”;
Held, that there was no ambiguity in this description; it means a contract for fur years service with six months leave, which leave shall be on full pay. [p. 21]C
The contract therefore did not provide for any payment of leave pay except on a contingency which was never fulfilled.

PLD 1952 Privy Council 21
Present: Lod Normand, Lord Tucker, Lord Asquith of
Bishopstone, Lord Cohen
MUHAMMAD AKKBAR-ABDUL SATTAR—Appellant
. Versus
W.L. BOGTSTRA and another—Respondent
Privy Council Appeal No.19 of 1951, decided on 26th June 1952, from the Supreme Court of Ceylon.
An appellant tribunal would not ordinarily interfere with the finding of fact of a Court of first instance: but this principle is not without exception, Where the facts are such that the appellate tribunal is itself in a as good a position as the original Court to sift and weigh the evidence and where in particular the oral testimony has not received in the lower Court that consideration which should have been bestowed on it in the light of the attendant circumstances which cannot lie the appellate tribunal would not feel itself trammeled by the trial Judge’s view in reaching o its own a decision on appeal. Besides where the disbelief of a witness e expressed by the trail Curt is based upon demeanor that is a strong circumstance which the appellate Court would give full weight to; but where that disbelief is based on the ground that the witness has contradicted himself and where on examination the contradictions do not amount to anything more than an incapacity to explain or remember after a period of years certain facts, the appellate tribunal would be the more unfitted to examine the evidence afresh and arrive at an independent decision.[pp. 26, 27]A.
However, excellent a Judge’s note of evidence may be (and the note in the present case appeared to their Lordships to have been both fully and carefully made), the cases must indeed be are where, no transcript being available, the Appellate Court in a case involving the veracity of a witness can properly disturb the finding of fact of the trial Judge who made the note.[pp. 28,29]E.
The appellate put in some entries from a daybook which he had kept in connection with a business formerly carried on by him and in which he had, until he closed down that business, made certain entries as to his receipts from the respondents. [pp. 24,25]B
No objection was taken to the admission of these entries either before the trial Judge or before the Supreme Court on appeal [p. 25]C.
Held, that the objection could not be sustained at the late at age of appeal to the Privy Council.
The appellant had given express evidence which if accepted justified the trial Judge’s judgment. The trial Judge treated the entries as supporting the veracity of the appeallate’s evidence and he was entitled so to do. [p. 28]D

PLD 1952 Privy Council 29
Present: Viscount Simon, Lord Normand, Lord Radcliffe,
Lord Asquith of Bishopstone and Lord Cohen
THE ATTPRMEU-GENERAL OF CANADA
And another ——Appellant
. Versus
HALLET AND CARRY LIMITED and another —Respondents
Privy Council Appeal No.32 of 1951, decided on 20th May 1952, from the Supreme Court of Canada,
Where the validity of the vesting provision of the Order in Council under section 2(1) of the National Emergency Traditional Powers Act (1945) was attacked on several grounds among them being that its real purpose was not be carry out any of the purposed specified in the Act of 1945 but to confiscate the profits that would otherwise have been made by a certain class of owners of barley or to exact an impost from them, that the Order was not in fact necessary for or related to any of the purposes of the Act and was therefore not valid exercise of any of the powers which the Act conferred. [pp 35, 26]A.
Held, the Orders that are valid under the Act are such orders as the Governor in Council may by reason of the continued existence of the emergency deem necessary of advisable for any of the specified purposes. The preamble of this Order states that it is necessary by reason of the continued existence of the emergency to effect the vesting in the Bard of such holdings as re now in question “for the purpose of maintaining, controlling and regulating supplies and pries, to ensure economic stability and an orderly transition to conditions of peace”. How then can a Court o Law decide that the vesting was for another and extraneous purpose or hold that what the Governor in Council has declared to be necessary for the purpose he has stated ? There is no warrant at all for presenting this as a case in which powers entrusted for one purpose are deliberately used with the design of achieving another, itself unauthorized or actually forbidden. If bad faith of that kind can be established, a Curt of Law may intervene. To speak of the “real purpose” of this Order as being that of confiscating profits is to confuse means with ends, for the true question is whether it can be said that the Governor in Council could not have deemed it necessary to take this step as a means incidental to the realization of the take this step as a means incidental to the realization of the purposes stated in this Order. Clearly be could. Governor authority, which had hitherto depressed, was now to raise prices and those responsible might well feel that they must accompany this action with a requisition of some of the profits that they thus created. Nor is this a case in which the Order shows on the face of it a misconstruction of the enabling Act or a failure to comply with the conditions which that Act has prescribed for the exercise of its powers. On the contrary the Order shows on its face compliance with those conditions. This is an Oder which not only recites that the Governor in Council regards the making of it as necessary for authorized upon him by the 1945 Act. An order so expressed leave no ground for a judicial enquiry whether the Governor can have intended to exercise these powers, a kind of enquiry which Court has sometimes found itself called upon to make in a case where the instrument impugned is itself ambiguous. [P. 36]B
There is no better way of approaching he interpretation of a statue than to endeavor to appreciate the general objects that it serves and to give its words their natural meaning in the light of that object. They are many so-called rules of construction that Courts of law have resorted to in their interpretation of statutes, but the paramount rule remains that every statute is to be expounded according to its manifest or expressed intention. Pp. 40]C.
There is a well known general principle that statutes which encroach upon the rights of the subject, whether as regards person or property, are subject to a strict construction. Most statutes can be shown to achieve such an encroachment in some form or another, and the general principle means no more tan that, where the import of some enactment is inconclusive or ambiguous, the Court may properly lean in favor of an interpretation that leaves private rights undisturbed.[p. 40]D
There is no rule of construction that general words are incapable of interfering with private rights and that such rights can only be trenched upon where express power is given to do so. [p. 41]E.

PLD 1952 Privy Council 42
Present: Lord Perter,, Lord Normand, Lord Morton of Henryton,
Lord Asquith of Bishopstone, Lord Cohen,
CANADA SEAMSHIP LINES LIMITED ——Appellant
. Versus
THE KING —Respondents
Privy Council Appeal No15 of 1951, decided on 20st January 1952, from the Supreme Court of Canada,
If a contracting party wishes to limit his liability in respect f negligence, he must do so I clear terms in the absence of which the clause is construed as relating to a liability not based on negligence. [p. 48]A
The duty of a Court in approaching he considerations of such clauses may be summarized as follows:—
(1) If the clause contains language which expressly exempts the person in whose favour it is mad e(hereinafter called “the preferens” from the consequences of the negligence of his sown servants, effect must be given to that provisions,
(2) If there is no express reference to negligence, the Court must consider whether the words used are wide enough in their ordinary meaning, to cover negligence in the part of the servants o the proferens. If a doubt arises of this point, it must be resoled against the proferens.
(3) If the words used are wise enough for the above purpose, the Court must then consider whether the head of damage may eased on some ground other that heat of negligence. The ”other ground” must not be so fanciful or remote the proferens cannot be supposed to have desired protection against it; but subject to this qualification, the existence of a possible head of damage other than that of negligence is fatal to the proferens even if the words used are prima facie wide enough to cover negligence on the part o his servants. [p. 48]B
Where the important clauses of lease were:
That the Lessee shall not have any claim or demand against the Lessor for detriment, damage or injury of any nature to the said land, the said shed, the said platform and the said canopy, or to any motor or other vehicles, materials, supplies, goods, articles, effects or thins at any time brought, placed, made or being upon the said land, the said platform or in the said shed.
That the Lessor will, at all times during the currency of this Lease, at His own cost and expense, maintain the said shed exclusive of the said platform and the said canopy.
That the Lessee shall at all times indemnify and safe harmless the Lessor from and against all claims and demands loss, costs, damages, actions, suits or other proceedings by whomsoever made, brought or prosecuted, in any manner based upon, occasioned by or attribute to the execution of these Persons, or any action taken or things done or maintained by virtue thereof, or the exercise in any manner of rights arising hereunder;
Held. That the Lessor had failed to limit its liability in respect of negligence in clear terms.
The decision therefore was against the Crown in accordance with the principles already stated.[pp. 44,45,50]C, D, E.

PLD 1952 Privy Council 53
Present:, Lord Normand, Lord Morton of Henryton, Lord Reig
Lord Asquith of Bishopstone, Lord Cohen,
MINERALS SEPARATION NORTH AMERICAN
CORPORATION ——Appellant
. Versus
NORANDA MINES, LIMITED —Respondents
Privy Council Appeal No 405 of 1950, decided on 5th February 1952, from the Supreme Court of Canada,
“It is duty of a patentee to state clearly and distinctly, either in direct words or by clear and distinct reference, the nature and limits of what he claims. If the uses language which, when fairly read, is avoidably obscure or ambiguous, the Patent is invalid whether the defect be due to design, or to carelessness or to want of skill. Where the invention is difficult to explain due allowance will, of course, be made for any resulting difficulty in the language. But mothering can excuse the use of ambiguous language when simple language can easily be employed, and the only safe way is for the patentee to do his best to be clear and intelligible”. Pp. 58, 59].

PLD 1952 Privy Council 63
Present:, Lord Normand, Lord Redclife, Lort Tucker, and Lord
Asquith of Bishopstone,
WEE BOO LAT ——Appellant
. Versus
HOHN LAYCOCK and others —Respondents
Privy Council Appeal No 15 of 1949, decided on 24th March 1952, from the High Court of Appeal of the Straits Settlements, Settlement of Singapur,
The concluding paragraph of judgment said:
“My impression is that everyone know that the planning was adopted. Her husband, the second defendant, was so informed when he married her and has refused to support his wife in a claim which ought never to have been made,
This paragraph id not enter into the ground of judgment and the Judge merely took occasion to say that the conclusion at which he had already arrived agreed with the knowledge of the appellant’s family and their friends about appellant’s status.
Held, it was not necessary to consider whether the evidence of the appellant’s husband that he had been informed by friends that the appellant was adopted was admissible or not, for it was not part of the evidence relied on as the ground of judgment.
The judgment did not proceed on any evidence of hearsay character. The reasons for the decision where based entirely upon evidence the admissibility of which could not be questioned.
The judgment was not vitiated.

PLD 1952 Privy Council 65
Present:, Lord Normand, Lord Redclife, Lort Tucker, and Lord
Asquith of Bishopstone,
HERBERT LAMBE WILLIAMS ——Appellant
. Versus
EDGAR RODERIC WILLIANS —Respondents
Privy Council Appeal No 29 of 1950, decided on 27th March 1952, from the Supreme Court of Bermuda,
Will –Construction—Bequest of a “sum of five thousand pounds of capital I have invested on the partnership business…Amount to specific legacy of five thousand pounds.
The true view is that the clause of the Will …invested in the …. Business” can only refer to a fund, of money arising in the future, there is no difference in practical significance between “of” and out of”. [p. 68]B.

PLD 1952 Privy Council 69
Present:, Viscount Simon, Lorder Porter, Lord Oaksey,
Lord Radcliffe, and Sir Alfred Bucknill
THE SULTAN OF JOHORE ——Appellant
. Versus
ABUBAKAR TUNKU ARIS BENDAHAR and others—-Respondents
Privy Council Appeal No 45 of 1950, decided on 22nd April, 1952, from the Court o Appeal of the Colony of Singapore,
(a) Foreign Sovereign (Sultan of Johre) Status conclusively established by certificate issue by appropriate Secretary of State on behalf of Crown. [p. 75].
(b) Foreign Sovereign (Sultan of Johore)—Status waived—By Sovereign himself starting proceedings before Japanese Court during perid of occupation—Decision of Japanese Court liable to the set aside by application before a Court of the Colony after Japanese had been driven out—Proceedings before Court of the Colony, held not new but a continuation of original proceeding’s—Foreign Sovereign cold not object to being made respondent in such proceedings—Japanese Judgment and Civil Proceedings Ordinance 1946 (Singapore Ordinance No. 37 of 1946). S.3.
The appellant (Sultan of Johore) himself started the proceedings before the Japanese Court, thereby invoking its jurisdiction on his behalf. As plaintiff t he obtained the decree declaring that he was the beneficial owner of the properties in question, If therefore, the steps taken by the respondents with a view to reversing this decision are in the nature of an appeal from it to a Court having jurisdiction to reverse the decision which the appellant has obtained, he could not object to being made respondent in these appeal proceedings, for its original submission to the original Court binds him to accept the jurisdiction on Appeal. If, on the other hand, the respondents application to the High Court, of the Colony of Singapore to reverse the decree is a “new” proceedings, and not a continuation of the previous one, the appellant’s objection that he is a foreign sovereign would prevail, so far as the new proceeding impinged upon his sovereign immunity. [p.76]A
The application of the respondents is connected with the very matter raised by the appellant in the Japanese Court, viz., the title to these properties. Section 3 of he Ordinance 37 of 1946, upon its true construction authorized an application in the nature of an appeal from the Japanese decree. This Ordinance does not treat Japanese decrees as of no effect Neither does it treat them as conclusive. It provides for their review, with the result that they might either be continued or modified or reversed. The procedure authorized is essentially a carrying on of the proceeding already instituted and not a new and distinct proceeding. The language of section 3 actually speaks of an Appeal, and the purpose of the order is to provide a means of revising and, if necessary, correcting decree made by the Japanese Court during the occupation.
In the present instance, the Japanese Court has decided whether rightly or wrongly, that deeds previously executed by the appellant which purported to convey his private property in Singapore to others were invalid and that the properties still belong to him. In deciding this issue, the proper law to apply to the question of title is the same as it was before the Japanese occupation, in a such as military occupation, and even annexation, does not in itself change the law in the area occupied; the only change is into Court and in the Judges who are to apply the law. The question, therefore, which is raised by the Originating Summons issued by the respondents and which is to be determined by the High Court of the Colony of Singapore is whether the decision of the Japanese Court was right or wrong, and to determine this the appellant is made respondent in what is in substance an appeal in proceedings which, by force of the Ordinance of 1946, are a continuance of the proceedings which the appellant himself instituted, and in any case are put in the same position as all appeal by section 3. [p.77]D.
Held : Their Lordships do not consider that there has been finally established in England (from whose rules the rules to be applied in the Court at Singapore would not differ) any absolute rule that a foreign independent sovereign cannot be impleaded in our Courts in any circumstances. (Obeter) [. 77]D.

PLD 1952 Privy Council 79
Present:, Viscount Simon, Lord Porter, Lord Oaksey,
Lord Radcliffe, and Sir Alfred Bucknill
JAMES JOSEPH GRAY—-Appellant
. Versus
NEW AUGARITA FORCUPINE MINES LIMITED —-Respondents
Privy Council Appeal No 18 of 1951, decided on 24th March, 1952, from the Court of Appeal for Ontario.
There are certain special obligations upon a director who places himself in the position of contracting with his company. The general principle is that such a contract is not binding on the company, for a director is not entitled to place himself in a position which his interest is in conflict with his duty. The company has a right to the services of its directions as an entire board. Even if the contract is not avoided, whether because the company elects to affirm it or because circumstances have rendered it incapable of rescission, the director remains accountable to the company of any profit that he may have realized by the deal. Subject to any statutory requirements that cannot be dispensed with, it is open to companies to make such provisions as they please for the purpose of modifying the incidence of this general principle. [p. 89]A.
A director is not permitted to vote upon a Board resolution dealing with such a contract or arrangement and he could only retain for himself any profit arising from the transaction if at the meeting which passed the resolution he had disclosed to his colleagues the “nature of his interest”. [p.89]B.
A director who wishes to keep for himself the benefit arising from some deal with his company has to establish that he has satisfied all necessary conditions. The onus is open him. [p. 89]E.
There is not precise formula that will determine the extent of detail that is called for when a director declares his interest or the nature of his interest. Rightly understood, the two things mean the same,. The amount of detail required must end in each case upon the nature of the contract or arrangement proposed and the context in which it arises. It can rarely be enough for a director to say “I must remind you that I am interested” and to leave it at that unless there is some special provision in a company’s articles that makes such a general warning sufficient. His declaration must make his colleagues “fully informed of the real state of things”, If it is material to their judgment that they should now not merely that he as an interest, but what it is sand how far it goes, taken he must see to it that they are informed. [p.90]F.
It a trustee has placed himself in a position in which his interest conflicts with his duty and has not discharged himself from reasonability to account for the profits and this interest has secured for him it is neither here not there to speculate whether, if he had done his duty, he would not have been left in possession of the same amount of profit. It has often been said that a trustee who is accountable, is not the less accountable if he shows that the transaction impugned is both reasonable and fair and the principle is the same. [pp. 90, 91]G.
The case was rested upon allegations of fraud in the sense of positive deceit or misrepresentation and the Statement of Claim was primarily drawn so as to set up such a case, that special reliance was intended to the placed upon the (determined) director’s obligations as a director and upon his breathes of fiduciary duty. [p. 89]D

PLD 1952 Privy Council 193
Present:, Lord Normand, Lord Radcliffe, and Lord Asquith
of Bishopstone
AKENOLA MAJA —-Appellant
. Versus
THE CHIEF SECRETARY TO THE GOVERNMENT —-Respondents
Privy Council Appeal No. 50 of 1950, decided on 30th April, 1952, from the Western African Court of Appeal.
In proceedings for the compulsory acquisition of land there is first the question whether, assuming that under the relevant and appropriate Ordinance a claim lies in respect of disturbance or potential value of land, there are any facts on which such a claim could be funded. If there are not, it is unnecessary to consider the provisions of either of the Ordinance or to determine any of the legal questions.

PLD 1952 Privy Council 96
Present: Lord Normand, Lord Radcliffe, and Lord Asquith
of Bishopstone
NGARA HOTEL MIMITED and others —-Appellant
. Versus
RAJABALLY KASSAM SULEMENT and others —-Respondents
Privy Council Appeal No.11 of 1950, decided on 22nd April, 1952, from the Court of Appeal for Eastern Africa.
The provisions of section 112 manifestly reproduce, in essentials, the law of England as to waiver. The question in each case is whether the leasor with knowledge of a breach of covenant entitling him to re-enter, accepted rent due to respect of a period subsequent to such breach or by some other unequivocal act elected to affirm the tenancy. [p. 100]A.
The English law on this subject is well-settled. The breach of a covenant in a lease, upon which, under the terms of the lease, the landlord is entitled to re-enter, makes the leave voidable at his option if and when it becomes known to him. But if, after he has acquired the necessary knowledge he affirms the tenancy, he cannot afterwards avoid it; and he affirms it, if with that knowledge he accepts rent in respect of a period subsequent to the breach or levies distress for such rent or by some other unequivocal act treats the lease as still subsisting. Until 1882 he was entitled, if in the circumstances he desired to avoid the lease, to re-enter, physically, or to issue a writ in ejectment, without previous notice. The Conveyancing Act, 1881, required him as a precondition of doing either in the case of the breach of certain covenants, to give a notice specifying the breach and calling on the lessee to remedy it. It was not until the Law of Property Act, 1925 section 146 (1), that similar requirement was extended to breaches of a covenant not to assign, underlet or part with possession of the premises let. At common law a writ could be issued without preliminaries.
The view that the mere institution of a suit for possession without more is an “act showing the landlord’s intention to determine the lease”, approved. [p’ 99]B.
The act of applying to the Rent Control Board for leave to take proceedings for possession is clearly an act “showing the landlord’s intention to determine the lease”. [102]C.
By subsequent amending legislation 1929, which applied expressly made necessary. But his provision was not extended to Kenya and was ignored in this case. [p. 102]E.

PLD 1952 Privy Council 102
Present: Lord Normand, Lord Radcliffe, and Lord Asquith
of Bishopstone
MUMUDU LAGUNJU —-Appellant
. Versus
OLUBADAN-IN-COUNCIL and another —-Respondents
Privy Council Appeal No.25 of 1950, decided on 5th May, 1952, from Western African Court of Appeal.
Section 2(2) in terms commits to the Governor exclusively the duty of judging whether an appointment has been made in accordance with native law and custom and the jurisdiction at the Courts to decide that question is absolutely and un=conditionally excluded by this subsection. The requirement that there shall be due enquiry and consultation with the person concerned in the selection is not a condition precedent to the Governor’s jurisdiction as sole Judge or to the Governor’s valid exercise of his function of sole Judge. If he comes to a decision without having made due enquiry or without having consulted with the persons concerned in the selection there can be no doubt that in an appropriate action it should be competent for the Courts to set his decision aside. But in no circumstances can the Courts assume to themselves jurisdiction to decide that an appointment has or has not been made in accordance with native law or custom, and an action framed in order to submit that question to the Courts decision is incompetent. [p 108]A
Due enquiry is not necessarily public enquiry, but it does imply that the parties to the dispute should be given an opportunity of being heard by the Governor as Judge between them, and therefore that the data on which the enquiry is to take place should be intimated to them and that they should be invited to attend and state their case. Whiteout that the substantial requirements of justice would not be fulfilled. [p. 109]B.
In intimating a decision under section 2(2) it is important also that the Governor should unambiguously declare that the appointment had (or had not) been made in accordance with native law and custom. The ordinance does not in terms impose this form in giving a decision, but the proper performance of the Governor’s judicial duty requires that there should be in a matter of such importance to the native population a clear public intimation that the judicial duty expressly laid the Governor has been exactly fulfilled. [p. 109]C.
There may be cases in which this Board, finding itself unable to grant the specific relief claimed, would yet be disposed to grant some other relief if equity and justice warranted it. [p. 109]D.

PLD 1952 Privy Council 110
Present: Lord Chief Justice of England (Lord Goddard),
Lord Normand, Lord Radcliffe, and Lord Cohen
ROBBERT J. McMASTER and another—Appellant
. Versus
NORMAN W. RYRNE —-Respondents
Privy Council Appeal No.29 of 1951, decided on 24 th April, 1952, from the Court of Appeal for Ontario.
The duty of the solicitor may continue after the relationship of solicitor and client in its subject sense has been discontinued. [p. 116]A.
The respondent solicitor is an interview with his client on 2nd March, 1947 obtained from his client a fresh opinion on the latter’s shares in C.S. Ltd for 30 days at a certain price.
Held that notwithstanding that the respondent was not acting as solicitor for McMaster in the transaction in dispute the confidence arising from the relationship of solicitor and client which had existed between the respondent and McMaster must be taken to have continued to be in existence at the time of interview between them on the 22nd March, 1947. [p. 117]B.
The solicitor, therefore, owed a day of disclosure to his client of information bearing on the transaction. The necessary for disclosure was to be tested not by the probable reaction of the particular individual to whom the disclosure should have been made but by what would be the natural reaction of the reasonable man. [p. 117]E.
The respondent did not discharge that duty unless he communicated to his client all material facts within his knowledge. [. 117]E.
That it must be shown that the client had had independent advice is not an invariable rule whatever might be the nature the transaction of dispute.
The question whether the facts of a case make independent advice indispensable is a matter for th3e judge who tries the issue. When all the facts have been ascertained the trial judge may, or he may not, consider that the question what was the proper price to ask for the shares was one which McMaster as business man could well determine for himself if fully informed as to the facts. [p. 118]F.

PLD 1952 Privy Council 119
Present: Lord Normand, Lord Oaksey and Lord Tucker
LEJZOR TEPER —Appellant
. Versus
THE QUEEN —-Respondents
Privy Council Appeal No.47 of 1951, decided on 28 th May, 1952, from the Supreme Court British Guiana..
The rule against the admission of hearsay evidence is fundamental. It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination and the light which his demeanour would through upon his testimony is lost. Nevertheless the rule admits of certain carefully safeguarded and limited exceptions, one of which is that words may be proved when they form part of the res gestate. The rules controlling this exception are common to the jurisprudence of British Guiana, England and Scotland. It appears to rest of ultimately on two propositions, that human utterance is both a fact and a means of communication, and that human action may be so interwoven with words the significance of the action cannot be understood without the correlative words and the dissociation of the words from the action would impede the discovery of truth. But the judicial applications of these two propositions, which do not always combine harmoniously, have never been precisely formulated in a general principle. Their Lordship will not attempt to arrive at a general formula, not is it necessary to review all of the considerable number of case cite in the words sought. This at least may be said, that it is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it, in time, placed and circumstances, that they are part of the thing being done, and so an item or part of real evidence and not merely a reported statement. [pp. 122, 123]A.
The special danger of allowing hearsay evidence for the purpose of identification requires that it shall only be allowed if it satisfies the strictest test of close association with the event in time, place and circumstances. [p.124]B.
There is yet another proposition which can be affirmed, that for identification purpose in a criminal trial, the event with which the words sought to be proved must be so connected to form part of the res gestae, is the commission of the crime itself, the throwing of the stone, the striking of the blow, the setting fire to the building or whatever the criminal act may be. [p. 124]C.
The question whether the appellant has shown that the improper admission of the hearsy evidence of identification was so prejudicial to the appellant, in a case where the rest of the evidence was weak, that the proceedings as a whole have not resulted in a fair trial is the question whether on a fair consideration of the whole proceedings the Board must hold that there is a probability that the improper admission of hearsay evidence turned the scale against the appellant.
Police constable Cato came on duty about 2 a.m. on 9th October and ten went along a street named Camp Street towards Regent Street. He heard a shout of fire, and then one fire engine passed and after it a second fire engine both going along Regent Street. He stopped at the corner of Regent and Camp Street. His evidence continue, “ There were crowds going east and west along Regent Street to and from the fire. I heard a so men’s voice shouting ‘Your place burning and you going away from the fire; immediately then a blacker which was proceeding west along Regent Street turned north into Camp Street; in the car was a fair man resembling accused. I did not observe the number of the car. I could not see the fire from where I was standing. In cross-examination he said he did not know who or where the woman was. She was not a witness at he trial . It is common ground that the incident took place at a distance of more than a furlong from the site of the fire and that it happened not less than 25 minutes after the fire was started. [p. 12]E.
Held, the heaersy evidence was in a high degree prejudicial. Its effect may be gauzed by considering what Cato’s evidence would have amounted to if it had been excluded. He could then only have said that in consequence of something heard by him his attention was directed to a man driving a black car who resembled the appellant. This evidence would have been worthless for the purpose of identifying the appellant with the man who set fire to a building a furlong away and 26 minutes earlier. It is the hearsay and the hearsay alone which gives dramatic force to Cato’s otherwise valueless evidence of identification, and confers on it a specious importance. It is impossible to avoid the conclusion that the jury might well and probably did regard Cato’s greasy evidence as sufficient to turn the scale. [p. 127]F.
In the present case identification is the purpose for which the hearsay was introduced, and its admission goes for beyond anything that has been authorized by any reported case. [p. 124]G
Circumstantial evidence may sometimes be conclusive, but it must always be narrowly examined if only because evidence of this kind may be fabricated in order to cast suspicion on another. Joseph commanded the steward of his house, “put my cup, the silver cup, in the sack’s mouth of the youngest, and when the cup was found there Benjamin’s brethren too hastily assumed that he must have stolen it. It I also necessary before drawing the interference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the interference. [pp. 124, 125]H.
The practice of the Board is against giving expenses to the successful appellant in a criminal appeal save in very special circumstances. [p. 127]I.

PLD 1952 Privy Council 128
Present: Lord Porter, Lord Reid Asquith and Sir Lionel Leach
PERADENIYA SERVICE BUT COMPANY
LIMITED —Appellant
. Versus
SRI LANKA OMNIBUS COMPANY LIMITED QUEEN —-Respondents
Privy Council Appeal No.20 of 1951, decided on 23rd June, 1952, from the Supreme Court of Ceylon.
Where the Supreme Court Judge considered that the case stated was open objection because it had not been signed by the member of the Tribunal, but by the chairman alone, if did not set forth the facts, and the questions on which the opinion of the Court was asked did not arise on the case stated and the result was that the appellants fund themselves stated out of Court. [p. 132] A,B.
Held that while the case as stated is undoubtedly open to criticism from the point of view of draftsmanship, any defects could have been easily remedied by sending it back to the Tribunal for amendment, which would certainly have been a better course to take than leaving the parties to start all over again is fresh proceedings before the Commissioner. [p. 13]C.
The fact that the case stated was signed only by the chairman of the Tribunal is not a ground for its rejection. The chairman signed on behalf of the Tribunal. [p. 132]D.
It would be carrying technically beyond reasonable limits of hold that a case of this nature and in such circumstances the signature of the chairman was insufficient. [p. 1320E.

PLD 1952 Privy Council 133
Present: Lord Normand, Lord Redcliffe and
Lord Asquith of Bishplone
YESUFU ABIODUN, CHIEF ONIRU —Appellant
. Versus
THE CHIEF SECRETARY TO THE GOVERMENT —-Respondents
Privy Council Appeal No.54 of 1950, decided on 13th May, 1952, from the West African Court of Appeal.
This was an appeal from judgment of the 22nd November, 1949, of the West African Court of Appeal, which varied a judgment of the 28th February, 1949 of the Supreme Court of Nigeria. The appellant, Chief Oniru, had certain of his lands compulsorily acquired by the respondent representing the Government of Nigeria; and as the result of proceedings taken by the latter in the Supreme Court was awarded a certain sum by the trial Judge as compensation under the statutory provisions agreed to the applicable in such a case. On appeal by the present respondent the West African Court of Appeal varied the judgment of the Supreme Court by reducing the award of compensation made by the Court. [p.134]A.
Held that the Court of Appeal for Western Africa was fully justified in drawing from the facts in the main uncontroversial interference differing from those drawn from the same facts by the trial Judge and in reducing the compensation from (Pound) 52,505 as awarded by trial Judge to (Pound) 30,656. [p.138]B
Regarding authorities cited by counsel for the appellant commending caution and reserve on the part of any Appellant Court dealing with the findings of fact of a Judge of first instance who has been and beard the witnesses. Their Lordships observe; “No one question these authorities, but nothing but nothing in the proceedings before the Trial Judge in the present case turned on the demeanour or veracity of the principal witness.” [p.138] C,D.

PLD 1952 Privy Council 139
Present: Lord Normand, Lord Tucker, Lord
Asquith of Bishplone and Lord Coken.
CHIEF KOFI OWUSU and other —Appellant
. Versus
THE CHIEF KWAMK DAPAAH —-Respondents
Privy Council Appeal No.18 of 1950, decided on 3rd July, 1952, from the West African Court of Appeal.
Mere omission by the West African Court of Appeal to give reason for their judgment, without more, in a case under the Ordinance to validate and invest with legal force and effect certain executive decisions given, confirmed, or approved by the Chief Commissioner, with respect to certain disputes and matters relating to boundaries, land, tribe and fishery rights is not a sufficient ground for reversing its decision. [p. 141]A.
Where statement of the witnesses cannot be reconciled with such other, nor those of individual witnesses with other statements of the same witnesses tribunal which has seen and heard the witnesses and besides al this knows the topography and the customs of the country has an incalculable advantage in appraising evidence on ay Appellate Court sitting persons, 1,000 miles away and denuded of these advantages, which are often all the greater, the more confused and self-contradictory is the evidence in cold print. [pp. 147B, 147, 148]C.

PLD 1952 Privy Council 148
Present: Lord Porter, Lord Tucker and Lord Coken.
KWESI ENIMIL and others —Appellant
. Versus
KWESI TUAKYI and another — Respondents
Privy Council Appeal No.49 of 1950, decided on 15th July, 1952, from the West African Court of Appeal.
This looseness of language is due very largely to the confused state of the land law in the Gold Coast as it now stands. There has been introduced into the native customary law, the which the notion of individual ownership was quite foreign, conception and terminology derived from English law. In these circumstances it is not surprising that it is difficult to b sure what is meant in any particular case by the use of the expression owner. [p. 154]C.
Where by their writes the plaintiff claimed only possession and manse profits, there was some doubt whether by the use of the term owner and the reference to tribute in their statements of claim the plaintiffs were intending to set up anything more than the rights, of occupancy which had been recognized by an earlier decision of the Board. [p. 154 ] D.

PLD 1952 Privy Council 155
Present: Lord Porter, Lord Tucker and Lord Coken.
EMMANUELE GEECH —Appellant
. Versus
ANTONIO GRECH and another — Respondents
Privy Council Appeal No.26 of 1951, decided on 19th July, 1952, from the Court of Malta.
The alleged document not having been produced, no secondary evidence of its contents was admissible until proof had been given of its execution and its subsequent loss or destruction.
Nor could the case be remitted for a new trial to enable party to prove the existence of an agreement in writing which was essential to his case and which he had failed to do during a hearing which had with numerous adjournments, covered a period of about 2 years. [p. 161]B.
Where the whole agreement proceeds on the basis of the parties acceptance of the proportions fixed thereby and roes on to prohibit partition which would normally follow acceptance to provide for payment of costs out of the shares fixed, to appoint Administrators and expressly to impose on them the duty to account in the interested parties and to make payments on account to an hear of ten shillings a month. [p.162]C.
Held that by becoming a party to an agreement in these terms, the party impliedly accepted the inheritance, and thereby became entitled to an account in the terms of the contract. [p.162]D.
Parties who had attained their majority at the date of issue of the writ in the action by such write clearly impliedly accepted the inheritance. [p. 162]F.
Section 894 is not definitive, but merely designed to remove doubts with regard to specific cases as to which questions might have arisen whether or not they were within section 891 (3). Where it otherwise there would have been no need for subsection (3) of section 891. [p. 162]E.

PLD 1952 Privy Council 163
Present: Viscount Simon, Lord Normand, Lord Oakley,
Lord Reid and Sir Lionel Leach
THE GAMINI BUS COMPANY LIMITED—Appellant
. Versus
THE COMMISSIONER OF INCOME TAX
COLOMBO — Respondents
Privy Council Appeal No.36 of 1951, decided on 29th July, 1952, from the Supreme Court of Ceylon.
The assessment s of appellant bus company arrived at the Commissioner and confirmed by the Board of Review had been reached, at any rate in part, upon the view that the profits of a bus company in this area bear a fairly constant ration to the company’s expenditure on petrol and oil. Since the amount of the appellant’s expenditure on these supplies was recorded, it was considered this would enable the approximate profit to be arrived at . [p. 166]A.
In a document (marked R-14) exhibited by a Assessor the expenditure of seven other bus companies on petrol and oil was set out and the net profit upon which these companies were assessed was also tabulated so as to show an average ratio of profits to not given and the figures were extracted from files in the Income Tax Department. [p. 166]B.
Held that section 4 was not infringed.
The section lays down a very necessary rule of conduct to be observed by the officials concerned, since it is of the highest importance that the affairs of an individual and identifiable income-tax payer should not be disclosed, in breach of section 4, to anyone outside. Section 4 is not primarily a rule of evidence , thought would be very improper to disregard it when putting forward a document like R-14. But R-14 does not necessarily make a disclosure of” the affairs of any person” within the meaning of the section, for it contains no name except that of the appellant company, and the other entries are extracted anonymously from numbered official files. Their Lordships would strongly deprecate the production or use of such a document if it did in effect disclose information about other identified or identifiable tax-payers, but it is obvious that the document was prepared and produced not for this purpose but to help to show that the ratio above referred between net profits as assessed and the cost of petrol and oil was a fairly constant raio in many cases, and that in using the suggested ratio as a test the Assessor, and the Commissioner after him were not acting capriciously or at random. [p.166, 167]C.
It would be wholly improper to justify the rejection of the appellant’s accounts and the substitution of a higher figure of assessment merely because, in the case of other tax-payers I the same line of business, the conclusion has been reached that their returns required to be rejected. Each tax-payer is entitled to have his assessment fixed, if his own return is not accepted, at a figure which the taxing authorities honestly believe to be proper in his individual case, and no argument that in this class of business the figure of return is habitually understand can be used to prove that this happened in his case also. [p. 168]D.

PLD 1952 Privy Council 132
Present: Viscount Simon, Lord Normand, Lord Oakley,
And Tucker
MARVIN SIGURDSON —Appellant
. Versus
BRITISH COLUMBIA ELECTRIC RAILWAY COMPANY LIMITED others— Respondents
Privy Council Appeal No.8 of 1952, decided on 10th July, 1952, from the High Court of Australia.
The bank was incorporate as limited liability company in Queensland in the year 1872. In 1878 it opened an office in London. A local aboard of directors was appointed with powers delegated by the Bank. In the course of its operations the London branch accepted deposits the amount of which by March 1893 exceeded £2,900,000. Therese deposits carried interest at the rate of £4 to £5 per cent, per annum.
On the 15th May, 1893 the Bank suspended payment. Petitions to wind up the Bank were presented in Queensland, New South Wales and to England. A scheme of arrangement “the old scheme” was prepared with a view to securing for the Bank a moratorium and was brought before the appropriate Court in Queensland. It provided that the debt owing to the Queensland Government was to be paid in full in terms of an agreement between the bank and the Government, and that creditors other than the Government were to accept, in satisfaction and discharge of their claims against the Bank, certain securities described in the scheme as deposit receipts. These were made interchangeable in certain events into negotiable deposit receipts or inscribed deposit stock.
Pursuant to the old scheme the winding up proceeding in each country were stayed. By the end in the year 1896 it become clear that the moratorium provided by the old scheme was insufficient to enable the Bank to find its feet and a new scheme was prepared.
The scheme was approved by the requisite majorities at the meetings held in New South Sales, Queensland and England respectively and was sanctioned by the Supreme Court of New South Wales on the 15th April, 1897, by the Supreme Court of Queensland on the 12th May, 1897 and by the High Court of Justice in England on the 4th June, 1897. By the same order the High Court of Justice stayed all proceedings I the winding upon except for the purpose of carrying the order and scheme into effect.
Among the chief relevant provisions of the new schemes ere ;
Clause 3. Within six months of the new scheme beige sanctioned by the Court, the Bank was to create and allot to the registered holders of the said securities, stock carrying, interest of the rate of 3 ½ per cent per annum to an amount equal to 75 percent, of the principal moneys so secured after deducting from such principal moneys and fractional part of £1 owing to such registered holders respectively.
Clause 4. Each registered holder of the said securities was to surrender his securities under the old scheme at the office where such securities were payable and to accept in discharge thereof of amount of stock equal of 15s. in the £ upon the principal money thereby secured. The interest o the stock was to be paid half-yearly at the offices in Queensland, Sydney and London respectively at which the stock was registered.
Among the chief relevant provisions of the schedule to the new scheme was;
Clause 3. Any registered holder of any stock was entitled to require the manager at the office where the stock was for the time being registered to have the stock transferred at his own expenses to the register kept at any other office and upon such transfer being effected the said stock was to be deemed to be registered at the last mentioned office.
Until the year 142 the Bank drew up its balance sheets on the basis that the English £ and the Australian £ were interchangeable at par, but I the year 1942 pursuant to an order made by the Treasurer of the Commonwealth of Australia I the exercise of powers conferred on him by the National Security (War-time Banking Control) Regulations it converted for purposes of its balance sheets its indebtedness in respect of stock inscribed on the English register into Australian £s at the then current rate of exchange.
In the year 1947 the appellant became the holder either in its own name or in the name of its nominee of all the shares in the Bank, and thereafter the Bank was placed into voluntary liquidation by resolution passed on the 30th October, 1947. As the result of the liquidation of the Bank the principal moneys secured by the stock became payable and the liquidator was faced with the question as t the amounts in Australian £s for which he should admit proofs in such liquidation in respect f such principal moneys.
Held, that the obligations of the Bank in respect of the stock sounded only in Australian currency irrespective of the place of registration. [p. 177]A.
The question to be determined is not strictly speaking the constructing of a contract though the consent of three quarters of he creditors concerned was needed before the scheme could be sanctioned. It is a question of construction of the words creating the stock. No doubt the document setting out the terms of the scheme must be looked at as a whole and to the light of relevant surrounding circumstances, but the real question to be decided is as to the nature and incidence of the stock. [p. 177]B.
The language of clauses 3 and 4 which deals with the creation and allotment of the stock seems better adapted to describe stock of a uniform nature than to describe stock with the peculiar rights recognized by the order of the High Court. Moreover the very use of word stock itself connotes uniformity, [pp. 177, 178]C.
The failure of the stock which is more significant is the fact that the holder of it was given the right to transfer from one register to another just as he might please. The original depositors had not such right nor were they given any such right by the old scheme. It was the circumstance that their deposits had been made at a definite place and were repayable there and only there which is the strong reason for saying that under the old scheme they were entitled to be repaid the face value of the deposit receipts or other security which they held in the currency of the place of registration. But I as much as the interminable inscribed deposit stock which was substituted for the old securities cold be moved about from register to register as the holder pleased, this is a new feature which goes far to establish that the stock did not give the various holders hereof a different right of repayment according to where it might for the time being be registered. [p. 178]D.
The liability of the Bank of the Bank in respect of the stock is for a fixed amount in Australian pounds and that the Bank’s liability — the stock— is and always has been limited to payment to each registered holder, o the occurrence of an event making the principal moneys payable, Queensland pounds equal to the normal value of the stock held by him and in the meantime to paying in Queensland pounds interest on he said principal moneys at the rate of 3 ½ per cent per annum. [p. 179]E.

PLD 1952 Privy Council 132
Present: Viscount Simon, Lord Normand, Lord Oakley,
Lord Reid and Sir Lionel Leach
MARVIN SIGURDSON —Appellant
Versus
BRITISH COLUMBIA ELECTRIC RAILWAY COMPANY LIMITED — Respondents
Privy Council Appeal No.3 of 1952, decided on 21st July, 1952, from the High Court of Appeal for British Columbia.
The appellant brought an action in the Supreme Court of British Columbia claiming damages for personal injuries suffered by him and for damage to his motor car, by reason of the alleged negligence of the driver of a street car owned and operated by the respondent. [p. 183]A.
Held, The issues involved in this and other similar cases turn upon questions of fact and then a jury is the tribunal of fact to which those issues are committed their findings—subject to questions of misdirection or misperception of evidence— cannot be set aside unless they are of such a nature that having regard to the evidence no reasonable men could have arrived threat. It is not for an appellate court however much it may differ from the conclusions reached by the jury to substitute its own findings for those of the jury. [p. 186]B.
There is, perhaps, no class of case which more nearly affects the average citizen in his daily life and which for this reason should, so far as possible, be kept free from legal subtleties and philosophical discussions on the theory of causation which, however fascinating, only tend to perplex and confuse the average journeyman. [p. 186]C.
In the words of Viscount Birkenhead “the question of contributory negligence must be dealt with somewhat broadly and upon common sense principles as a jury would probably deal with it. And while no doubt, where a clear line cannot be drawn, the subsequent negligence is the only one to look to, there are cases in which the two acts come so closely together, and the second act of negligence is so much mixed up with the state of things brought about by the first act that the party secondly negligent, while not free from blame under the By well Castle rule, might, o the other hand, invoke the prior negligence as being part of the cause of the collision so as to make it a care of contributing”. [p. 187]D.
The ‘Volute’ was an Admiralty case, but now that Common Law Courts have to apply the same principles to cases of collisions on land it seems that this language will be found particularly suited to he exposition to a jury of the principles which they have to apply in these cases, and is much to be preferred to attempts to classify acts in relation t one another with reference to time or with regard to the knowledge of one party at a particular moment of the negligence of the other party and his appreciation of the resulting danger and by such tests to create categories I some of which one party is solely liable and others n which both parties are liable. Time and knowledge may often be decisive factors but it is for the jury or other tribunal of fact to decide whether in any particular case the existence of one of these factors results or does not result in the ascertainment of that clear line to which Viscount Birkenhead referred. [p. 187]E.

PLD 1951 Dacca 1
Before Amin Ahmed, J.
Present: Viscount Simon, Lord Normand, Lord Oakley,
Civil Original, decided on 24th July, 1950.
A draft is nothing but a bill of exchange and originality its holder is to be treated in the same way as the holder of a bill of exchange. Section 5 and 85A of the Negotiable Instruments Act made it quite clear that prima ficie the relationship between the holder of the draft and any prior party is that of a creditor and debtor as prescribed by section 36 of the Negotiable Instruments Act. So it has been rightly pointed out that unless exceptional circumstances can be proved the holder of a draft cannot claim to enjoy any priority over any other creditor.
In order to come under this exception there must be strong evidence to support it had that mere affidavit will not be sufficient to prove such an exception.
It seems that there is an impression created by the ruling of cases In re: Pioneer Bank. Ltd., reported in 53 C W N I D R 162 that whenever a stranger who has got no account in a bank purchases draft even without any specific instructions as to any specified person to whom the money is to be transmitted or as to any specific purpose for which the money of the draft is to be utilize, he is entitled to claim the money as a trust money and as a preferential creditor. In my opinion, this a entirely erroneous idea, for, the test is not whether the person has or has not got an account with the bank which one deals for the purpose of obtaining a draft in consideration of money paid or money lying to one’s credit in his current account, the real test is whether he has got an account or not with the bank which issues the draft whether there are clear and specific instructions to the effect that the money that is to be transmitted is to be transmitted to specified persons or for specified purpose as mentioned above. For example, even if a person has an account with the bank X, it is open to him to prove from correspondence or otherwise that he instructed the bank, with whom he has account to transmit the money of draft to its branch or another bank on the express condition that the said money of the said draft must be made over to him on or before a particular date at a particular place of stay at his destination. It is also possible to think of a case where the bank has instructed the issue of draft with the crossed endorsement “Account payee only” followed by an advice and thereby make the draft not negotiable. [pp. 7,8]

PLD 1952 Dacca 12
Befor Guha, J.
GOALUNDO ICE ASSOCIATION LTD—Plantiff-Appellate
Versus
COMMISSIONERS OF THE RAJABARI MUNICIPALITY— Defendant Respondents
Appeal from Appellate Decrees Nos 1019 and 1020 of 1944, decided on 22nd January, 1951.
Public right of way may be created by statute or it may arise out of dedication to the public use, which is usually founded on a presumption derived from user on the part of the public and there must be an intention to dedicates. [pp. 17, 18].
The work “public” as used in section 125(1) (b) of the Bengal Municipal Act, means and includes every member of the public in general.
“Public Way” means every way which is common to the subject of the State. “A well though situate in private ground, which is used gratuitously, and as of right, by the inhabitants in the vicinity for the purpose of drawing water is a public well”.
Unless the user f the hydrant is “as of right” it cannot be said that water is “available” from the “nearest stand-pipe or other supply of water”.
The word “available” in section 125(1) (b) means “obtainable or attainable or accessible” as of right. [p. 18].
The intention of the Legislature in enacting section 125 (1)(b) appears to be that if the occupier of a holding can get his supply of water without any restriction on his right to do so from within a radius of one-fourth of a mile of his holding, he is liable to water-rate to the Municipality, otherwise not. The occupier must be able to have his supply of water “as of right” and that right must not depend o the grace or favour of any other person and if this right is available to him as of right and without any restrictions of or limitations to the exercise of that right, the occupier is liable to pay water-rate. There cannot be a liability of the occupier of a holding to pay water-rate depends on the whims, caprice, mercy or grace of another. The right of the municipality to impose water-rate on the occupier of a holding makes it obligatory on the part of the municipality to make the supply of water available to him not depending o the caprice or grace of a third party. The intention of the Legislature is transparently clear from provision in section 125 of the Bengal Municipal Act. A rate-payer of a municipality pays a tax because he enjoys a benefit supplied to him by the municipality. The payment is for enjoyment of the benefit. Therefore when the municipality imposes a tax on a rate-payer, it must secure or make available to him the benefit for such a taxation and this right to enjoy the benefit must be an unrestricted and unlimited one, enjoyable as of right. Therefore considering the matter I the light of the aforesaid observations, facts and circumstances. I hold that none of the 5 hydrants, which lie within a radius of one-fourth of a mile from the plaintiff’s holing, is available to the plaintiff, a member of the public, within the meaning of “available to the public” in section 125(1) (b) of the Bengal Municipal Act (XV of 1952) and as such the defendant municipality has no jurisdiction to impose water-rate upon plaintiff’s holding is, therefore, illegal unauthorized and ultra vires and it not binding on the plaintiff, and he is not liable to pay it. [p. 19].

PLD 1952 Dacca 22
Befor Muhammad Shahabuddin, C. J. and Akbar. J.
NEW BENGAL SHIPPING COMPANY—-Plaintiff-Appellate
Versus
ERIC LANCASTER STUMP—- Defendant Respondents
Appeal from original order No.s 16 and 18 of 1950, decided on 18th April, 1950, against the order of subordinate Judge, 3rd Court of Zilla Chittagong, dated 16th Marc, 1950.
A clause to the charter party is that any dispute arising under the charter is to be referred to arbitration in London, or such other place s may be agreed to [p. 24].
The plaint in this suit was filed on 3rd February, 1950, and on the next day an application was presented for the issue of a temporary injunction against the first respondent and Captain Mitchell not to remove the vessel out of Chittagong Port or cause any damage to it any way, pending the trial of the cause any damage to it in any way, pending the trial out the suit. The court granted an ad interim injunction and ordered notice to the application for injunction; and on 14th February 1950, the petition of objections was filed. In the meantime summons issued in the suit had been served on 28th February 1950, Captain Mitchell appeared and applied for time to file written statement. Time was granted and on 14th March, 1950, Captain Mitchell filed two applications, one for further time for filing written statement and another for staying the suit under section 34 of the Arbitration Act, [p. 25].
In appears from the petition of objection filed by Captain Mitchell that the main idea in filing what petition was to get the order of ad interim injunction vacated, and not to state that the respondent would insist on the arbitration clause in the contract being was not confined to the question of jurisdiction. The petition on the other hand contains ground on the merits of the case. Subsequently an application asking for time to file written statement, was filed. This application was without reservation. [p. 26].
The application presented on 28th February, 1950, amounts to a step in the proceedings. As for the intention of the party who ultimately files an application under section 34 of the Act it must inferred from the particular act in question, Captain Mitchell in his first application raised the question of jurisdiction; but, as state already, he did not stop with that objection. He stated grounds on the merits of the case. Even in his later application he asked for adjournment without any reservation, and on a subsequent occasion when he actually filed an application for stay, he still asked for time to file written statement. [p. 27].
Sections 31 and 33 were introduced to prevent parties to arbitration agreement from nullifying its effect; but the fact remains that the Legislature while introducing these sections did not think it fit to vary section 19 of the old Act; but incorporate it wholly into the new Act of 1940 as section 34. [p. 28].
The main grounds urged for the appellant is that the first respondent, the owner of the vessel has no property in Pakistan and if the vessel is removed from Chittagong, the appellant would have o means of realizing the fruits of the decree which he hopes to obtain in the suit; but the appellant when eh entered into an agreement with the respondent knew full well that the first respondent had not property in Pakistan. [p.29].
That being so the appellant cannot now be allowed to say that because respondent has ot property in Pakistan he should be restrained by an injunction. [p.29].

PLD 1952 Dacca 30
Befor Afzal. J.
ISHAQUE KHALIFA and another—-Plaintiff-Appellate
Versus
CROWN —- Opposite Party
Criminal Revision No. 45 of 1951, decided on 4th June, 1951.
There was no evidence to show that the petitioners intended to commit the offence of house trespass as the house at that time was abandoned and the property I dispute was claimed under a bona fide right as belonging to or in occupation of the petitioners. [p. 32].
In order to establish a case under section 448 of the Pakistan Penal Code, it must be proved that the petitioners entered into possession of the godown in question with intent to commit an offence r to intimidate or in suit or annoy the complainant. In this resent case, the evidence established only this that the petitioners obtained possession contrary to law. It was, therefore, in view of the defence taken by the petitioners of their bona fide right of possession of the godown that the complainant should have established evidence the intention of the petitioners which amounted to intimation, insult or annoyance to the complainant in consequence of this trespass. [p. 32, 33].
There was no one in occupation of the godown at the time when the petitioners entered into possession. It cannot, therefore, he said that the petitioners intended to annoy a person in possession of the godown. It may be argued that the charge states that the petitioners intended to disposes the complainant form his lawful possession and this was certainly for causing annoyance to the complainant. If this proposition of law ere correct then the answer to this would be found in the observation of His Lordship Sen. J. in the case of Satish Chandra Modakv. The King, (I.L.R. 44 All. 754), “Then every act of civil trespass would amount to a criminal offence. That is certainly not the law.” [p.33].

PLD 1952 Dacca 34
Before Akbar and Guha JJ.
DURGYODHON MONDAL —- -Appellate
Versus
KSHIRODE MONDAL and others —- Respondents
Appeal from Appellate Decree No. 1119 of 1943, decided on 14th June 1951.
Apart from the terms of the proviso to subsection (1) of section 18, it would be extremely difficult to hold that the Board had no jurisdiction to deal with the matter and determines the amount of the debt. If the Board be of the opinion that the said proviso to subsection (1) of section 18 has no application it cannot be said that the Bard had done anything more than it decided a point of law wrongly. If a Debt Statement Board has jurisdiction to give a wrong decision on a question of fact, it must also have similar jurisdiction to give a wrong decision on a question of law. [pp. 38, 39].
When the Board has determined the amount of the principal of a debt due from a debtor and of the arrears of interest due thereon, the decision of the Board in that respect shall not be questioned in any Civil Court or in any manner other than that provided in the Bengal Agricultural Debtors Act. This is the provision in subsection (4) of the Act. There has been a decision of the amount of the debt by the Board in this case and that decision, through it may be erroneous, is within the competence of the Board and is within jurisdiction and such a decision, in view of subsection 4 of section 18, cannot be questioned in the Civil Court or in any manner other than that provided in the Bengal Agriculture Debtors Act, namely by appeal under section 40, or by review under section 44, or by revision in the final stage under section 40 A of the Act. [p. 40].
It cannot be said that the compromise decree amounted a determination of the amount of the debts of the defendants due to the plaintiff and it was certainly not a determination of the amount of all debts. The possession was claimed by the plaintiff is usufructuary mortgagee and so it was not within the scope of the suit to determine the amount of all debts of the defendants, which was the subject-matter of decision before the Debt Settlement Board. Therefore, in my view the fixation of the amount of debts due to the plaintiff from the defendants could not in any way be regarded “as conclusive evidence as to the amount of debt as between the parties to the decree,” [p. 42].

PLD 1952 Dacca 43
Before Ispahani, J.
KALA MIA alias ABDUL KUDDUS MIA— -Appellate Petitioner
Versus
Sreemati TAJUNNESSA and others —- Respondents
Civil Suit No. 410 of 1948, decide on 27th June, 1951.
The rule does not specify when an application is disallowed, it should be disallowed only after contest. The disallowing of an application would include also an application which is disallowed due to the non-appearance of the applicant.
An order dismissing an application under Order XXI, Rule 90 of the Code of Civil Procedure for default is appealable; such an order falls under Order XXI, Rule 92, and as such an appeal lies from it under Order XLIII, Rule 1. Clause (f) of the Code.
An applicable order cannot be interfered with under section 151 of the Civil Procedure Code.

PLD 1952 Dacca 44
Before Akbar and Guha, JJ.Ispahani, J.
MD. TOZAMMAL HOSSAIN TALUKDAR and others — -Appellate
Versus
PUNI AGAWALLINI and others —- Respondents
Appeal from Appellate Order No. 203 of 1947 decided on 14th June, 1951.
If a Court assumes jurisdiction over a matter over which it has no jurisdiction and passes a decree either in the suit or on appeal and that decree is open to appeal under the ordinary law, no objection can be taken to an appeal from that decree on the ground that the Court below had no jurisdiction to tray the matter, because an appeal may lie to a higher Court on the sole question of jurisdiction. To hold otherwise would mean that the judgment of a Court which has no jurisdiction would remain in force and has the same effect as that of a Court of competent jurisdiction. Conceding that no appeal lay to the lower appellate Court in this case a second appeal to this Court is maintainable on the ground that the order passed by the lower appellate Court is without jurisdiction.
In view of the provisions of section 103 of the Code of Civil Procedure the High Court is entitled to determine an issue of fact which is necessary for the disposal of the case but which has not been determined by the lower appellate Court.

PLD 1952 Dacca 47
Before Chowdhury, J.
SHEIK ESHAD ULLAH HAJI and others — -Appellants
Versus
MUHAMMAD HUSSAIN —- Respondents
Appeal from Appellate Decree Nos. 547 and 548 of 1946 decided on 5th June 1951.
At the time of accounting, the Court is to consider the question of interest but in the bond itself there is no provision as to the rate of interest and it cannot be said that in a mortgage by conditional sale as described in clause (c) of section 58 of the Transfer of Property Act, there cannot be any provision for interest as defined in section 2, subsection2 of Assam Money Lenders Act of 1934. Interest has been defined in that Act as “Interest” means rate of interest and includes the return to be made over and above what was actually lent whether the same is charged or sought to be recovered specifically by way of interest or otherwise.
The benefit derived by the mortgage in the shape of usufruct of the land he was put into possession on account of the mortgage by conditional sale is none the less return over and above what was actually lent. [p. 50].
The definition contains words “or otherwise” which is wide enough to include any benefit arising out of the mortgage transaction to be a “return” contemplated by the definition of interest. Therefore the mortgage debt comes under section 2 subjects 3 of the Assam Money Lenders Act 1934 and is a loan as defined in that subsection and secured loan as explained in section 8 of the Assam Money Lenders Act as amended by the amending Act of 1943. If that be so, then whether it is an anomalous mortgage or mortgage by conditional sale as defined in section 58 of the Transfer of Property Act, it will come within the purview of sections 8 and 9 of the Assam Money Lenders Act (Amendment Act of 1943) (Act VI of 1943) and the mortgagor is entitled under both the sections. [p. 50].

PLD 1952 Dacca 51
Before Ellis and Ibrahim,J J.
ADAM ALI KHALIFA and others — -Appellants
Versus
CROWN —- Opposite-Party
Criminal Revision No. 22 of 1950, decided 9th June, 1950.
The fact that he accused was at the relevant time minor girl’s guardian for marriage is no defence to a charge under Section 366 Pakistan P.C.
Though a paternal cousin according to Muhammadan Law has right to contract the marriage, he has no right to kidnap a minor girl from the custody of her guardian of person or to compel her to ratify and accept a marriage contracted by him. [p. 56].
If the girl kidnapped with the intention of compelling her to go through a form of marriage whether valid or not, the case would come within the mischief of the section . [p.66].
The contention that as a minor has no authority to contract her marriage, the guardians having he authority to contract it, the minor’s “will” does not matter, and what mattes in a case under section 366 is the “will” of the guardian is without substance. [p.55].

The doctrine of suspension of rent can only be applied in this country as a principle of equity, justice and good conscience, and as such its application will be made to cases irrespective of the fact as to whether it is a case of lump rental or rent of so much per bigha. [p. 61]A.
Where beyond proving that he was dispossessed of about two-thirds of he and of the tenancy and of the better quality of land, the tenant defendant did not show or attempt to show that by reason of this dispossession the beneficial enjoyment of the portion of land left in his possession was interfered with, and he failed to avail himself of the ordinary remedy available to him under the law.
Held, it was not a fit case in which the doctrine of suspension of rent should be applied.
From the mere fact of a compact block of land, two-thirds having been taken away leaving only inferior land for the cultivation of the tenant, there may not be an inference that the practical effect of the deprivation was to interfere with the land left. [pp. 61, 62]C.

PLD 1952 Dacca 62
Before Ellis and Ibrahim, JJ
DR. DEVENDRA NATH CHAKRAVARTY—Petitioner
Versus
CROWN—Opposite Party
Criminal Revision No. 172 of 1950, decided 24th July, 1950.
Held, that the charge as framed against the petitioner was not one which legally could have been framed against him under section 222(2) of the Criminal P. C. and that the accused had been prejudiced by the charge which actually was framed against him. [p. 67]
The accused was entitled to know the details of the charge against him and considering he volume of documentary evidence in the case, the Magistrate was not right in disposing of the petitioners’ objection to the charge by merely stating that all the available material had already been brought on record. [p. 67]B.

PLD 1952 Dacca 68
Before Amin Ahmed,JJ
RADHA KISHORE BEPARI and others —Defendants==Appellants
Versus
CHANDRA KUMAR MAJUMDAR and another—–Plaintiff –Respondents
Appeal from Appellate Order No. 34 of 1948, decided on 4th August, 1950.
According to the definition of debt as given in clause 8 of section 2 of the Agricultural Debtors Act, the puisne mortgagee has a liability which is debt. [p. 71]B.
A Civil Court may determine whether there is any liability at all but if he Debt Settlement Board should hold that a liability is a debt it is not for the Civil Court to sit in judgment on the decision of the Debt Settlement Board whether a particular liability is a debt or not. [p. 71]C.
The mortgagor and puisne mortgagee both had separate cases before he Debt Settlement Board which issued two separate notices to the Civil Court standing the same execution proceeding. The case of the mortgagor was dismissed by the Board and on intimation of the dismissal the Civil Court vacated the stay order and directed the decree-holder further to take steps I the execution proceeding;
Held, that the Civil Court was not competent to proceed with the execution of the decree merely on receiving intimation from the Board that one of the cases had been dismissed.
The rest is whether these two cases that were filed in the Debt Settlement Board by different parties are one and the same or whether one case can be hear independently of the other and whether relief can be given to one party without giving any relief to the other party in the other case. If the mortgagor did not want any relief even then the puisne mortgagees could seek relief from the Debt Settlement Board and, therefore, there was o reason why both the case hold be treated as one case simply because they relied to the same property or to the same decree. [p.71]A.

PLD 1952 Dacca 72
Before Akbar. J
AZIZAR RAHMAN—Plaintiff-Appellant
Versus
SUDHANGSHU KUMAR MITRA and another——Respondents
Appeal from Appellate Decree No. 452 of 1944, decided on 30th August, 1950.
An ex parte decree can be set aside by a new action when the Court passing it had been misled by fraud. To sustain an action for setting aside a decree the fraud alleged and proved must be ‘actual’ positive fraud, a meditated and intentional contrivance to keep the parties and the Court in ignorance of the real facts of the case and obtaining that decree by that contrivance’. [p. 74]A
There is a vast difference between mis-describing a party intended to be sued and suing a wrong party. In the suit a decree was sough against a wrong persons in order to bind the Wakf estate. In the circumstances, the ex parte decree obtained by the plaintiff could not be binding against the Wakf estate. [p. 75]B.
A notice under section 70 (2) of the Act is mandatory when a property is notified for sale as Wakf property. But as no such notice was given to the Wakf Commissioner the Mutwalli was entitled to challenge the rent sale and the sale of the Wakf property was null and void and was not binding on the Wakf estate. [p. 75]C.

PLD 1952 Dacca 76
Before Ispahani. J
Hamendra lal choudhury —Plaintiff-Appellant
Versus
SALEH AHMED and another——Respondents
Appeal from Appellate Decree No. 632 of 1945, decided on 24th August, 1950
If the title of the purchaser o an estate at a revenue sale takes effect from the date when the default is made the defaulting proprietor cannot deal with the estate in any way between the date of default and the date of sale [p. 78].
A lease granted between these dates would be invalid and would not be binding on the purchaser at revenue sale.

PLD 1952 Dacca 79
Before Ibrahim. J
CHAND BANOO —Petitioner
Versus
ABDUL SOBHAN and another——Opposite Party
Civil Revision Case No. 23 of 1948, decided on 5th December, 1950.
The case of the petitioner, a minor, was that notices under section 26C, Bengal Tenancy Act, were not served on her and that consequently her case for pre-emption under section 26F was within time though filed more than four years after sale;
Held, that section 6 was of no help to the petitioner. Section 6 applies to suits and applications for execution of decrees. Section 8 definitely says that “nothing in section 6 or in section 7 applies to suite to “enforce rights of preemption.” From section 29 it would be obvious that section 6 has no application to a question of limitation where limitation is prescribed by a special or local law. [p. 80].

PLD 1952 Dacca 81
Before Ispahani and Ibrahim. J.J
SAILENDRA PRASAD BOSE —Appellant
Versus
CROWN ——Respondent
Criminal Appeal No. 98 of 1950, decided on 26th September, 1950.
Section 222 (2) of the Cr. P.C. applies only to cased where the accused is charged with criminal breach of trust or dishonest misappropriation of money, when it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committee, and the dates between which the offence is alleged to have been committee, without which the particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234 provided the time included between the first and last of such dates shall not exceed one year, and that it dos not apply to a case where the accused is charged with does not apply to a case where the accused is charged with falsification of accounts or for omitting to enter into account books the amounts alleged to have been defalcated by him. [p. 85].
An offence under section 409 of the Penal Code is not an offence of the same kind as an offence under section 477-A of the Penal Code. “Offences are the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code or of any special or local law. “Section 234 does not, therefore, apply to a case where several defalcations with corresponding falsifications of accounts are sought to be tried together under section 409 and section 477-A. Pakistan Penal Code. [p. 88]B.
The essential ground for applicability this section is that the offences which are sought ot be tried have been committed in course of the same transaction. A charge of defalcation can no doubt be tried under this section with a charge of falsification of the corresponding accounts to cover up the defalcation, because, in such a case the defalcation and the falsification are parts of the same transaction. But an act of misappropriation and an act of falsification in respect of a different act of misappropriation cannot be tried in the same trial. [p.88]C.
No direction was given by the Judge in so far as circumstantial evidence was concerned that the circumstances of the case were incapable of explanation on any other hypothesis than that of the guilt of the appellant; [p. 82]D
Held that the Judge when dealing with this aspect of the case, should have given a specific direction to the Jury and left the matter thereafter for their consideration [p.82].
The conviction and sentence therefore could not be upheld on account of misdirection to the jury.

PLD 1952 Dacca 89
Faiyaz Ali.J
RUSMAT ALI —Petitioner
Versus
RAMMAT ALI—Opposite Party
Criminal Revision No. 181 of 1449, decided on 15th August, 1950.
Section 17, Civil Procedure Code applies only to those cases in which there is one and the same cause of action in respect of immovable property situate within the jurisdiction of different Courts. In such a case, and only in such a case can a suit be instituted in any Court within the local limits of whose jurisdiction any portion of the property of the property in suit might be situated. The section cannot be interpreted as applying to those cases in which there are different causes of action and also immovable property situate within the jurisdiction of different Courts. [pp. 90, 91] A
Where plaintiff brought a suit under section 9, Specific Relief Act in respect of two properties lying in the territorial jurisdiction of different Courts alleging dispossession on different dates:
Held that the Court had no jurisdiction to hear and determine the case with regard to property not lying within its territorial jurisdiction.
It is true that in case of an order under section 9 of the Specific Relief Act the aggrieved party has a remedy by way of a regular title suit, but there is no uniform rule that no revision lies or can be entertained, if and when there is in existence any other remedy for an aggrieved party. Every case will depend on its own facts. [p. 91]B.

PLD 1952 Dacca 92
Before Ispahani and Chawdhury,J.J
GIRISH CHANDRA SIL and others —Petitioner
Versus
SUBODH CKUMAR AICH and others —Opposite –Party
Criminal Revision No. 373 of 1949, decided on 7th December, 1950.
The decree-holders purchased the properties in question on the 11th January 1937, in execution of a mortgage decree against the judgment-debtors and took delivery of possession through Court on the 11th December, 1938 but the debtors continued in possession of a part of the property, viz., the homestead. Thereafter, on the 19th November 1942., the petitioners field an application before the Debt Settlement Board under section 37-A of the Bengal Agricultural Debtors Act for restoration of the properties covered by that decree. [p. 93]A.
Held that clause (c) of subsection (1) of section 37-A Bengal Agricultural Debtors Act (VII of 1936) does not contemplate that possession of the decree-holder should be actual possession. The decree-holders auction-purchasers, by implication of law will be construed to be in possession of that properties auction-purchased by them including the homestead. The judgment-debtors in possession of only the homestead are the position of trespassers and in the eye of the law their possession is no possession so far as the decree-holders auction-purchasers are concerned . [p. 94]B.

PLD 1952 Dacca 95
Before Muhammad Shahabuddin, C. J. and ispahani, J
REZAUR RAHMAN KHAN and others —Appellants
Versus
MAKHANNESSA Alias MALEKENNESSA as Mutwali of the Wakf Estate of late Munshi MUHAMMAD ABDUR RAUF and others —Opposite –Party
Appeal from Original Decree No. 35 of 1941, decided on 8th August, 1950.
A case under section 5(1) of the Bengal Alluvial Lands Act is in fact a reference and not a suit, and it is only for the purpose of procedure that the Act provides that it shall be deemed to be as suite. The only point for determination in this suit or reference is the question of title. [p. 102]B.
Section 28 of the Limitation 5(1) of the Bengal Alluvial Lands Act is not a suit within meaning of section 28 of Limitation Act.
So long as he lands remain submerged, no title can be acquired against the true owner, and constructive possession of lands, if any, remains in the true owner. [p. 100]C.
For the statute of limitation to apply there must be both absence of possession by the original owner as well as actual possession by another. [p. 101]D.

PLD 1952 Dacca 102
Before Muhammad Shahabuddin, C. J. and Amir-ud-Din Ahmed, J
Haji ji MAHARAM ALI— Plaintiff Respondent in S. M. A —Appellant
Verses
MUNSAR ALI Defendant Appellant in S.M. A Respondents.
Appeal under section 15 of the Letters Patent No. 11 of 1945 decided on 22nd June, 1950.
An application was made to the Debt Settlement Board alleging that a certain transaction with the other party was a mortgage by conditional sale and that the debt had been wiped out by usufruct of the property. The Board decided in favour of the applicant and the decision was confirmed in revision by the District Judge. The other party brought a suit for a declaration that the decision of the Board was ultra vires and transaction was an out and out sale. On the defender’s objection that in view of the Board’s decision the suit did not lie;
Held that as the defendant who applied to the Board and that what he regarded as a debt had been w2iped out and that as the opposite party also contended that three never was a debt, there was no liability in existence and therefore there was nothing for the Board to decide.
As for section 18 of the act, the Board has not doubt power to decide about the existence of debt; but for that action to apply there must be a doubt or dispute about the existence of debt; whereas in the present case there was neither a doubt nor a dispute. According to both sides there was no debt o the date of the application. [p. 106]A.
In effect what was asked for by the applicant before the Board was a declaration that the transaction was a mortgage by conditional sale and not a sale out and out. [p. 106]B.
The Board had no power to give a declaration o title; for, the existence of a debt, is sine qua non for the assumption of jurisdiction by the Board. [p. 106]C.
As long as there is disputed with regard to the existence of a debt, the Board has jurisdiction. But, in this case there was no such controversy and the plaintiff’s case was purely for a declaration of tile and for possession. [p. 107]D.

PLD 1952 Dacca 108
Before Ibrahim, J
CHUNU BHUIYA and others —Appellants
Verses
ISMAIL BHUIYA and others— Respondents.
Appeal from Appellate Decree No 180 of 1944, decided on 26th January, 1950.
The award passed by a Debt Settlement Board cannot be reopened before the Civil Court n the ground that the Board had no jurisdiction to consider whether the transaction created a liability or not. The liability under section 20 means the liability or not. The liability under section 20 means the liability alleged by the applicant and it is within the exclusive jurisdiction of the Board to decide whether the liability alleged is real or fictitious or exists or does not exist, four, without determining that question the Board cannot decide whether it has jurisdiction to entertain the application. If in deciding the question whether the liability alleged by the debtor exists or not, it becomes necessary to consider whether the transition upon which the liability is asserted creates a debt or not the Board alone is competent to decide that. [p. 112].

PLD 1952 Dacca 112
Before Ibrahim, J
Sm. MAJEDA KHATUN CHOWDHURNI —Appellant
Verses
RABINDRA CHANDRA DE and others—Respondents
Appeal No 456o of 1944, decided on 18th April, 1951.
Though a right to re-purchase reserved in a deed of sale does not, according to section 54, Transfer of Property Act, create an interest in or charge on the immovable property concerned it is a benefit annexed to the ownership of land, and unless the contract is induced by consideration which are personal to the vendor it is assignable. Whether it is induced by personal qualities or consideration is a question of fact. If it appears that the option was given, as a matter of grace or favour it would restricted to the vendor personality and would not be assignable but if it is not induced by any such consideration but as in fact a part of the bargain the beneficial interest created by the contract is assignable. [p. 114].

PLD 1952 Dacca 114
Before Ibrahim, J
ABDUR RASHID and others —Petitioners
Verses
JABIAT HOSSAIN and others—Opposite- Parties
Civil Revision No 101 of 1948, decided on 11th December, 1950.
Where the Munsif Court had no jurisdiction to entertain an application under the Bengal Money lenders Act, 1940, because the decree in respect of which the land was sold was a rent decree, the fact that such an application was made and dismissed for default did not bar an application under section 37-A, Bengal Agricultural Debtors Act.
It is not possible to accept the view that if the Civil Court, whether it has jurisdiction or not, in fact entertains an application under he Bengal Money Lenders Act in respect of any debt, no application will lie before the Debt Settlement Board in respect of it. An application which the Court has no jurisdiction to entertain cannot be said to be entertained in the eye of law. The bar of section 37-A (3) applies to those cases only where the Civil Court has jurisdiction to entertain and entertains application under the Bengal Money Lenders Act and has no application so cases I which the Civil Court has no jurisdiction to entertain application under the Bengal Money Lenders Act )p. 116].

PLD 1952 Dacca 116
Before Akbar, J
BIJOY KUMAR CHOWDHURY and others —Petitioners
Verses
JOGENDRALAL CHAKRAVATRY and others—Opposite- Parties
Civil Revision No 901 of 1949, decided on 20th December, 1950.
Where a fresh application by the decree-holder for execution would be time-barred and, as such, the judgment-debtors had acquired a valuable right under the law, the Court should not override lawful bar of limitation, by restoring the decree-holder’s application for execution which had previously been dismissed for default, without giving notices to the judgment- debtors. [p. 117],

PLD 1952 Dacca 119
Before Akbar and Guha,J. J
KUMAR SATYA BIJOY GHOSAL BAHADUR —Appellant
Verses
DEB PROSAD CHAKRABARTY —Respondent
Appeal from Appellate Order No. 10 of 1948 decided on 15th June, 1951.
The legislature intended that so long as the tenure or holding is a existence, the only remedy available to the landlord is limited to the security afforded by the tenancy. The proviso only enacts that if the tenancy expires or cases to be in existence, the landlord can pursue his remedy against other movable and immovable properties o the judgment-debtors. [p. 123]B.
The underlying principle of the proviso the clause (a) of subsection1, of section 168-A ad the scheme of section 168-A are to protect the other properties of a tenant from an execution for arrears of rent which the landlord could very well levy against the in respect of which the default occurred. [p. 123]C.
Simply because the tenancy has passed hands by sale, the proviso will not apply. [p. 123]D.
The proviso contemplates the extinction, termination or cessation of a tenancy by some method which the law regards as valid and legal, and the fact that the Legislature excludes the word “surrender” definitely shows that the efflux of time is not the only mode of extinction of the tenancy, which the Legislature intends. [pp. 123,124]E.
What the Legislature contemplates is that the tenancy must terminate or cases to exist. In that view it is not enough that it has merely changed hands and passed n to some person to her than the judgment-debtors. [p. 124]F
Where, therefore, there were two decree for arrears of rent in respect of the same holding for two different periods and in execution of one of them the tenancy was sold and purchased by a their party, it was held that he other decree could be executed against the tenancy and not against the other property or the tenant.

PLD 1952 Dacca 125
Before Ispahani and Chowdhury,J. J
JAMINI RANJAN CHAKRAVARTY —Appellant
Verses
KAMINI KUMAR SIL and others—Respondent
Appeal from Appellate Decree No. 481 of 1949 decided on 18th September, 1947.
The property in suit originally belonged to defendants Nos. 2 and 4 who borrowing some money mortgaged the same on the 27th May, 1937 to pro forma defendant No. 5, the Commilla Banking Corporation, Ltd. After the mortgage the mortgagors borrowed Rs. 7,950 from pro forma defendant No. 4, Krishna Chandra Dutta on four promissory notes. They were unable to pay the dues under the promissory notes and so executed two mortgage bonds in favour of pro forma defendant No. 4 in respect of the disputed property o the 31st May, 1939, for the amounts borrowed from them. In 1942 the prior mortgages filed mortgage suit No. 4 of 1942 against defendants No. 2 and 3 without imp leading the second mortgagee as party defendant and obtained a decree. In execution of the said decree, the mortgaged property was sold and purchased by defendant No. 1 in February, 1944, and he took delivery of possession on the 13th December, 1944. On the 23rd May, 1945, the plaintiff purchased the interest of defendant No. 4 by two kabalas.
After that the plaintiff asked defendants Nos. 2 and 3 to pay up the mortgage dues but they denied liability stating that the mortgage property had been purchased by defendant No. 1 in execution of the mortgage decree obtained by pro forma defendant No. 5, After that the present suit was filed [pp. 126 127]A.
Held, where a mortgagor’s equity of redemption vests by purchase in a prior mortgage or in a third party, and that a puisne mortgage and the puisne mortgagee wishes also to redeem the prior mortgage, the claim of the former not as a prior mortgagee or as a per son having purchased the interest of the prior mortgage the owner of the equity of redemption and as having an inherent interest right under the law must be given preference. [p. 132]B.

PLD 1952 Dacca 133
Before Ispahani and Chowdhury ,J. J
MONORAMA GOPINI and others—Plaintiff –Appellants
Verses
HEM CHANDRA GOPE and others—Respondent
Appeal from Appellate Decree No. 2123 of 1946 decided on 24th August, 1945.
There was in the case no evidence nor any finding of the lower Court that by reason of the submergence the land had become derelict and the predecessors of the appellants could be deemed t be in constructive possession during the period of submergence and thus save limitation. On the other hand, there were material showing that the lands were capable of yielding two crops per year and the respondents were exercising acts of possession without any interruption. Further in view of the finding that appellants vendor’s title was extinguished and that of the respondent was perfected by adverse possession before 1928, constructive possession, during the period of submergence, would be the constructive possession of the respondent and not of appellant’s vendor. [p. 137]A.
The submergence contemplated by law must be such as to render the land derelict, that is, incapable of use for any purpose and not a seasonal submergence during which the possession of the then possessor is not interrupted or discontinued. [p. 137]B
The word “vis major” imports something abnormal and with reference to the context means that the property by the set of God had been rendered useless, for the time being, that act of God had been rendered useless for the time being, that is to say, it was rendered incapable of any enjoyment. [p. 136]C.

PLD 1952 Dacca 137
Before Akbar and Guha ,J. J
(Maulvi) SALAMAT ALI KHAN —Defendant –Appellants
Verses
A.R. MUHAMMAD SIDDIQUE —Plaintiff — Respondent
Appeal decided on 20th June 1951 from original decree no. 83 of 1950.
Rule 6 of Order XII of Civil P. C. provides that if a Judge is satisfied that there was a clear and unambiguous admission by the defendant either on the pleading of otherwise he may pass a decree for the said amount. The word “may” in the aforesaid rule indicates that he has a discretion in the matter. No doubt this discretion should be exercised judiciously band the appellate Court can interfere only when such discretion is erroneously exercised. [p.140]

PLD 1952 Dacca 141
Before Amin Ahmed and Afzal ,J. J
TUFAIL AHMED KHAN and others —Petitioners
Verses
CROWN —-Opposite Party
Criminal Revision Cases Nos, 5, 6, 7, 12, 13, 14, 15, 19 and 30 of 1951, decided on 18th April 1951.
It is true that one of the object’s namely, falsifications of account is a non-cognizable offence and of course if a charge was framed in respect only of “falsification of account”, and on no other offence, provisions of section 196-A would be attracted. But in this case the accused is charged of having committed various offences in course of committing breach of trust. It will be noticed fro the charge that the object was to commit criminal breach of trust and in order to commit such an offence, the modus operandi of the accused was such as to being him within the mischief of the other provisions of Pakistan Penal Code. So, it cannot be said that the object of conspiracy to commit breach of trust cannot be separated of conspiracy of commit breach of trust cannot be separated from others for the latter were only means to an end. [p. 146]A.
The charge which the accused was called upon to meet was one of criminal breach of trust notwithstanding whatever the means may have been employed to effect that object. If criminal a breach of trust is carried out by other means indicated in the charge, it does not follow that the provisions of section 196-A would apply. There is difference between the object of conspiracy and the means adopted to achieve that object. [p. 148]B.
Besides the straight charge under section 406 of the Pakistan Penal Code, there was also a separate charge of comprehensive nature relating to conspiracy. The subsequent series of acts of misappropriation forming the subject of separate charges under section 406 of the Pakistan Penal Code were so connected together as to form the same transaction within the meaning of section 235 of the Code of Criminal Procedure. [p. 150]C.
Held, that the main object of conspiracy is stated n the first charge. All subsequent acts are only done in pursuance of that conspiracy which is the main link which connects all these acts and makes them part of one transaction. [p. 150]D.
There was no misjoinder of charges offending against the provisions of the Code of Criminal Procedure nor could it he said that the plurality of charges cause bewilderment and prejudice to the petitioners. [p. 149].
A certain quantity of cloth was allotted to the Syndicate to be distributed to the permit-holders according to the directions of Civil Suppliers Department. Their use could not be made in any other way except for the benefit of those consumers who were given permits for the purchase of the same and on whose behalf the firm was entrusted with the goods. The petitioners, therefore, received the cloths under certain restricted conditions and it is fallacious to argue that they possessed it as absolute owners. The petitioners were trustees of the goods and could not be regarded as owners. The stock entrusted to accused —petitioners having been found short, they were held guilty of having committed them. [p. 151]F.

PLD 1952 Dacca 151
Before Ispahani and Chowdhury ,J. J
ABDUL RASHID —Petitioner
Verses
ABDUL GANI and others—Opposite parties.
Criminal Revision Cases No, 80 of 1950 decided on 3rd May 1951.
The Subordinate Judge, one an erroneous interpretation of the Wakfnama, wrongly refused the petitioner to be substituted as Plaintiff in the suit and in refusing the petitioners the right to prosecute the suit filed by his father, had failed to exercise a jurisdiction vested in him by law. [p. 154].

PLD 1952 Dacca 155
Before Ghha. J
FAZAL AHMED and others —Plaintiffs–Appellants
Verses
ABDUL BARI and anothers—Respondents.
Appeal from Appellate Decree No. 1079 of 1945 decided on 4th May 1951
If the defendant is not so subject, the judgment is not a judgment of competent jurisdiction.
A decision given formally ex-parte against defendants when they were non-resident foreigners and the decision was not on merits, that decision comes within the exceptions (a) and (b) to section 13 of the Code of Civil Procedure. None of the two defendants submitted to the jurisdiction of the foreign Court, so the foreign judgment was not binding on them. [p. 167]B.
Where only the decree is filed and not the foreign judgment, the suit is maintainable. It was held that the plaintiff was not entitled to say relief.

PLD 1952 Dacca 168
Before Ibrahim. J
ABDUL HALIM BISWAS and others —Decree-holders
Verses
RAJJAB ALI KHAN —Opposite Party.
Civil Rule No. 576 of 1950, decided on 23rd May 1951.
Clause 2 of section 66 lays down that in a suit for ejectment for an arrear of rent a decree passed in favour of the plaintiff shall specify the amount of the arrear and of the interest (if any) due thereon, and the decree shall not be executed if that amount with the costs of the suit are paid into Court within thirty days from the date of the decree, etc. All should be paid within 30 days in order to prevent the executions of the degree. It nowhere says that the tender can be made only by the defendant I the suit and not by any other persons whose interests are jeopardized by the decree.

PLD 1952 Dacca 170
Before Muhammad Shahabuddin, C. J, and Ellis, J
Sm. ISLAM KHATUN—Appellate
Verses
AHMADUR RAHMAN KARANI and others—Respondents.
Appeal under section 15 of the Letter Patent No. 2 of 1947, decided on 21st March, 1951.
Non-compliance with the provisions of section 26-E would not by itself invalidate the sale in cases where the landlord and knowledge of the transfer.
Analogy of the transfer of permanent tenure does not apply.

PLD 1952 Dacca 176
Before Muhammad Shahabuddin, C. J, and Ellis, J
MAHBUBUR RAHMAN KHAN —Defendant-Petitioner
Verses
ASUTOSH CHAKRAVARTY —Plaintiff Opposite Party
Federal Court Appeal Tender No. 601 of 1950, decided on 21st May, 1951.
The plaintiff’s suit for recovery of Khas possession of the suit lands by ejecting the defendants by the removal of structures and other obstacles and for manse profits was decreed by High Court on Second Appeal. [p. 176].
The defendant applied for leave to appeal to the Federal Court n strength of value of structures being Rs. 10,000 or upwards.
Held, that the suit was a proper one in which leave to appeal should be granted.

PLD 1952 Dacca 179
Before Guha, J
LJORPDEMMESSA Alias KHIRIJAN BIBI and another—Defendant-Petitioner
Verses
SEKANDAR BISWAS and others—Respondents.
Appeal from Appellate Decree No. 1408 of 1945, decided on 24th May, 1951.
A false charge o adultery against wife made in a complaint under section 498, P. P. C., but retracted bona fide in suit for restriction of conjugal rights by husband did not bar suit of plaintiff.

PLD 1952 Dacca 188
Before Ispahani, J
DALILUDDIN KARIKAR and others—Petitioners
Verses
EZARUDDIN KARIKAR and others—Opposite Parties.
Civil Rule No. 388 of 1948, decided on 10th July, 1951.
A second application in terms of subsection (5) of section 8 of the Act is maintainable only when any debt incurred before the date of the first application under subsection (1) or subsection (2) is omitted in the first application through inadvertence or any other reason acceptable to the Board. [p. 191].
Ribhuti Bhusan Roy. v Bholanath Sinha Roy 49 C W N 151 ref.

PLD 1952 Dacca 192
Before Ispahan and Ibrahim,J.J
AMIR HOSSAIN TALUQDAR and others—Accused
Verses
CROWN —Opposite Party.
Criminal Revision No. 132 of 1951, decided on 26th July, 1951.
Since the amendment of the Criminal Procedure Code in 1923 by which the word “distinct” was deleted from section 35 of the Criminal Procedure Code, separate sentences for rioting and for hurt or grievous hurt, even where the common object of the unlawful assembly is to commit assault, are legal.
The common object of the entire assembly was theft, and if assault was a separate object of four of the members of the assembly only and was committed by them in prosecution of that object, it could not render the unlawful assembly riotous.

PLD 1952 Dacca 194
Before Guha.J
JADAV CHANDRA SAHA BANK —Appellate
Verses
SHYAMA DAS SAHA and another —Respondent.
Appeal from Appellate Decree No. 682 of 1950, decided on 15th May, 1951.
Once the party aggrieved by an erroneous order of remand submits to the order, he is precluded from challenging that remand order in an appeal at a subsequent state. [p. 198]A.
The Rent Controller retains his jurisdiction in dealing with an application which is not in compliance with executive instructions with regard to filling, verification and stamp. What has been done is at best an irregularity and a defect in procedure, which cannot affect jurisdiction of the Rent Controller to entertain the application and the order passage on such an application after hearing cannot said to be without jurisdiction and a nullity. [p. 20]B.
Omission to specifically record the reason for granting permission did not render the permission nugatory and at worst it was an irregularity which did not affect the jurisdiction of the Rent Controller. [p. 204]C.

PLD 1952 Dacca 192
Before Ispahan and Ibrahim,J.J
AMIR HOSSAIN TALUQDAR and others—Accused
Verses
CROWN —Opposite Party.
Criminal Revision No. 132 of 1951, decided on 26th July, 1951.

PLD 1952 Dacca 214
Before Ahmad and Afzal J.J
SRIJUKTA MAHARAJA SIR BIR BIKRAM KISHORE MANIKYA BAHADUR on his death His Highness Maharaja Kirit Biikram Kishore Deb Barma Manikya Bahadur, Minor—Appellate
Verses
GIRISH CHANDRA DEB and others —Respondents.
Appeal from Original Decree No. 238 of 1943, decided on 24th May, 1951.
Whenever an objection in regard to misjoinder of parties or causes of action is raised in the written statement, it is desirable that the particular issue should be decided as early as possible. [p. 228]A.
In few of sections 99 and 100 of the Assam Regulation I of 1886 it does not appear t be the intention of the Regulation to vest the Revenue Court with exclusive jurisdiction to adjudicate on questions of tile. The distribution of the land as between such proprietors or landholders amongst whom there is no dispute of title the partition may be final under clause (f) of section 154 (f) of Assam regulation I of 1886. But it cannot be said that persons not parties to the partition made the subject of that partition, in a Civil court. [p. 233, 234]B.
“Symbolical possession is sufficient to interrupt adverse possession when the adverse possessor is a party t the execution proceedings in which the symbolical possession is given; as regards persons not so parties, only actual dispossession can interrupt their adverse possessing”. [p. 237]C.
Entries in he Batawara record finally adopted relating to revenue partition are admissible under section 35 of the Evidence Act, though they may not be conclusive evidence. [p. 238]D.

PLD 1952 Dacca 253
Before Ispahani and Ibrahim, J.J
KASEM ALI MIRA—Appellate
Verses
THE CROWN —Respondent.
Appeal No. 3 of 1951, decided on 2nd August, 1951.
The trial began with the aid of three Assessors including Moulvi Abdul Sakek Noor Muhammad who absented himself after the midday recess on the first day and did not turn up again. The learned Assistant Sessions Judge proceeded with the trial without making any attempt to enforce his attendance.
In the event of an Assessor absenting himself in the midst of the trial, the trial can proceed with the remaining Assessor of Assessors only n the event that it is not practicable to enforce his attendance. The phrase “it is not practicable to enforce his attendance” clearly means that the Judge must make an attempt to procure his attendance. [p. 225]B.
In such circumstances the conviction and sentence cannot be sustained and the ‘appellant must be tried afresh according to law. [p. 255]C.

PLD 1952 Dacca 256
Before Chowdhury.J
ALMAS ULLAH and others —Appellantes
Verses
SRISH CHANDRA DAM and others —Respondents.
Appeal from Appellate Decree No. 641 of 1945, decided on 6th August, 1951.
The defendants who are holding over an tenants cannot treat themselves as trespassers, because the landlords tried to let out the land to a third party. The tenancy created by holding over will continue to be terminated by a valid notice. [p.259]A.
A lessee or a sub-lease who continued in possession of the demised premises even after determination of the lease and the landlord did not exercise his right to eject him he became a tenant on sufferance who had no lawful little to the land but held it merely through the laches of the landlord. [p. 260]B
The defendants who were inducted on the fisheries as tenants by the plaintiffs, were stopped from disputing the title of the lessors, the plaintiffs, in the fisheries. Even if there was no holding over after the termination of the written lease, the defendants possessed the lands as tenants on sufferance and they were not entitled to dispute the title of the plaintiffs until and unless they surrendered their possession to the plaintiffs. [p. 260] C.

PLD 1952 Dacca 261
Before Ispahani and Ibrahim, J.J
JABBAR ALI and others —Appellants
Verses
THE CROWN —Opposite Party.
Criminal Revision No. 448 of 1951, decided on 17th August, 1951.
The essence of section 441, Pakistan Penal Code is the intent with which the entry is made and it is that intent that distinguishes a criminal trespass from a civil trespass. Unless the dominant intent is to commit and offence or to intimidate, or annoy, the trespass does not amount a criminal trespass.
In the absence of any clear finding was regards the intent of the petitioners their convictions and sentences were set aside.

PLD 1952 Dacca 263
Before Chowdhury.J
EROM CHAND BIB and others —Plaintiffs — Appellants
Verses
ANNADA CHARAN RUDRAPAL and others —Defendants– Respondents.
Appeal from Appellate Decree No. 699 of 1946, decided on 27th July, 1951.
The ordinary rule is that in a mortgage suit, the title of the third party paramount to that of mortgagor and mortgagee which is in no way connected with the mortgagee would not be gone into. But is not an inflexible or invariable rule. If the question is raised and if it dos not lead to on convenience or confusion in trying the issue as to paramount tile in the same suit, the Court can it if it thinks necessary I the interest of al parties that such a trial should take place. It is not correct that the question cannot e gone into at all and if gone into by the Court below even without objection by either part the decision of the Courts below should be set aside on that ground [p. 265].A.
Though the defendant as mortgagee is stopped from denying the title of a mortgagor certainly he is not stopped from questioning the title of mortgagor as a paramount title holder in the suit. [p. 266]B.

PLD 1952 Dacca 266
Amin Ahmed and Ibrahim,J.J
KISMAT ALI —Accused –Petitioner
Verses
ABDUL KADER —COMPLAINANT-OPPOOSITE-PARTY.
Criminal Revision No. 421 of 1951, decided on 24th July, 1951.
Though it is permissible under section 408 of the Pakistan P. C. to inflict sentence of fine simultaneously with the substantive sentence of imprisonment, ordinarily the double sentence should not be inflicted unless necessary I the interest of justice.

PLD 1952 Dacca 267
Before Chowdhury, .J
ABDUL GAFUR SIKDAR and others—Petitioners
Verses
SONAULLA MOLLA and another—Opposite Parties
Civil Revision No. 452, decided on 12th July, 1951.
When a suit is excluded from the Small Causes Court by the Schedule of he Act it is not a suit of the nature cognizable by the Court of Small Causes and section 102 of the Code of Civil Procedure will not be a bar for filing a second appeal and the revision application is not maintainable. [p. 269]A.
Where the plaintiff grew the disputed paddy on the eastern half of a certain plot which he defendants (co-shares of plaintiffs but out of possession) forcibly cut and took away the plaintiffs is entitled to sue for the price of paddy as damages and compensation.

PLD 1952 Dacca 270
Before Ibrahim .J
KRISHNA KUMAR DAS —Plaintiff —Appellant
Verses
HARA LAL DE and another—Defendant—Respondents
Appeal from Appellate Decree No. 436 of 1945, decided on 9th May, 1952.
Where a judgment debtor brought a suit for contribution towards costs awarded against all defendants some of whom were only formal defendants not interested in result of suit in which costs were awarded.
Held, where a party is merely a formal defendant and not personally interested in the result of the suit he cannot be made liable to contribute.

PLD 1952 Dacca 272
Before Shahabuddin, C. J, and Ellis, J
NURUDDIN AKHAN alias NUR MUHAMMAD —Defendant —Respondent
Verses
KUTI BARU BIBI —Plaintiff —Respondents
Appeal from Appellate Decree No. 272 of 1948, decided on 19th April, 1951.
Reading section 2 as it is, there is no justification for interpreting the words “married under Muslim law” as referring only to marriages subsequent to the coming into force of the Act. [p. 274]A.
If a Statute is in its nature a declaratory Act, the argument that it must not be construed so as to take away previous rights is not applicable. [p. 274]B.
The question of interpretation arises only when there is ambiguity with regard to the words of the section. Where the section is very clear on the point, it is not necessary to consider the preamble. In any case, the preamble cannot restrict or extend the enacting portion. [p. 274]C.

PLD 1952 Dacca 274
Before Ibrahim, J
FAKIR MAMUD PRAMANIK —Defendant —Respondent
Verses
MAJIBAR RAHMAN CHOWDHURY and others —Respondents
Appeal from Appellate Decree No. 467 of 1949, decided on 5th April, 1951.
A transaction which is void is a nullity; it does not exist and never existed in the eye of law. If a minor’s property is sols by an unauthorized person, such as the mother is under the Muslim Law, the sale is void. If in such a case, the transferee is let into possession of the property his possession is no better than that of a trespasser. [p. 277]A.
If a trespasser spends money or pays it to an unauthorized person to enable him to secure possession of the minor’s property, it would be extraordinary result if it be held that he is entitled to resist the minor’s claim for recovery of the property unless the minor pays him that money. To permit him to do that would be to allow him to take his stand on a transfer, which never had and has no existence in law. [p. 277]B.
Section 41 of the Specific Relief Act, which gives the Court discretion to allow compensation on adjudging the cancellation of an instrument, cannot come in far consideration at all, for the instrument having no existence in law does not require cancellation. [p. 277]C.
Section 64 and 65 of the Contract Act were held to be inapplicable as these start from the basis of there being a contract and have no application to a case in which there never was and never could have been, any contract. [p. 276]D.

PLD 1952 Dacca 278
Before Ibrahim, J
Munshi ABDUL KARIM —Petitioner
Verses
ABDUL SOBHAN and others —Opposite Party
Civil Revision No. 197 of 1949, decided on 19th December, 1950.
By the law under which the District Judge exercises his jurisdiction under section 40A of the Bengal Agricultural Debtors Act he is required to see that justice is done. If Debt Settlement Board takes cognizance of a case which is beyond its jurisdiction the District Judge has not only the power but it is also his duty to rectify the error.

PLD 1952 Dacca 279
Before Guha, J
Munshi EMAMUDDIN AHMED, on his death his heirs and legal representative MUHAMMAD ABDUR RAHMAN and others—Plaintiff —Appellants.
Verses
PROVINCE OF EAST BENGAL and others —Respondents.
Appeal from Appellate Decree No. 1572 of 1944, decided on 18th December, 1950.
Where the money has been expressly paid for a specified object and it was received and acknowledged on that account, transaction, without the assent of the other, to vary the effect of the transaction by altering he appropriation in which booth originally concerned.

PLD 1952 Dacca 283
Before Ibrahim. J
GIRINDRA CHANDRA DATTA CHOUDHURY —Plaintiff —Appellant.
Verses
KUMUD BEHARI ROY —Defendant–Respondents.
Appeal from Appellate Decree No. 1164 of 1944, decided on 5th December, 1950.
A person who has taken possession under an unregistered case which under section 107 of the Transfer of Property Act required to be registered, can protect his possession on the plea of part performance under section 53A of the Act provided he fulfilled the conditions laid down therein. [p. 284]A
Section 49 of the Registration Act provides amongst other things that no document required by section 17 of the Registration Act or by any provision of the Transfer of Property Act to be registered shall affect any immovable property comprised therein unless it has been registered. This prohibition clearly means that an unregistered instrument cannot have the effect of creating any interest in the land which can be created by a registered instrument only. [p. 285]B.
It is true that the proviso to section 49 of the Registration Act allows an unregistered dead which is required to be registered to be used as evidence but the use is limited. It can be used as evidence of a contract in a suit for specific performance (that is not the case here) or as evidence of part performance of a contract for the purpose of section 53A of the Transfer of Property Act. [p. 285]C.

PLD 1952 Dacca 286
Before Ibrahim. J
SEFERADDI MUNSHI —Petitioner.
Verses
FARMAN ALI MRIDHA —and others—Opposite-Parties.
Civil Revision No. 425 of 1949, decided on 5th December, 1950.
The vendor is not a necessary party in a case of pro-emption under section 26F of the Bengal Tenancy Act.
It was not contemplated that an order passed under section 26F should be regarded as a decree.
An order on an application to set aside an ex parte order, does not become appealable under clause (d) of O. XLIII, r. 1.

PLD 1952 Dacca 288
Before Akbar and Guha J.J
Mst. LATIFA KHATUN and others—Defendants–Petitioner.
Verses
Mst. ATAR BANOO and others—Plaintiffs –Respondents.
Appeal from Appellate Decree No. 1880 of 1946, decided on 17th August, 1951.
In interpreting the Statutes the Courts are not given any latitude to alter the word in the Statute; but the Courts must give the ordinary dictionary meaning to the word used in the Statutes. Bearing this in mind the 4 sub-clauses in subsection (3) must be intended by the Legislature to be taken conjunctively and not disjunctively. The Legislature did not intend that compliance with any of the clauses in that subsection would suffice to represent the tenure or holding. If he Legislature had so intended, the word intervening between clauses (iii) and (iv) should have been “or” instead of “and”. The 4 sub-clauses should not be taken in the context disjunctively but should be taken conjunctively. The 4 sub-clauses should e read together and if in any case all the provisions mentioned therein are fulfilled, then and then only it can be said that there was proper representation in the rent suit in order to got a decree under Chapter 4 of the Bengal Tenancy Act. [p. 291].

PLD 1952 Dacca 292
Before Ibrahim.J
MUKIBULLA—Plaintiff –Petitioner.
Verses
SUKUMAR BHATTACHARYYA—Defendant –Respondents.
Appeal from Appellate Decree No. 624 of 1945, decided on 13th August, 1951.
In English common law there is an important distinction between liable, which means written defamation, and slander, which means oral defamation. Libel is actionable per se, but subject to certain exemptions, slander is not. [p. 295]A
English common law was never introduced beyond the ordinary original civil jurisdiction of the High Courts of Calcutta, Madras and Bombay. Even within this limit was applied as for as the circumstances of the place and the natives permitted its application. [pp.295, 296]B
The rule English law which prohibits, except in certain cases, an action for damages for oral defamation unless special damage is alleged, being founded on no reasonable basis, should not be adopted by the Court of British India. [p. 296]C.
Such cases have to be decided not on the principles of the English common law of slander but according to the rule and laid down in section 37(2) of Bengal, Agra and Assam Civil Courts Act i.e. according to justice, equity and good conscience. [p. 296]D.
At an election of a Sarpanch the Sub. Deputy Collector told the plaintiff that there was a police report against him and that he could not be elected either as an Assistant Sarpanch or as a Sarpanch. This was said in presence of the villagers ho had assembled for the election. The defendant refused to show him the police report saying that it was confidential; [p. 295]E
Held that the defendant cannot be called upon in justice, equity and good conscience to pay damage to the plaintiff. A person cannot recover damage for the publication of a statement that police has submitted ad charge-sheet or reported against him, in fact police has done so. In this case there was a police report against he plaintiff and what the defendant said was that there was such a report against him and that for that reason he would set allow him to contest. [pp. 296, 297]F.
What the defendant said, therefore, he said from sense of duty in order to protect public interest. The persons in whose hearing he said it, were also interested in the matter. [p. 297]G.

PLD 1952 Dacca 297(F.B).
Before Muhammad Shahabuddin, C.J. Ellis and Amir ud Din Ahmed, J.J
Verses
AMIRAZZAMA— and others –Respondents.
Full Bench Reference Case No. 2 of 1945, decided on 23rd April, 1951.
Where a decree of one Court is attached by another under Order XXI, Rule 53 (1) (b) of the Code of Civil Procedure, the attachment does not operate as a stay of execution of the decree by injunction or by order of the Court within the meaning of section 15 of the Limitation Act so as to entitle the party seeking execution of the decree to a deduction, for purposes of limitation, of the period during which the decree remained under attachment. [p. 299].

PLD 1952 Dacca 301
Before Afzal .J
AMJAD ALI alias AMJUDULLA TALUKDAR and others –Appellants.
Verses
ASADULLAH and another — Respondents.
Appeal from Appellate Order No. 11 of 1947, decided on 27th June, 1951.
The Debt Conciliation Board has no jurisdiction to entertain a second application in respect of the same debt after dismissal of the first application. [p. 303]A
Here there is no compliance with provisions of section 19, the subsequent application could not be treated as one for review.
The expression “shall be suspended” occurring in section 21 (1) of the Act, cannot but mean that it shall be suspended by the order of the Civil Court itself, in other words, the Civil Court must have some knowledge of the application before the Board before it can suspend its proceedings. [p. 205]B.
The Civil Court ought to have been apprised of the steps taken by the debtors before the Board and if no such notice was given and confirmed the sale, the step taken in execution by the Civil Court in such circumstances cannot be questioned. [p. 306]C.
The word “entertain” as used in section 16 of he Act means “to receive and to take into consideration”. [p. 308]D
Where proceeding before the Civil Court was already going on and thereafter the judgment-debtors moved the Board of which no notice was given to the Civil Court. [p. 308]E
Held, the jurisdiction of the Civil Court cannot be ousted by virtue of the order of the Board. [p. 308]F.

PLD 1952 Dacca 308
Before Chowdhury. J
MUHAMMAD ISHAQUE –Appellant.
Verses
BASIR AHMED and another — Respondents.
Appeal from Appellate Order No. 236 of 1946, decided on 14th June, 1951.
Held, that the decree-holder can proceed with the execution proceeding for realization of the entire decrial amount against any one or all of the co-debtors except the debtor whose case was pending before the Debt Settlement Board and the sale that took place in execution of that decree, is valid and binding against all except the debtor whose case was pending before the Debt Settlement Board. [p. 314].

PLD 1952 Dacca 337
Before Akbar and Guha,J. J
ABDUL HAKIM SIKDAR and others–Appellants.
Verses
TOMEJADDY RARI, dead and on his death some of his heir and legal representatives JOYNAL RARI, minor and others — Respondents.
Appeal from Appellate Decree No. 271 of 1944, decided on 6th August, 1951.
Possession cannot become adverse to the owner so long as he is not entitled to claim immediate possession. [p. 342]A
Where the defendant was not entitled to claim possession before the partition was confirmed the plaintiffs possession could not be adverse against him. [p. 342]B
The well-known maxim “contra non valentem agree man currit praesoription”, means that prescription does not run against a person during the time when he is not entitled to immediate possession. [p. 343]C
The rule that an agricultural tenant who enters upon the land, whether it be firm or alluvial and holds under a de facto proprietor bona fide, is entitled to retain possession as a raiyat although the de facto proprietor is subsequently proved to be not the real owner, must be cautiously applied. [p. 343]D.
To make he above principle applicable, there must be bona fide belief of the lessors an the lessee that ht former had sole interest in the land to create the interest and the latter also believed that he obtained a valid right available against the solo real owner. [p. 344]E.
A co-sharer cannot create by letting lands to cultivators as his tenants any occupancy right to the lands as against his other co-sharer. [p.346]F.
No occupancy right acquired by a tenant against one co-sharer can be biding against the other co-sharers. [p. 346]G.

PLD 1952 Dacca 347
Before Chowdhury. J
KASEM MOLLA–— Plaintiff—Appellants.
Verses
FAJEL SHEK and others — Respondents.
Appeal from Appellate Decree No. 469 of 1946, decided on 16th July, 1951.
Plaintiff whose property has been alienated by his mother during his minority need out set aside the transfer which is void but he can institute a suit for possession within twelve years from the date of sale or within three years from the date of his attainment of majority whichever may be the later date. If the suit is not so instituted his title I the property would be extinguished under section 28 of the Act and the subsequent suit would be barred by limitation. [p. 340].

PLD 1952 Dacca 349
Before Afza, J.
SYLHET CO-OPERATIVE LAND MORTGAGE BANK LTD. —Appellants.
Verses
SRISH CHANDRA PURKAYASTHA and others — Respondents.
Appeal from Appellate Order No. 201 of 1947, decided on 27th June, 1951.
It was due to sheer negligence n the part of the decree-holders that the claim up to the date of sale was not put down in the sale proclamation. This negligence amounted to waiver. [p. 353]A.
The negligence or oversight of the decree-holders in not including the interest in the sale-proclamation operates as an estopped against them from re-agitating the same question over again. [p. 353]B.

PLD 1952 Dacca 354
Before Ispahani and Ibrahim, J.J.
ABDUS SALAM CHOUDHURY and others. —Petitioners.
Verses
THE CROWN and others — Opposite Party.
Criminal Revisions Nos. 290, 201 and 315 of 1951, decided on 29th August, 1951.
Section 222 (2) cannot be applied to amalgamate all the different offences of criminal breach of trust committed by different accused into a single charge of defalcation for the aggregate sum. [p. 256]A.
Assuming that two more persons can be charged under section 222(2) for misappropriation of an aggregate sum of money, it is necessary that the amount, should be composed of items jointly defalcate by them. If one person commits breach of trust in respect of a certain amount and another commits criminal breach of trust in respect of another amount during a period of one year, they cannot both be charged for the aggregate amount under section 222(2) of the Code. Each must be charged separately for the amount defalcated by him of course they can be tried in the same trial if permissible under section 239 but the charges must be separate. [p. 256]B.
The object of framing a charge n a criminal trial being to give notice to the accused as to what he prosecution case is, in order to enable him to defend himself, it seems essential that is the offence is alleged to have been committed, should be specified in the charge. [p. 355]C.
Entrustment is an essential ingredient of the offences of criminal breach of trust and a man cannot be guilty this offence unless he is entrusted with the amount. If section 34 is to be applied to punish several persons for the offence of criminal breach of trust, it is necessary to establish that all of them were entrusted with the amount. In the absence of entrustment a person may be guilty of abetment but cannot be charged and punished as a principal offender by the application of section 34, for this section cannot create entrustment where there is none. [p. 356]D.

PLD 1952 Dacca 357
Before Akbar and Guha J.J.
JOY KUMAR DUTTA and others. —Defendants—Appellants.
Verses
SITANATH DUTTA — Plaintiff—Respondent.
Appeal from Original Decrees No. 170 and 177 of 1945, decided on 27th August, 1951.
Adoption of a son by widow to her deceased husband is deemed to relate back to the husband’s death. [p. 361]A.
Such adoption relates back to the death of adoptive father; that is to say, that an adopted son is entitled to be put in possession of his adoptive father’s share of the family estate subject of course to lawful alienations in the meantime. [p. 362]B.
Under the will of a brother of the grandfather of the adoptive father, the latter got a certain share of the property which vested, in accordance with the will, in brothers of the adoptive father on his death;
Held, that the adopted son by his subsequent adoption could not succeed and divest the brothers f the deceased adoptive father of the shares which had already vested in them. In other words, the adopted son can inherit the property that belonged to his adoptive son was in existence at the time of his adoptive father’s death cannot be extended to entitle him to inherit from the collaterals. [p. 362]C
The rule of the Dayabhaga system is that if two ore more sons succeed to ancestral property and live jointly and acquire properties in the name of any member of the family, the presumption will be that all the properties acquired during the state of jointness or joint family properties. This presumption is not the displaced by the person alleging the property to be his separate self acquired property. [p. 369]D.
Under Rule 4 Order 41 of the Code of Civil Procedure, if an appeal proceeds upon a decree common to all the dependants any of the defendants is entitled to appeal from the whole decree and the appellate Curt can reverse or vary that decree. [p. 372]E.

PLD 1952 Dacca 385
Before Afzal .J.
AHMED ALI—Appellant.
Verses
SABHA KHATUN BIBI and others— Respondents.
Appeal from Appellate Decree No. 293 of 1948, decided on 14th November, 1951.
If the wife acting upon a condition exercised the power of divorce delegated by the husband to her upon the contingencies which occurred, there is no reason why the divorce should not be given affect to provided the condition appears to be reasonable. [p. 387]B.
The validity of express stipulations entered into at the time of marriage is of some consequence but the circumstances which justify her refusal to live with her husband have also be to taken into consideration in order not give effected the stipulation and to see if it can be viewed as a reasonable one and not opposed to the principles of Mohammedan Law. But in all such cases, the condition ought to be fulfilled, literally and fully, before the power can be exercised. In other words, it has to be tested whether can be exercised in the circumstances of the case is not which is reasonable and not opposed of the policy of the Mohammedan Law. [p. 388]C.
It is no doubt true that the husband is bound to maintain his wife so long as she is faithful to him an obeys his reasonable orders. But he is not bound to maintain her if she refuses herself to him or is otherwise disobedient unless the refusal or disobedience is justified. [p. 388]C.
Where the Kabinnamah gave power to wife to divorce herself if the husband did not give he wife maintenance for two years and the circumstances of the case showed that it was the wife who was to blame for the husband’s failure to maintain, the wife had no right to effect a divorce in exercise of such powers.

PLD 1952 Dacca 389
Before Chowdhury .J.
HAZI GOPAL PRAMANIK and others—Plaintiffs.
Verses
ASIMUDDIN MONDAL and others— Defendants.
Appeal from Appellate Decree No. 728 of 1944, decided on 23rd November, 1951.
In certain circumstances amendment of the plaint can be allowed at any stage f the suit without any prejudice to the defence of the defendant and subject to the law of limitation and subject to the payment of costs to the other side. [p. 392]A.
Where a plaint prayed for khas possession, amendment of plaint was allowed at stage of second appeal so as to change the prayer to joint possession.
In case of benami transaction, one cannot rely much on the recital of the kabala but should look to the surrounding circumstances, namely the subsequent dealings of the parties with the property, custody of the document and motive of the benami. [p. 393]B.

PLD 1952 Dacca 398
Before Ibrahim .J.
ASWINI KUMAR KODALIA and another —Judgment—debtor–Appellants.
Verses
HARI GOPAL CHAKRAVARTY — Respondents.
Appeal from Appellate Order No. 9 of 1947, decided on 27th November, 1951.
Registration contemplated by section 47 of the Bengal Agricultural Debtors Act has nothing to do with the question of effectiveness. Want of registration does not make the award incapable of being enforced. Subsection (3) of section 25 of the Act lays down in express terms; “From the date of the signing of the award under subsection (2) it shall, in suppression of all previous decisions of a Civil Court in respect of the debts mentioned in it, be binding on the debtor and his creditors and the successors-in-interest of such debtor and creditors.

PLD 1952 Dacca 399
Before Akbar and Guha, J.J.
ABDUL WAHED and others—Defendant–Appellants.
Verses
ABDUL KHALIQUE and others— Respondents.
Appeal from Appellate Decree No. 754 of 1948, decided on 23rd August, 1951.
The word “requisite” in subsection (2) and (3) of section 12 of the Limitation Act means something more than “required”. In determining what is the “time requisite” in section 12, the conduct of the appellant must be considered and no period can be regarded as requisite which need not have elapsed if the appellant had taken responsible and proper steps to obtain a copy of the decree or order. [p. 403]A
“Requisite” means “properly required”. [p. 404]B
No period can be regarded as “requisite which is not subsequent to the presentation of application for copy [p. 404]C.
The application for copy must be made before the period of appeal expires. That is, exclusion under section 12 can be claimed only if the application for copy is made at a time when the right to appeal subsists. [p. 405]C
Under subsections (2) and (3) of section 12, an appellant is entitled to get a deduction of the time requisite for obtaining a copy of th decree as well as a copy of the judgment and if he has applied for copies of the decree and the judgment at putting the period of limitation prescribed for presentation of an appeal, unless the two period overlap partially or entirely in which case the appellant is not entitled to get a deduction of the same period of time twice over. [p. 406]E
In the present case, the judgment was pronounced on the 14th May, 1947, and in taking a copy of the judgment 11 days were required but the decree was singed on the 30th June, and application for copy of the decree was made on the 5th August, and copy was obtained on the 25th August, and the appeal was filed on the 28th August, 1947. Therefore, the application for copy of the decree having been made when the right to appeal did not subsist, the appellants were not entitled to avail of the provisions in section 12 and exclude the time in obtaining copy of the decree. Or course, the appellants would be entitled exclude the time requisite for getting the copy of the judgment and that is a period of 11 days only. If the time is to be computed from the date of signing the decree on the 30th June, 1947, then the appeal should have been fled on the 10th August, but it was filed on the 28th August, when it was clearly barred by limitation. [p. 405]F.

PLD 1952 Dacca 409
Before Akbar and Guha, J.J.
KALI PRASAD CHAKRAVARTY and others–Appellants.
Verses
JITENDRA NARAVAN CHOWDHURY and others— Respondents.
Appeal from Appellate Decree No. 230 of 1944, decided on 7th August, 1951.
A mortgagor in a simple mortgage can permanently lease out mortgaged property provided by such act the mortgage security is not rendered insufficient. [p. 419]

PLD 1952 Dacca 419
Before Ispahani and Chaudhry, J.J.
KAFILUDDIN AHMED –Appellants.
Verses
SURATENNESSA BIBI and others— Respondents.
Appeal from Original Order No. 103 of 1947, decided on 13th March, 1951.
In the case the application for relief under section 4 was granted at the time of preliminary decree. But as the defendants could not deposit the valuation money, a final decree was drawn up but the relief was nowhere expressly refused to them. The defendants later on simply prayed for permission, in execution proceeding, to exercise the option already granted to them by the Court. [p. 424].
Held, that the option of purchase given under section 4 is not taken away by the final decree and can be exercised in the executing Court till the execution proceeding of that decree is finally terminate between the parties. There is no question of going behind the decree by the executing Court in such a case.

PLD 1952 Dacca 425
Before Muhammad Shababudding, C.J. and Faiyaz AliJ.J.
SOUDAMINI ROY KALAKAR –Plaintiff—Appellants.
Verses
NARENDRA CHANDRA BARMAN on his death minor and another — Respondents.
Appeal from Original Decree No. 104 of 1943, decided on 31st, August 1951.
A record of rights could be validly prepared in respect of non agricultural as well as agricultural lands, though the presumption could not be as wide as would be the case it the entries were with regard to matters which could be rightly and properly included I the record-of-rights. The record being a public record, the entry being one made by a public servant in discharge of his official dues there would arise a presumption under section 103 (b) (c) (v). [p. 434] A.B.C
The removal of the legal disability in respect of certain Hindu widows who by custom were not allowed to remarry, mentioned in the preamble of the act, was certainly the object of the Legislature; and it appears that the Legislature could not have intended that Hindu widows of the caste where custom allows remarriage should not have the advantage of the codified law but should be part to the necessity of proving the custom. The Act therefore, applied to all Hindu widows who remarry, whether remarriage is allowed by their caste or not. [p. 438]D.
Under the Act and the principles of Hindu Law, a Hindu widow by remarriage forfeits her right to the deceased husband’s property, even if the remarriage is allowed by the custom of her caste. [p. 439]E
Section 3 of the Act does not lay down that the remarriage of a widow by itself leads t the forfeiture of her rights of guardianship. It only says that if she or any other person has not been made a guardian under the Will of her husband, application for the appointment of another guardian may be made and the Court may appoint another guardian. {pp. 439, 440]F.

PLD 1952 Dacca 440
Before Amin Ahmed and Guha, J..J.
KAMLA PRASA SUKUL and another–—Appellants.
Verses
SAROJNATH TALUKDAR — Respondents.
Appeal from Original Decree 183 of 1942, decided on 3rd, December 1951.
Advisedly the Legislature has mentioned, “No estate and no share or interest in any estate” in the first part of section 5 and “estates under attachment” in clause 3 of that section. Reading these together, this has been done in order to emphasis that in case of an attachment of an estate, wholly or partially for the whole includes a part for the recovery of arrears of revenue neither the entire estate nor a portion of that estate shall be sold without a notice under section 5. Presumably, this is for the benefit of attaching creditor, co-share, prospective buyer, debtor or defaulter and other parties concerned. [pp. 445, 446]A
In view of the provisions of section 33 of Act XI of 1859, the sale cannot be se aside only on the ground of non-service of notice unless the party affected by it can satisfy the Court that such an irregularity ahs cause substantial injury to that party.[p. 450]B.

PLD 1952 Dacca 450
Before Aspahani..J.
MUNSHI ABDUL GANI and another–—Appellants.
Verses
PROTIVA RANI DEVI and others — Respondents.
Appeal from Original Decrees 1192 of 1943 and 1944 , decided on 23rd, August 1951.
The notice of transfer by sale in execution of a money-decree having been served on the landlord before the sale in execution of the rent decree, it was incumbent on the landlord to make the purchaser in party to the execution proceedings and failure to do so rendered the same in execution of that decree money sale and not a rent sale. [p. 454]A
The relationship of landlord and tenant is an essential feature in order that a rent sale may have the effect of a sale under Chapter XIV of the Bengal Tenancy Act. [p.453]B.
It must be first found, on enquiry, properly held, that by reason of unsoundness of mind or mental infirmity, such person is incapable of protecting his interests. [p. 455]C
Even if parties ere unanimous that the plaintiff was unsound mind an enquiry must be held to ascertain by reason of unsoundness of mind or mental infirmity, such person is incapable of protecting his interest. [p. 455]D

PLD 1952 Dacca 455
Before Ibrahim..J.
RATI KANTA BARMAN–—Appellant.
Verses
NARENDRA MOHAN PRODHAN — Respondents.
Appeal from Appellate Order No. 25 , decided on 6th December 1951.
Section 37-A is mandatory and the Civil Court or the Certificate Officer as the case may be, cannot refuse to set aside the sale on the ground that the Board had no jurisdiction to entertain the application on which the award is based. [p. 457]A.
Subsections (8) does not open any scope for regitating this question before the Civil Court. [p. 457]B.
Rent sale takes effect from the date of confirmation; section 159 (2), Bengal Tenancy Act. A property cannot be said to have been “sold” in a execution of a rent decree, until the sale has become absolute. [p. 458]C.

PLD 1952 Dacca 449
Before Ibrahim..J.
ABDUL HAQUE MONDAL–—Petitioner — Appellant.
Verses
AMTAJ HOSSAIN TALUKDER — Respondents.
Appeal from Appellate Order No. 119 OF 1947, decided on 11th December 1951.
If in respect of a debt which comes up before the Civil Court; that Court finds that there was no application under the Bengal Agricultural Debtors Act, it has to exclude the period covered by the proceeding in calculating limitation, even though the Board came to the conclusion that it was not ad debt or it had ceased t be a debt. [p. 460]A
If there is a bone fide contest before the Debt Settlement Board the parties are entitled to the benefit of section 52, even though the Board comes to the conclusion that the application is not maintainable. The benefit of section 52 cannot be denied to a party on the ground that it was ultimately found by the Court that he application was not maintainable. [p. 460]B.
Rule 17 is not prohibitory but permissive. Rules 11 to 14 require that certain particulars should be stated in the petition for execution to enable the Court to execute the decree. Rule 17 permits the Court to allow amendment of the petition, if any of those particulars is omitted. This does not mean that the court cannot allow any other amendment. [p. 461]C.

PLD 1952 Dacca 461
Before Badiuzzaman J.
SASIKAMAL MAITRA and another –—Appellants.
Verses
MOHANTA BHAGABAN DAS and another — Respondents.
Appeal from Appellate Order No. 1033 of 1945, decided on 21st December 1951.
The opening of a separate account is an good as distribution of rent. The procedure which is adopted in opening a separate account is the same as adopted in distribution of rent under section 88 of the Bengal Tenancy Act. After the opening of a separate account a zamindar is not competent to file a civil suit against all the co-sharers. [pp. 464, 465].

PLD 1952 Dacca 465
Before Ibrahim J.
IMAM SHARIFF and another –—Appellants.
Verses
ABDUL MANAF — Respondents.
Appeal from Appellate Order No. 2 of 1033 of 1940, decided on 23rd January 1952.

Civil Procedure Code )V of 1908), O. XXI, r, 32—Decree must be one for restitution of confined rights against wife or husband —Property of any other person cannot be attached.
Order 21, Rule 32 of the Code of Civil Procedure can have on application unless the decree sought to be executed is one for restitution of conjugal rights.
There cannot be any decree for restitution of conjugal rights except against the wife or the husband and it is only their property that can be attached under this rule and not the property of any other person.

PLD 1952 Dacca 467
Before Ibrahim J.
MASHWAB ALI –—Appellant.
Verses
NIMBAR ALI and others— Respondents.
Appeal from Appellate Order No. 58 of 1949, decided on 3rd January 1952.
Subsection (7) of section 34 of the Sylhet Tenancy Act lays down that an order passed on an application under subsection (6) of this section will have the effect of a decree of a Civil Court. There is no provision in this Sylhet Tenancy Act or in the Civil Procedure Code providing that there shall be no appeal from such an order. Clearly, therefore, an appeal lies.

PLD 1952 Lahore I
Full Bench
Before Cornelius, A.C. J. Muhammad Khurshid Zaman and Shabbir Ahmed—Plaintiff.
GUL ZAREEN KHAN and others — Defendants — Appellants
Verses
AMIR AHMED, deceased, represented by Mst. Farima Bibi and others— Plaintiff—Respondents,
This case referred to the above noted Full Bench, vide orders of Mr. Khurshid Zaman, J, dated the 17th May, 1951.
Section 2 of the Act of 1948 is not retrospective in its operation, and does not preclude the grant of declaratory decrees under custom in suits arising before the Act came into force. [p.5].
It, after the passing of the Act of 1943, the interest of a female owner on a life-estate, being a Muslim, terminates, subsection is to be deemed to open out to the persons who would have been entitled, under the Muslim Personal Law, to inherit the property at the death of the last full owner, and if any such person be not in existence at the time when the succession open out, then his rights are to devolve open his heirs and successors in existence at the time when the succession open out. [p. 7].
It must be overlooked that under the provisions of section 3, upon the termination of the widow’s limited interest only those person will be entitled to share in the e state ho are in existence at that time, and are either parsons who were heirs of the decreased Ali Akbar at the time of his death, on persons who are heirs and successors of other persons, since decease, who were entitled as heirs under the Personal Law to be share in last male holder’s estate.
A suit of this nature is unknown under Muslim Law; the theory of representation finds no place in the Muhammadan Law but under its provisions, the estate of a deceased, person devolves upon his heirs at the moment of his death. The interest of each heir is separate and distinct and no one here can represent any other. As was s aid in Hasan Ali v. Nazo (I L R 11, Ali 456), “the Muhammadan Law does not recognize any reversionary inheritance or contingent interest expectant on the death of another”; it is the death of the last holder which gives birth to the right of the heirs. But such a suit as the present is entirely familiar under the Customary Law of the Punjab, and it seems that the impetration, into the examination of the compet3ency of the plaintiff to sue, of considerations, which belong exclusively in the field of Muhammadan Law, is liable only to confuse the matter. The right of suit of a person, to the property in suits must be determined on considerations arising exclusively out of the Customary Law, under which alone such a suit is competent. [pp. 7, 8].
A declaratory suit under custom is not confined in its effect to the plaintiff or the other parties; the benefit of any decree awarded extends to the entire body of the reversionary and , therefore, it is not, in the absence of any clear indication to that effect under section 3 or any other section of the Act of 1948, either possible or permissible to require the plaintiff to establish, as a matter of fact, that he is one of the person who will succeed on the termination of the widow’s limited interest. To do so would be to deprive the suit of an essential characteristic, namely, that of being a representative of a declaration in a suit of this nature would be altogether instructions, and for that reason the Court might be required to consider seriously whether it should or should not make the declaration desired, are there in which it can be demonstrated that neither the plaintiff nor any reversionary under custom can possibly be included in the list of persons who at the termination of the limited interest of the female holder would be entitled to inherit as heirs under section 3 of the Act of 1948. [p. 8]
The status of an heir cannot be determined until the termination of the widow’s limited interest. But qua the suit under custom, it is not necessary that the plaintiff should process the status; it is sufficient that he should be a reversioner, and to many cases, even a remote reversioner may sue effectively in the presence of nearer reversioners. It is obvious that to oblige ev3ry reversioner who has the right to sue under custom, to wait to exercise this right until he acquires the status of an heir upon the termination of the widow’s life interest, would in many cases defeat the right under custom altogether as limitation is six years from the date of the alienation. [p. 9].
The Act of 1948 does not sweep away all customary estates at one stroke “or convert all existing estates into simple estates held under Shariat”. [p. 90].
The governing considerations are that the competency of such a suit by a reversioner should e determined exclusively under Customary Law, and as such suits are representative in character unless it is proved that none of the reversioners can in any circumstances inherit any part of the estate, under section 3 of the Act of 1948, the suit-cannot be defeated for lack of competency. [p. 11].

PLD 1952 Lahore II
Before S.A. Rahman and Shabir Ahmed, J. Mirza and another—Convicts—Appellants
Verses
CROWN —Respondents,
Criminal Appeal No. 206 of 1951.
It is not necessary for the application of section 460, Pakistan Penal Code to the case of a person not directly responsible for voluntarily causing death no prove that the ingredients of sections 34 or 149 of Pakistan Penal Code exist. Law look with great disfavor on persons who commit house-breaking by night or lurking house=trespass by nigh and makes all persons guilty of these offences liable to severe penalty if any of them voluntarily causes death or grievous hurt or attempts to voluntarily cause death or grievous hurt to any one even if their companion responsible for the result above mentioned had done the act without their knowledge and even against their wished. [p. 22].
The powers of the Appellate Court to alter a conviction are very wide under section 423 of the Code of Criminal Procedure, but they are subject not the condition that the altered conviction should not be such which could not have been recorded by the Trial Court. [p.22].
Sections 236 and 237 of the Criminal Procedure Code made the conviction of the appellants under section 460 of the Pakistan Penal Code lawful in spite of the fact that they were not charged under that section but only under section l302, Pakistan Penal Code. [p.23].
In the present case the allegations was that Sultan was killed after persons who cause his death had along with others broken into the house of the victim, and a charge under section 3-02/149, Pakistan Penal Code was framed. If the conviction were altered to one under section 460, Pakistan Penal Code, the case still remains one relating to the causing of the death of Sultan and cannot be said to be of such a character as to result in taking he accused persons by surprise. For causing the death of Sultan, the appellants and their companions could and should have been charged under section 460. Pakistan Penal Code, either by itself or along with section 302, Pakistan Penal Code, and therefore section 237 of the Code of Criminal Procedure will have application, with the result that though they were not charged with that offence, they could be convicted thereof. [pp. 23, 24].

PLD 1952 Lahore 25
Before M. R. Kayani and Shabir Ahmad, J.J —Appellants
MST. RASHIDA KHANAM—Defendant —Respondents
Verses
NIAZ AHMAD and others—plaintiffs.—Respondents,
Civil Miscellaneous Petition in Regular First Appeal NO. 13 of 1949, decided on 25th October, 1951.
O. XLI r. 10, CPC gives a vast direction to the Court, which may permit itself to be influenced by any reasonable circumstance, including the poverty of the appellant or a deliberate intention on his part to avoid execution for costs in the first Court. [p. 27]/
The appellants attitude in avoiding payment of costs of the Trial Court is a circumstance which should justify an application under O. XLI rule 10, if this indicates the poverty of the appellants, there is nothing in the language of rule 10 to prevent the Appellate Court from taking action on that ground alone. If in the restricted language of the English rule it has been treated as “special circumstance” justifying an order for deposit of security, a fortiori it should be treated as an important circumstance under the vast discretion given to our Courts by rule 10 of the Code of Civil Procedure.
It is preferable to treat poverty as a circumstance in favor of stances which should clause the exercise of discretion to operate harshly against the appellant without any neglect on his part. [p.30].

PLD 1952 Lahore 31
Before Cornelius, A. C. J.
Mst. ALLAH JAWAI- Plaintiff-Petitioner
Verses
FARID—-DEFENDANT—Respondents,
Petition No. 67 of 1951, decided on 15th October, 1951.
The Senior Sub-Judge, Montgomery, who tried the suit held that his Court had no jurisdiction because no cause of action had accrued to the plaintiff in the Montgomery district. Nevertheless, he received evidence and recorded findings in respect of each of the issues on the merits as well, and eventually dismissed the suit.
In view of the absence of jurisdiction, the findings on the merits have no validity. [p. p. 32].
In a case for dissolution of marriage on the ground stated in sub-clause (b) of clause (Viii) of section 2 of the dissolution of Muslim Marriages Act, 1939, viz., that the husband “ associates with woman of evil repute or leads an infamous life”, in order to determine where the cause of action arises, it is necessary to search for the place at which the association with women of evil repute or the leading of an infamous life has taken place or is alleged to have taken place. [p. 33].
Place where the wife undergoes mental suffering on account of such behavior of her husband does not determine the choice of a forum for the wife’s suit.
According to section 20, Civil Procedure Code, the ordinary place of suing is that where the defendant resides of works for gain, and where a suit is brought in some other place, the burden lies upon the plaintiff of showing that the whole or a part of the cause of section has arisen in such place.
“Cause of action” has been defined to mean every fact which if traversed, it would be necessary for the plaintiff to prove in order to support the claim to the judgment of the Court. Another definition is “everything which, if not proved, would also been described as the bundle of essential facts within it is necessary for the plaintiff to prove before he can succeed in the suit”, It seems to be clear on a true construction of sub clause (b) of clause (viii) of section 2 of the relevant Act, that proof of the infliction of mental suffering upon the wife is not required in a case falling under this sub-clause it will be assumed that such suffering has been inflicted and, indeed, it would be no answer to a case under this sub-clause that the conduct complained of, namely, association with women of evil repute or leading an infamous life, did not in fact cause any mental suffering to the wife. What the plaintiff would require to prove if a plea lying under this sub clause were traversed would be that there was actual association with loose women or actual living of an infamous life by the husband. [p. 33].

PLD 1952 Lahore 34
Before Muhammad Jan, J.
MUHAMMAD HAFEEZ – Appellant
Verses
CROWN —Respondents,
Appeal No. 299 pf 1951, decided on 24th October, 1951.
A perusal of section 234, Criminal Procedure Code, would make it clear that it does not allow one trial in respect of three transactions of the same kind made up of different three transactions of the same kind made up of different offences. It only provided that when a person is accused of more offences than one of the same kind, committed within the space of twelve months, be may be charged with and tries, at one trial, for not more than three such offences. [p. 36].
Where the accused is tried and convinced under different sections of the Penal Code for theft, forgery and attempting to cheat in respect of a certain cheque and for theft, forgery and cheating in respect of another cheque;
Held, that he has thus been tried and convicted in one trial for six offences and some of these offences are punishable with different punishments under different sections of the Penal Code. They are not offences of the same kind and this trial is legal. [p. 35, 36].

PLD 1952 Lahore 36
Before S.A. Rahman, J.
GHULAM SARWAR – Defendant — Petitioner
Verses
SHEIKH RAHMAT DIN —Plaintiff — Respondents,
Petition No 157 of 1951, decided on 8th November, 1951.
Section 109 of the Transfer of Property Act (IV of 1882) provides that if the lessor transfers the property leased, or any part thereof, or any part of his interest therein the transferee in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred, so long as he is the owner of it. The principle of this section must be held applicable as a rule of justice, equity and good conscience, even if the Transfer of Property Act is not in force in this province as a whole. [p. 38].
On principle, as well as on authority, there is no reason why the transferee of a landlord should not have the right to demand rent from the tenant of his own alienor. [p. 39].d

PLD 1952 Lahore 40
Before S.A. Rahman, J.
MUHAMMAD KHAN and others— Defendant — Appellants
Verses
GHULAM RASUL and others—Plaintiff — Defendants —Respondents
Second Appeal No. 83 of 1950, decided on 31st October, 1951.
The document embodying an agreement of sale was lost. A memorandum in brief of the document existed in the deed-writers register who had become an evacuee. Both the deed-writer and his register were not available, but a copy of the memorandum in the hand of the deed-writer was produced in Court.
Held, that the original entries of the memorandum were provable as evidence under section 32(2) of the Evidence Act and copies of these original statements would also be admissible under section 63(3) of the Evidence Act.
A receipt is not in terms covered by section 91 and, consequently, an argument raised on the basis of this section would be of no avail for precluding the respondent from relying on either parole evidence or secondary evidence of the contents of he receipt when the loss of the original has been contents of the receipt when the loss of the original has been proved. Thre is authority for the view that oral evidence of the payment of money, for which a receipt has been taken, is not inadmissible if the receipt is not produced. [p. 440.
Even if it could be held that the contents of he written agreement could not be proved, except by the production of the deed itself or secondary evidence where that was admissible, the factum or existence of the agreement could be proved apart from its terms. The fact f the existence of a particular relationship may be shown by parol evidence, though the terms which govern such relationship appear to be in writing. [p. 44].

PLD 1952 Lahore 45
Before S.A. Rahman, J.
THE AUSTRALASIA BANK Ltd . — Plaintiff — Petitioner
Verses
MESSRS. NATIONAL IMPERIAL FOUNDARY and another— Defendants —Respondents
Petition No. 59 of 1951, decided on 6th November, 1951.
Where a debt was intended to be paid back at Batala in India before the Partition of India, but on Partition the parties migrated to Pakistan;
Held, that the position seems to have developed into that of a case where no place of payment is fixed, as far as the parties resident in Pakistan are concerned. And the general rule should apply in such a case that the debtor should seek his creditor to pay his debt, if the creditor happens to be within the realm, On this view, a part of the cause of action must be deemed to arise where the payment had to be made in discharge of the personal obligation of the debtor, i.e. at the place where the creditor bank carries on business. [p. 47].

PLD 1952 Lahore 48
Before S.A. Rahman. A. C. J.
HAYAT AHMAD KHAN — Petitioner
Verses
BASHIR SAID and another— –Respondents
Criminal Original Petition No. 6 of 1951, decided on 29th October, 1951.
It is open to serious doubt whether section 151 which preserves the inherent powers of Civil Courts to make much orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court are available to support with the sanctions of arrest and attachment of property, disobedience of temporary injunctions issued in suits not falling under rule 2 order 39. It will be seen that rule 1 of that order is of general application to cases where property in dispute in a suit is in danger of being wasted, damaged, etc., and that in rue 1 there is no penal proviso similar to that in sub rule (3) of rule 2. The provisions of order 39 are all in precise terms, and within those terms exhaustive, there is no scope for extending those provisions in any respect by inference or analogy and bearing in mind the existence of other legal provisions whereby an injunction granted under order 39, rule I, is capable or being in force, nothing which touches the ends of justice requires the importation of such a provisions as that in sub-rule (3) of rule 2 into rule 1 of order 39 as well. 9p. 51].
If a contravention of an order is to be visited with penalties of a criminal nature that order must be in clear and precise terms, setting out the obligations resting upon the person affected in clear and unmistakable language. The obligation must not rest upon any implication to be derived from any words used to respect of other matters by the Court, it must be couched in express terms and must be brought directly to the notice of the party. [p. 54].

PLD 1952 Lahore 55
Before A. Muhammad Jan, J.
MUHAMMAD YAQUB and others— Convicts—Appellants
Verses
CROWN — –Respondents
Criminal Appeal No. 289 of 1951, decided on 8th November, 1951.
A report relating to the decoity had been made at the police stations and the police had come to the village for the purpose of investigation and it was I the course of that investigation, howsoever, reply it might have been, that the list was delivered to the police;
Held, that the list should be excluded from consideration.
Memorandum of identification parade prepared by a Magistrate is not the evidence on which conviction can be base. It is only a previous statement made by the witnesses which can be used to corroborate them. [pp.59,60].

PLD 1952 Lahore 67
Before M. r. Kayani and Sabir Ahmed, JJ.
COMMISSIONER OF INCOME TAX, WEST PUNJAB LAHORE AND N.W.F.P,. Petitioner
Verses
MESSERS. KIRPARAM SETHI & SONS, LAHORE—Respondents
Civil Reference No. 6 of 1949, decided on 15th November, 1951.
The application under section 26-A should be by a firm the firm should be constituted under an instrument of partnership and the instrument aforesaid should specify the individual share of the partners. [p. 70].
The object of registration is not that the sum payable by firm itself shall be determined, but that each partner should be assessed separately, with the result that a lower rate of taxation will be applied to him. The information which the assessee gives in the form of application for registration is thus not intended to help assessment but to assist the Income-tax Officer at finding out whether a genuine and valid partnership is in existence, and, if so, what is the share of each partner. [pp. 70, 71].
Subsection (2) of section 26-A requires the application among other things, to be in a prescribed form and to contain prescribed particular. In respect of these prescribed particulars, the Central Board of Revenue was enabled to make rules under section 59, and subsection (2) (e) was expressly intended for rules which may “provide for any matter which by this Act is to be prescribed”, These rules are not to prejudice the generality of the power contained in subsection (1) to make rules “for carrying out the purposes of this Act”. Subsection (2) of section 26-A requires that the application shall contain such particulars as may be prescribed and that it shall be dealt with by the Income-tax officer in such manner as may e prescribed. Going back to rule 3 and to paragraph 3 of he application form., it is found prescribed and that the assessee should certify that the profits of the previous year were divided or credited as shown in section (B) of he Schedule and that the information given in the Schedule was correct. [p. 71].
An application would be properly made if it is in order that is to say, a proper form is used and all information which is required is given. [p. 72].
Section 13 provides for the contingency where no method of accounting has been regularly employed, in which case the Income-tax officer computes the income in his discretion, if the argument that the asssesse should have determined its profits by employment the method of accounting regularly employed by him in his business, as required by section 13 and should not have applied a flat-rate of profit is to be accepted, registration should be refused to any firm which does not regularly employed a method of accounting and that would not seem to be the intention of rule 4 ante. [pp. 72, 73].
What is stated in the rules (rule 4) is that if, on receipt of the application, the Income-tax Officer is satisfied that there is or was a firm in existence constituted as shown in the instrument of partnership and that the application has been properly made, he shall enter a certificate that he instrument of partnership has been registered with him for year of assessment, but if he is not so satisfied, he shall pass an order refusing to recognize the instrument and thus refuse registration. What he has to see, therefore, is ; )1) that there is a firm in existence constituted as is shown in the instrument of partnership, and (2) that the application has been properly made. [p. 71].
Rule 4 shows how the application is to be dealt with by the Income-tax Officer, and if it was intended not prescribe some-thing which went beyond the purposes of the Act, it would not be a rule but a legislative measure itself. [p. 72].
The purpose of the Act is that application should contain such particular as the Income-tax Officer needs for the purpose of ascertaining that a genuine firm is in existence and the assessee’s share in the partnership not that he should decide whether the rate of profit stated in the application is true, or has, I fact been applied.[p. 72].

PLD 1952 Lahore 73
Before S.A. Rahman. J.
ATA MUHAMAMD and 2 others —Defendants- Appellants
Verses
MUHAMAMD DIN and 3 others – Plaintiffs —Respondents
Second Appeal No. 51 of 1950, decided on 12th November, 1951.
The words “at any time” occurring in section 4 of the Punjab Act need not receive the unreasonable interpretation that he petition for redemption could be lodged without any regard for limitation. The Legislature seems to have assumed that the mortgage subsisting at the time of the promulgation of the Act, would still be subsisting when the petition under section 4 is presented to the Collector. On this view there would be not repugnancy between the Provincial; Act and the Limitation Act. [p. 76].
The law of limitation is included n Item 4 in the Concurrent Legislative Last of Schedule VII o the Constitution Act. If the Punjab Act is not be construed so as to do away with the law of limitation in respect of petitions by mortgagors for redemption of mortgages covered by the Act, then to that extent the provisions of this Provincial Law would be repugnant to the provisions of the Limitation Act which is an existing Pakistan Law dealing with matters included in the Concurrent Legislative List, Section 107 of the Constitution Act provide that the existing Pakistan Law in such circumstances whether passed before or after the Provincial Law, shall prevail and the Provincial Law, to the extent of the repugnancy, be void. An attempt therefore, to read into the Punjab Act an implied provision abrogating the law of limitation for such petitions, would be bound to fail to this ground. [p.p. 75, 76].
The Law is well settle that orders and proceedings of Courts of special jurisdiction cannot be challenged in the ordinary Civil Courts if they are with jurisdiction. If, however, those orders and proceedings are ab initio void for want of jurisdiction, that he ordinary Civil Courts have the power to declare accordingly. It is clear in the present case that the mortgage had been extinguished by the efflux of time, before the Collector was a approached under he Act by the respondents. There was thus no mortgage subsisting at the time of the petition under section 4 of the Act, and the subsequent proceedings by the Collector were wholly without jurisdiction. The redemption order by the Collector, consequently, had no legal effect whatever. [p.76].

PLD 1952 Lahore 77
Before A. R. Cornelius A. C. J.
HATIM – Petitioner
Verses
SHAH DIN —Respondents
Petition No. Appeal No. 57 of 1951, decided on 25th December, 1951.
The penalties involved under r. 2 (3) of O. XXXIX, C. P. C., are clearly of a criminal nature, and notwithstanding that no precise procedure has been laid down, it is expected that any Court which feels called upon to impose these penalties should proceed as nearly as possible in the same manner as a criminal Court would proceed; in other words, that at the earlier opportunity, when it is has formed the opinion that facts exist which may require the imposition of the penalties, the Court shall put the person at fault on his guard by framing a question or as an issue which should embody all the elements of a chare under the criminal jurisdiction. The facts should be briefly stated, as they are alleged decision. The facts should be briefly stated as they are alleged to stand against the defaulter, and there should be a receive reference to the law under which the Court proposes to punish him unless he shows cause against such punishment. [p. 80].
It is true that the provisos of O. XIX are couched in general terms, and that it lies within the discretion of the Court to make use of those provisions n an appropriate case. As a general rule, a case involving quasi criminal penalties is not a suitable case for the grant of permission to prove by affidavit, and the Civil Courts would do well in all such case to adopt as nearly as may be the procedure which is prescribed for the criminal courts when applying similar remedies. Such a course will be directly I the interests of justice and will ensure that a full opportunity is allowed to the alleged defaulter to clear his position and explain the allegations against him, before the final order of conviction and punishment is made. This is not to say that there cannot b cases where such penalties have been incurred, in which evidence may suitably be received on a affidavit. [p. 81].

PLD 1952 Lahore 82
Before S. A. Rahman J.
BARKAT ALI— Defendant — Appellant—Appellant
Verses
FAIZ RASUL and others—(Plaintiff)—Defendants—Respondents
Regular Second Appeal No. 208 of 1950 decided on 6th November, 1951.
Where plea taken at time of arguments was a pure question of law on the facts which were proved on the record the trial Court very rightly gave effect to the plea. If, of course, at that late stage, a mixed question of law and fact had been raised requiring investigation into facts, the plaintiff respondent could have successfully raised the raising of such a question. There was no reason why a point should not have been allowed to be taken which was a pure point of law and went to the root of the case. [p. 83].
The previous decree for possession having been allowed to become barred by time, a second suit for possession could not be instituted the face of the provisions of section 47 went to the root of the case. [p.83].

PLD 1952 Lahore 84
Before M. r. Kayani J.
CHAUDHRI MUHAMMAD IQBAL —Appellant
Verses
MST. SARDAR BEGUM—Respondents
First Appeal No. 27 of 1951 decided on 28th November, 1951.
The deceased engineer was in general charge of an engine. He proceeded to oil the engine in which operation he lost his life.
Held that even if the duty of oiling the engine had been entrusted to another man, if the engineer who is in general charge of the engine does something that is “reasonable, necessary and incidental “ to his work he would not be creating an unnecessarily perilous situation for himself. [p. 88].
Some of the guiding principles may be summed up thus 1. If the injury is occasioned by doing something which this no relation to the workmen’s assigned work, it does not arise out of his employment. 2. But if what he does is reasonable necessary and incidental to the work entrusted to him, although belonging to another department, it arises out of his employment. 3. A mere prohibition does not by itself, disentitle him to compensation, if he receive an injury by disobeying it, provided that in his disobedience he follows a recognized practice. 4. There must be something in the nature of a causal relation between the accident and the duty assigned to the workman. 5. The term “employment” should not be confined character, conditions and incidents of the employment and the special risks involved therein. [p. 89].

PLD 1952 Lahore 89
Before S. A. REHMAN AND SHABIR AHME J.J.
THE IMPERIAL BANK OF INDIA, LAHROE===Defendant—Applicant
Verses
M. M. AZIM —Plaintiff—Respondents
Second Appeal No. 94 of 1950, decided on 16th October, 1951.
The plaintiff payee brought the suit for recovery of the amount of a cheque by way of damages suffered by him on account of the negligence of the bank in that it paid out the cheque to holder in due course in spite of being advised by payee and the Controller of Military Accounts (to whose account the amount of the cheque was t be debited) to withhold payment. The suit was resisted on the ground that the plaintiff had no locus standi to sue as there was no privity of contract between him and the defendant Bank. It was pleaded that he could only sue either the drawer or the endorsee, for damages;
Held, that this was not a case of dishonor f the cheque by the drawer, entitling he payee or holder to sue the drawer after due notice, as laid down in section 30 of the Act. This case is really based on the allegation that there was conversion of the cheque to the prejudice of the plaintiff, owing to the alleged negligence of the Bank. The drawer, to be made liable, may successfully plead that the cheque having been indorsed in blank by the payee and having been paid by the defendant Bank on presentation through another ban, there was no contravention of section 129 of the Act, which is the only section relating to crossed cheques, that could have been invoked by the plaintiff under the statue. This Bank at all and the drawer was notified of he circumstances under which the cheque fell into unauthorized hands, if the contention of the Bank were to prevail, this would leave he plaintiff without any remedy, although he might make out a good case in tort against the Bank. The validity of the defendant’s argument, therefore, is extremely questionable. [p. 94, 95].
Even though the view may be adopted on a narrow interpretation of the statute that the duty to make payment in due course, was owed by the banker to his customer i.e., the drawer of the cheque alone and not to the payee, still as the banker had expressly undertaken not to make payment, at the request of the payee, a duty arose n the part of the banker to take ordinary care to avoid such payment to the prejudice of the payee. [p. 102].
The bank was put an inquiry, after in fact it had undertaken a duty vis-a-viz the payee of the cheque, not to make payment even if the cheque was presented through a bank. It was, therefore, guilty of the breach of this duty in negotiating the cheque. [p. 103].
A duty was owed by the appellant Bank to the plaintiff respondent, to take care and the appellant was guilty of negligence I the performance thereof.[p. 104].
The suit was therefore rightly decreed.
Negligence consists in “the omission to do something which a reasonable man, guided upon those consideration s which ordinarily regulate the conduct of human affairs, would do; or dong something which a prudent and reasonable man would not do”. [p. 95].
Negligence simplicitor would not be tortuous, unless it was proved at the same time that the defendant owed a duty to take care qua the plaintiff.
Two things must co-exist to support the plaintiff’s sut negligence and a duty to take are, owed to the plaintiff. [p. 96].
It would depend o the circumstances of a particular case whether a duty to take care can be deemed to exist or not. [p.100].
In the case of a bank a duty exists to the true holder of a bill of exchange apart from contract or the provisions of statute, under the common law in certain circumstances. [p.101].
A duty can even be undertaken or assumed, without there being a contract for consideration which as would be enforceable between the parties. [p. 101].

PLD 1952 Lahore 104
Before S. A. REHMAN..J.
GHULAM RASUL—Convict—Petitioners
Verses
CROWN—Respondents
Criminal Petition No. 416 of 1951, decided on 1st November, 1951.

The construction which seeks to confine the section to “passengers” is obviously too narrow to be accepted. Members of the public if they commit an offence described in the section within railway premises, would be punishable under it, even if they are not passengers. [p. 107].
There can be no objection to the conviction of a railway official under this section, when the act attributed to him is committed, not while he is purporting to act as a railway official, but in his private capacity. In these circumstances, even the meanest railway official can, with absolute propriety and without detriment to discipline, remove him from the railway premises. The test should, therefore, whether the railway official concerned was acting in his official or in his private capacity I any particular case. The reference to “fare” ticket” or “pass” in the earlier part of the section 120 of the Act would only cover a specific category of the persons within the ambit of the section viz., passengers but that would be no ground for holding that others are beyond its pale merely because a part of the section would be inapt in their case. That part should be held to be applicable so far as may be. [p. 108].

PLD 1952 Lahore 108
Before A.R. Cornelius, A.C. J.
THE DIVISIONAL SUPERINTENDENT N.W. RAILWAY, LAHORE—Petitioners
Verses
INAMUL HAQ BUTT, —Respondents
Civil Revision Petition No. 90 of 1951, decided on 19th November, 1951.
Throughout, in section 15 the references to the claims arising out of delay in payment of wages are in terms which indicate that such claims are for the entire sum overdue as wages, and there are no word which indicate that where a claim is made, it should be divided up from any of the purposes of this section into a series of separate claims for the consecutive wage-periods involved. Again, the period of six months which is mentioned in the first proviso to subsection (2) of this section, is obviously a claim is to be deal with under this particular provision of law. The second proviso enables extension of this period by the authority hearing the claim, for good cause shown, and this makes it further clear that these two provisos contain nothing more than a rule of limitation. [p. 112].

PLD 1952 Lahore 113
Before Conelius A. C. J and Muhammad Jan and Muhammad Khushid Zaman, j.j.
MST. SAYEEDA KHANAM—Plaintiff —Appellant
Verses
MUHAMMAD SAMI, —Defendant —Respondents
With reference to the parties to a marriage, the expression “incompatibility of temperament” must be understood in relation to the various forces acting on the couple which compel or induce them in the direction of harmonious and happy association. There are in favour f such a result a considerable number of powerful factors. Besides, the fact that the pair belong to opposite sexed and many be assumed to possess a normal desire for making a happy union of their lives, there are the various pressures which are exercised by their respective families and by society and in addition through the procreation of children, the forces which surged them in the direction of mutual adaption are greatly reinforced by the affection which accompanies the raising of lack of agreement between the couple to fall within the full meaning of the expression “incompatibility of temperament”, this must be traced to a total lack of sympathy between them, such as induces a resistance to mutual adaptation, despite the various influenced guiding the couple in that direction. There should and must be basically hatred or aversion on the part of one or both of the parties to the marriage to produce such a result.
In view also of the fact that a married couple have enclose association with each other, this utter lack of sympathy or aversion or hatred cannot fail to express itself in the behaviors\ of the couple towards each other. Indeed, the best evidence to establish incompatibility of temperament must necessarily be that afforded by instances of such behavior. It is of course entirely insufficient to establish incompatibility of temperament in a particular case for one of the spouses the declare that their temperaments are completely conflicting and they cannot put together. [pp. 120, 121].
It would be necessary by means of inferences drawn from instances of behavior as between the spouses, to gain an impression the mental characteristic and the general disposition and frame of mind of each of the spouses and thereafter to knew the conclusion that having the minds that they possessed, it was impossible for them to adapt themselves to each other and therefore, they were incapable of living together in harmonious association. [p. 121].
Under Muslim Law, such matters as in compatibility of wife to seek dissolution of her marriage, at the hands of a Qazi or a Court, but they fall to be dealt with under the powers possessed by the husband as well as the wife under the Muslim Law, as parties to the marriage contract. [pp. 131, 132].
Incompatibility of temper meant, dislike or even hatred on the part o the wife for the husband is not a valid ground for divorce under Muslim Law unless the husband agreed to it. [p. 138].
In khula the marriage a dissolved by an agreement between the parties for a consideration paid or to be paid by the wife to the husband, it being also a necessary condition that the desire for separation should comes from the wife. Where the desire for separation is mutual there too dissolution my mutual agreement for a consideration to be paid by the wife to the husband is lawful, but it is described in that case as muhabbat. [pp. 123, 124].

PLD 1952 Lahore 138
Before A.R. Cornelious, A. C. J and Muhammad Khushid Zaman, J.
MAJOR HUGH JOHN BURNS JONES—–Appellant
Verses
MRS CHRISTINE MARY MARGARET BURNS JONES —Respondents
Matrimonial Appeal No. 4 of 1947, decided on 20th July, 1951.

Where the Court is not satisfied of the absence of connivance or condonation it has no discretion of the mater, but is found to dismiss the petition. But in the way, the impression may perhaps be gained that the Burdon of establishing absence of connivance rests on the petitioner, but this is not equivalent to saying that the section 178, aforesaid, a presumption of guilt of connivance has been created, displacing the earlier presumption which has always been against the ex instance of connivance. The incidence of the burden of proof is a determining factor only if the tribunal finds that the evidence, pro and con, is so evenly balanced that it can come to no definite conclusion. [pp. 140,141].
Connivance is a matrimonial offence, and the same standard of proof must be furnished in order to establish connivance as is ordinarily required for proving the omission of a criminal offence. Ordinarily, the fats which are reduced to establish connivance are numerous and distinct from each other, and while they may, in themselves, appear trifling, it is the effect of th3ese facts taken together and behavior in the light of the circumstances of the case, on which the person pleading connivance relies for establishing his case. Therefore, by its very nature a plea of connivance is circumstantial in its character and to such a plea the ordinary rule of circumstantial evidence must apply namely, that if the facts and circumstances are susceptible of an explanation which does not necessarily involve of corrupt motive in guilty intention on the part of the person against whom the plea is raised then the plea cannot be held to have been established. [p 142].
The point for consideration whether the view that the petitioner tolerated his wife’s behavior n relation to the correspondent only for the purposes of his own advancement and ceased to do so immediately that the prospect of advancement came to an end is the only possible view which will explain the petitioner’s behavior, and it is further necessary to consider whether, in a matrimonial sense, it is a corrupt motive to tolerate such association between one’s wife and another person, for the a sake of furthering one’s official career. [p. 146].
Held, on evidence in the case that the petitioner had reason not to doubt the chastity of the wife, and reason also to place complete trust in the honor of the co-respondent, his immediate superior, from whom he had received nothing but good. The hypothesis of a corrupt motive therefore is not necessarily the only explanation for the petitioner’s lack of caution or wisdom or attention, whatever it might be called in regulating his wife’s association with the co-respondent. [p. 147].
PLD 1952 Lahore 148
Before Cornelius, A. C. J.
ABDUL SALAM —–Petitioner
Verses
MIAN MUHAMMAD SHARIF, LIQUIDATOR ASIATIC COMMERCIAL BANK LIMITED IN VOLUNTARY LIQUIDATION —Respondent
Civil Original Petition No 33 of 1950, decided on 13th November, 1951.
As a general rule, the cause for removal must point to some unfitness of a person it may from personal character, or from his connection with other parties, or form circumstances in which he is mixed up some unfitness in a wide sense of the term. [p. 151].
The cause is to be measured by a reference to the re al, substantial, honest interests of the liquidation, ant to the purpose for which the liquidator is appointed. Of course, fair play to the liquidator himself is not to be left out of sight, but the measure of due cause is the substantial and real interest of the liquidation. [p. 151].
On examination of the provisions of section 207, it would appear that those provisions do not have the effect of either validating or invalidating any action of a company. The precise effect of the provisions of section 207 is to divide al voluntary windings-up, which are commenced under section 203, into two categories, namely, members voluntary winding-up and creditors voluntary windings-up. If a certain condition is satisfied, namely that a declaration of solvency has been made by the directors the winding-up qualifies for the description members winging-up, but if this condition is not satisfied, the winding[up will be classes as a creditors winding-up. It would thus appear that no winding-up commenced, as provided by section 203can be rendered bad by reason of anything appearing in section 207. [p. 154].
The requirements of section209-A of the Companies Act, notwithstanding that they are covered by a penal sanction, would be held to be directory, and not mandatory, in a case like the present. [p. 156].
In a case of failure to comply with section 209-A of the Act and to take proceedings for the appointment on a liquidator under section 209-B the failure does not invalidate the appointment of the liquidator. [p.154].
Appropriate action in this case will be to require the liquidator to call a creditors meeting for the purpose of considering the question of nomination of liquidator. P[. 154].

PLD 1952 Lahore 156
Before Muhammad Khurshid Zaman and Shabbir Ahmed. J. J.
MUHAMMAD GHAZANFER —-Petitioner
Verses
MST. NOOR BASAR —Respondent
Civil Miscellaneous Petition No 248 of 1951, decided on 6th December, 1951.
The language of section 5 of the Limitation Act shows clearly that the intention of the Legislature was that applications of the present kind (i.e. to be allowed to appeal as a pauper) could be admitted after the period of limitation had expired if the conditions required by section 5 of the Limitation Act were fulfilled, Section 5 of the imitation Act was applied by al the High Courts in British India before its partition to applications under Oder 45 of the Code of Civil Procedure for leave to appeal to the Judicial Committee of the Privy Council and there is no reason why it should not apply to applications under Order 55, Rule 1 of the Code of Civil Procedure, [p. 159].
Both Articles 170 and 179 speak of applications for leave to appeal and there no doubt that when mentioning applications for leave to appeal in section 5 of the Limitation Act the Legislature had in view the language of Articles 170 and 179 of that Act and not of any other enactment. But even if at the time of the enactment of that section the Legislature had in view the language of the Code of Civil Procedure their intention may have been not to make applications mentioned in Article 179 subject to the section, but could not have been to exclude applications under Order 44, Rule 1, Civil P.C., from the operation of that section. [pp. 160, 161].
The rule makes it clear that the application is to obtain leave to appeal and the mere fact that the permission sought is to appeal as a pauper cannot justify the application being treated as not being one for leave to appeal [p. 16].
If the prescribed period of limitation has expired, the reason desiring the Court to condone the delay must explain every day of the delay. [p. 161].

PLD 1952 Lahore 161
Before Cornelius ,A. C. J and Muhammad Zaman. J.
MURAD and others –Plaintiffs—Appellants
Verses
BAKHSHA and others —Defendants —Respondents
Letters Patent Appeal No 32 of 1951, decided on 15th December, 1951.
The two clauses (a) and (b) of subsection (3) of section 1 of the Redemptions of Mortgages (Punjab) Act (1) of 1913 are distinct from each other and are only to be applied in the alternative, so that it is inconceivable that they should both be applied at the same time in a particular case [p. 165].
The only cases which are excluded from the jurisdiction of the Collector under the Act, are those in which the area mortgaged is in excess of 50 acres and also the principal money secured exceeds Rs. 5,000. [p. 164].
The Act is intended to grant relief to a certain section of the agriculturists who were thought to stand in need of such relief and, in view of its evident purpose, it should be construed in a beneficial way but it is to say, so as to afford the largest measure of relief in the intended sense. The determination of jurisdiction under the Act would also follow the same principal. The Redemption of Mortgages (Punjab) Act, 1913, is not a statute which requires to be strictly construed on the supposed ground that it restrains the ordinary jurisdiction of Civil Courts. The statute does not bar parties from going to the Civil Courts to seek relief, although it provides in section 12 that the result of proceedings taken under the Act shall, subject to certain limitations, be conclusive. Consequently, in respect, of any rate of the determination of jurisdiction at the premilimarny stage, the statute has to restraining effect. [p. 66].

PLD 1952 Lahore 185
Before M. R. Rayani and Shabbir Ahmad,J.J.
NOOR DIN—Convict—Appellant
Verses
CROWN —Respondent
Criminal Appeal No. 492 of 1951, decided on 9th January, 1952.
Mst. Saphian and Dina, her paramour, were killed on the same night, the motive being the resentment of the three convicted persons who were relatives of Mst.Saphian.
In the first information report it was stated that all the three persons reported against had at (about 9 or 10 p.m) on the night caused injuries to Mst. Saphian and that Nur Din. ( one of three) alone had at (about 3 or 4 p.m) caused fatal injuries to Dina, the paramour of Mst. Saphian.
The question was raised in appeal that the joint trial of the three convicted persons for the two incidents, in the latter of which only Nur Din applicant was concerned, was not allowed by law and that the proceedings of the trial Court were illegal.
Held, is cannot be doubted that the two assaults were actuated by the same motive nor is it unlikely that both of them were planned by all the three appellants but in order to come to the conclusion that the two incidents, which took place at different times, were part of the same transaction, the Court must have before it some evidence, direct or circumstantial, in support of it, which was lacking in the present case.
Moreover, the question whether or not a joint trial with respect to two distinct offences, on the ground that they were committed in the course of the same transaction, was allowed by law, is to be decided not on the consideration of the evidence produced in the case but on the accusation may by the prosecution. [p. 189].
The first information report about the two offences separated them by about six hours and did not even hint that the second offence was committed by Nur Din as a result of a conspiracy between him and his two co-accused or as a result of abetment by them. Again in the report submitted by the police under setion173 of the Code of Criminal Procedure, it was clearly stated that the two incidents had taken place at the times mentioned in the first information report and that while the three appellants were responsible for the second. [p. 190].
Held, finally that the accusations in the present case do not even remotely suggest that the two offences were committed in the course of same transaction and, therefore, clause (d) of section 239 of the Code of Criminal Procedure had no application at all. [p. 190].
When one considers all the section of the chapter it becomes apparent that the intention of the Legislature in using the words former part of this chapter was that all sections in chapter XIX, which proceed section 239, were applicable to the extent to which they were not repugnant to the provision of that section itself.
When section 239 says that the following persons may be charged and tried together, one meaning of what it says can be that if the conditions enumerated in that section exist, then apart from a joint trial of which persons, someone or other of such persons may in addition be tried for offences committed by them separately, provided this part of the trial is permitted by section 234. But there can be another meaning, and an equally effective meaning, that only such persons may be tried together as fulfill the conditions laid down in section 239 and no other charge can be joined in the same trial. And considering that section 239 is an exception to the general rule enunciated in section 233 the rule of a separate charge and a separate trial for every distinct offence it would appear that the second meaning in preferable. For where there is a rule and an exception thereto, then unless a case falls strictly into the language of the exception, it should attract the Act. [p. 199].
If two or more accused persons are to be jointly tried with regard to different offences of the same kind committed within a period of twelve months the accusation must be that all the offences were committed jointly by all of them. The word jointly in clause (c) of section 239was employed with a purpose and cannot overlooks. [p. 194].
Joint trials of different persons are allowed because they are accused of having committed the same or similar offences connected one with the other and if it were permissible to add against one of the accused persons charges which have no connection with the charge with respect to which all of them are being tried it is by no means unlikely that the case of those accused persons who are not tried for the additional charges will be prejudiced. Confusion is also likely to result and as an accused person is to be given all reasonable opportunities in defend himself, a mode of trial which is likely to confuse any of the accused persons must as far as possible be avoided unless the law allows that procedure to be adopted. [pp. 194, 195].
There is a distinction between an illegality and an irregularity for the purposes of section 537 of the Code of Criminal Procedure. [p. 197].
Where the non-compliance with the provisions of Code of Criminal Procedure is with regard to a matter of a formal character, the results an irregularity curable by section 537 of the Code, but where the non-compliance amounts to a serious and substantial disregard of the provisions of the Code relating to the mode of conducting a trial, the result is an illegality.
A trial in contravention of the relevant provisions of Chapter XIX of the Code of Criminal Procedure is illegal and section 537 of the Code of Criminal Procedure cannot be invoked. [p. 197].
An inquiries into cases trial by the Court of Session are not subject to the provisions of Chapter XIX of the Code of Criminal Procedure nor are there any other provisions in the Code requiring separate inquiry into separate offences the charges (though infringing the provisions of section 239 Criminal P.C. ) and the commitment order under Chapter XVIII of the Code were not invalid.

**********
bvP. L. D 1952 Lahore 200
Before S. A. Rahman, J
CH BARKAT ALI —Plaintiff—Apellant
Versus
THE WEST PUNJAB PROVINCE — Defendant — Respondent
Regular Second Appeal No. 319 of 1950 decided on 30th November, 1951.
Two persons submitted a joint tender for the lease of land belonging to Government to the Colonization Officer. They offered to pay R. 30/8/- pr acre per harvest as lease money. The tender was accepted the same day by the Colonization Officer. Next day, the tenderers put in a petition alleging a mistake of fact on their part and preying for cancellation of this tender. They repeated the same request by another petition. The Colonization Officer decided to rescind the contract with them in accordance with the published conditions of temporary lease issued by him. He further directed that fresh tenders he called for the lease. As a result, the lease was ordered to be given to some other person who offered Rs. 18/12/- per acre per harvest. The Colonization Officer then took steps for realization of the shortfall as compared with the tender submitted by the two persons jointly. He issued two certificates, one for the of Rs. 13,876/12/- (the total sum) from one, and the other for the recovery of Rs. 6,200/4/- from the other joint tenderer as arrears of land revenue. These certificates were forwarded to the Collector for making the recoveries. The two persons then bought two suits, out of which the present appeals across for a declaration that they were not liable to pay the amounts demanded from them and for injunctions to restrain Government from recovering the sums in dispute. {pp. 203, 204].
Held, that even if certificates had been issued against the two plaintiffs individually for the whole amount, the action could not been objected to, provided the Government did not retain the double payment but refunded whatever was in excess of the sum due from them. That stage had not yet arrived and the mere act of issuing a certificate for the recovery of the total sum due, from one out of the two joint tenderers, could not lead to the conclusion that the intention of Government was to give p their claim against the other. The Collector had still the opportunity of rectifying the mistake, if any, the exceed that for which he had incurred joint liability and, therefore, he did not stand absolved from it. [p. 205].
According to the conditions of temporary lease of Government lands published at page 33 of the Punjab, Colony Manual, Volume II, 1942 Edition, and promulgated under section 10 of the Colonization of Government Lands (Punjab) Act 1912 no person would be entitled as of right to receive a grant and the Financial commissioner retained an absolute discretion in the selection of tenants. The argument, however, that o enforceable contract could come into being till the Financial Commissioner had finally selected the tenant is devoid of force. That stage would arise subsequently when the grant is to be actually made to a tenant. The contract in this case was complete at an earlier stage, as soon as the tender submitted to the Collector was accepted by that officer, in accordance with the notified conditions even though no tenancy had yet come into existence. [p. 205].
It is assumed that the conditions were issued by the Provincial Government under section 10 of the Act, then it is clear that, subject to the control of the Financial Commissioner, the Collector had the discretion by a written order, to declare which of the published conditions would apply to any particular transaction of lease. Reference in this connection may be made to subsection (3) of section 10 of the Act. The Collector under this provision was entitled to omit any of the published conditions. [p. 206].
The Financial Commissioner or the Development Secretary to the Financial Commissioner were not purporting to act as the mouthpiece of the Provincial government under the provisions of section 10 of the Act, in issuing he form of notice. It was not issued in the name of the Governor of the Punjab. It must, therefore, be regarded merely as an administrative or executive order issued under the authority of the Financial Commissioner himself. As such it has no statutory force and section 28 of the Act, consequently, is not attracted to these cases. [p. 207].
Apart from section 10 of the Act, the Collector or even the Financial Commissioner seems to have no power to issue a notice of conditions and even under that section, the Collector’s authority is confined to selection out of conditions already issued by Government. [p.208].
It cannot be maintained with any show of reason that the second part of section 28 of the Act applies to all the penalties, etc., to which the Crown may become entitled, whether under a statute or a contract which had no connection with the Act. [p. 208].
Unless the penalty is impossible under a condition which has the sanction of the Act behind it, the sum claimed cannot be held to the within the scope of section 28 of the Act and, therefore, could not be recovered as an arrear of land revenue. In the present cases it was not shows that the penalty in question was recoverable by virtue of any provision of he Act or any rule or condition issued there under. [p. 208].
Section 7 of the Revenue Recovery Act (I of 1890) enacts that nothing in the foregoing section of the Act shall be construed to affect the provision of any other enactment for the time being in force for the recovery of land revenue or of sums recoverable as arrears of land revenue. If, therefore, there is any Provincial Legislation existing on the subject, that would be allowed to prevail notwithstanding that it may be in conflict with the provisions of section 4 of the Act. Such a provision exists in the shape of clause (xiv) of subsection (2) of section 158 of the Punjab Land Revenue Act. This is to the effect that a Civil Court shall not exercise jurisdiction over any claim connected with or arising out of the collations by the Government or enforcement or enforcement by the Government of any process for the recovery of land revenue or any sum recoverable as arrears of land revenue. This takes away the remedy conferred by section 4 of the Revenue Recovery Act so far as the Punjab is concerned. [pp. 208, 209].
The law is well-settled that the jurisdiction of general Civil Courts is not ousted in any matter unless thee is express enactment to that effect by the Legislature or the result follows as a necessary intendment of the law.
An order passed by a special tribunal would only be sacrosanct if it is passed with jurisdiction. In that case only, the correctness of the order could not be impeached in the general Civil Courts. This new would be in accordance with the provision of section 9 of the Civil P.C. [p. 209].
If the person concerned sets up a case that the sum in question was neither land revenue nor a sum recoverable as an arrear of land revenue, the suit could not be shut out of the cognizance of ordinary Civil Courts. In such a case, the Revenue Officer or Courts can declare accordingly. To that extent the decision by the Civil Courts would not amount to an encroachment on their special rights. [p. 209].

P. L. D 1952 Lahore 209
Before S.A. RAHMAN, J
CHAUDHARI GHULAM HUSSAIN —Plaintiff—Apellant
Versus
MUNICIPAL COMMITTEE, SIALKOT CITY — Defendant — Respondent
Regular Second Appeal No. 178 of 1951 decided on 7th November, 1952.
Where it was argued that under section 193 of the Punjab Municipal Act (III of 1911) as amended by the Punjab Municipal (Executive Officer) Act, 1931, the power to grant section was vested in the Executive Officer who had accorded sanction to the building application in this case and, therefore, that officer alone could have, if at all, revoked the sanction and not the Municipal Committee.
Held, on second appeal that this was a new point which involved a question of fact as to whether the sanction was given by the Executive Officer and revoked by the Committee alone or by the Executive Officer also in addition, and as such it could not be permitted to be raised at this late stage. [p. 22].
That sanction to build is an “order” is clear on a reference to section 193 of the Act itself In subsection (4) of that section it is mentioned that the committee may pass order sanctioning or refusing to sanction such erection or re-errection”. The introduction of section 193 (A) conferring a power to modify a sanctioned plan by an amending Act, on this view, must be regarded a merely a provision ex abundanticautela. The Committee had power, owing to this general provision, to recall the previous sanction. [p. 215].

P. L. D 1952 Lahore 215
Before Muhammad Munir C. J. and Muhammad Jan, J
CROWN —Appellant
Versus
FIAZ MUHAMMAD — Accused — Respondent
Criminal appeal No. 459 of 1951 decided on 21st February, 1952.
Undersigned telegrams and telephonic messages are not First Information Reports within the meaning of section 154 Criminal P. C. and if after the receipt of a telegram or telephonic message the police proceed to the spot and take down the information from the complainant or the informant and get it signed by him, the singed statement would be the First Information Report and not the telegram or the telephonic message. [p. 218].
As entry made in the daily diary of the police station of receipt of a telephonic message from a head constable (not in charge of a police station) to whom the report of the occurrence was stated to have been made by the complainant, is not the First Information Report, and the complainant could not be contradicted within meaning of section 145 Evidence Act by whatever was recorded in the entry because it was not a statement made by him.

P. L. D 1952 Lahore 219
Before S. A. Rahman, J
MEHRAJ DIN –Defendant –Petitioner
Versus
MST. RAFIA BEGUM — Plaintiff and others— Defendant –Respondent
Revision Petition No. 25 of 1951 decided on 23rd October, 1952.
Section 80-A of the Government of India Act, 1915, which was incorporated in the Consultant of India Act, 1919, required that any Provincial Legislation that is designed to effect a central enactment would have no validity unless previous sanction of the Governor-General for such amendment had been obtained.
Where there was nothing to show that such previous consent had in fact been obtained while inserting Article 13 in Schedule 1 to the Court Fees Act, 1870, but the Punjab Gazette notification by which the Amending Act, when passed, was published for general information contained the statement that he Act received the assent of the governor of the Punjab as well as of the Governor-General, after it was passed by the Legislature. [p.220]A.B
Held, that there was presumption that all official acts were performed regularly and in due course and that in the absence of evidence to the country the requirements of section 80-A (2) of the constitution Act of 1915, as embodied in the Act of 1919, requiring the previous sanction of the Governor-General must have been satisfied in the present case. [p. 221]C.D.
Where there was no mention of section 44 of the Punjab Courts Act in the revision petition Article 12 of Schedule I to the Court Fees Act was not in terms attracted to the case .The Court Fees Act is an fiscal enactment and must receive a strict construction as far as possible in favour of the subject. The only other provisions of the Court Fees Act that could be applied was Article I (d) of Schedule II to the Act and a Court-fee of 2 rupees was quite enough. [p. 22]E.

P. L. D 1952 Lahore 222
Before Muhammad Munir, C. J. and Muhammad Jan, J
CROWN – Appellant
Versus
FAIZ MUHAMMAD EJAZ LUDHIAVNI — Accused –Respondent
Crown’s Appeal No. 124 of 1951 decided on 18th March, 1952.
The essential element of definition of “news” is novelty or newsness of something reported. The matter reported may be a happening, an event or an act and the news will be public news within the meaning the Act if the public are interested in the matter reported. Thus, any document which purports to give information of a recent happening would be a new-sheet if the event reported is such that the public are interested in knowing it. It may be a newspaper, a placed or a handbill. Provided it contains fresh information of general interest, it would be a news-sheet, though a poster, if it merely amounts to an announcement or an advertisement, may not come within that definition. [p. 226].

P. L. D 1952 Lahore 227
Before S. A. Rehman, J
MST. FAZLAN BIB —Plaintiff – Appellant
Versus
MUHAMMAD AZAM — Defendant — –Respondent
Second Appeal No. 5 of 1951 decided on 19th October, 1951.
The wife would be entitled to bring a suit for dissolution of marriage in the district of her residence provided she could establish that she had been unjustly turned our from the house by her husband and was entitled to live apart and to be maintained by him where she resident. If it could be proved that conduct in living apart from the husband was justified and further that the husband had failed to maintain her for over two years prior to the institution of the suit, she could two years prior to the institution of the suit, she could legitimately claim dissolution of marriage from the Courts in the district of her residence, as part of the cause of action would in that case be deemed to arise within the district where she had taken up residence. [p. 229].

P. L. D 1952 Lahore 230
Before Muhammad Khursid Zaman, J
MST. MUNI – Defendant —Appellant
Versus
MST. KHAN BIBI— Plaintiff
Second Appeal No. 6 of 1951 decided on 5th February, 1952.
The decisive issue in the case was whether Mst. Munni appellant was only a life tenant of the property in suit. It cannot be seriously urged that Mst. Munni would not be adversely affected if this issue is answered, as it has been in the affirmative. The finding of the lower appellate Court that she hold only a life interest in the property in dispute is an attack o her legal character which she is entitled to repel and she can only do so by preferring an appeal.
Analogy from pre-emption case in which the vendor is not regarded as necessary party to the suit is not opposite because in pre-emption case the power of the vendor to alienate the property is never in question. [pp. 234B, 235C].
In the case of self-acquired property the general custom of the Province favors the succession of daughters in preference to collaterals. It is true that answer to Question No. 17 Customary Law of Mianwali District states that there is no distinction between ancestral and self-acquired property so far as succession of daughters is concerned, but the value of this rule of custom, which is to be found in the riwaj-e-ams of almost all the districts of the Province, has been completely destroyed by a number of judicial decisions in which, notwithstanding the rule of custom stated above, daughters have been held to be preferential heirs in respect of self-acquired property of their father. [p. 236]E.

P. L. D 1952 Lahore 237
Before M.R. Kayani, J
MALKANI BHAG BHARI – Defendant —Appellant
Versus
MALIK FATEH MUHAMMAD and others — Plaintiffs—Respondent
Civil Revision Petition No. 224 of 1951 decided on 13th February, 1952.
The matter in respect of which the plant was sought to be amended became controversial after the written statement had been filed but it cannot be said that they were not raised in the original pleadings. The plaintiffs did not ask for any immediate relief in respect of two properties o the assumption that they constituted a life estate under custom, and the did not ask for an immediate relief even in amended plaint. Further if custom failed, there would be no question of any life estate left, and the entire property would be governed by personal law. By the very nature of the dispute itself, there would be no change in the subject-matter of the suit. [pp. 244, 245].
As regards the alternative relief, the original plaint proceeded on the assumption that the defendant, accepting claim to half of the property in which context, therefore, it was unnecessary to ask for an alternative relief Afterwards as the defendant laid a claim to the entire property, it could not be reasonable argued that this half of he property was not the real question in controversy between the parties. It may sometimes happen that the plaintiff genuinely believes certain matter to be excluded from controversy until the defendant disillusions him. [p. 245D, 245E].

P. L. D 1952 Lahore 247
Before M.R. Kayani, J
NUR MUHAMMAD and another– Defendant —Appellant
Versus
ZAFAR ALI — Plaintiffs—Respondent
Civil Revision Petition No. 236 of 1951 decided on 11th March, 1952.
If the Amending Act touches a right in existence at the passing of the Act, it is more than a mere matter of procedure, and operates only prospectively unless a different intention is expressed but that if it is a matter of procedure, its effect is impliedly retrospective. [p. 247].
A right of appeal is a vested right and in principle a petition of revision is as little a matter of procedure as a petition of appeal.
It is wrong to suggest that providing a right of revision is merely an alteration in procedure, for if by another Amending to Act, the amendment in question is repealed, it would be correct to say that the right of preferring a petition in revision is taken away, and incorrect to say that the procedure has undergone a change. [p. 248]B.
Stretching back of rights cannot be imagined except by legal fiction, and legal fiction is made to exist by legal methods. If not so made, it is pure fiction unless, of course, the matter is only procedural. [p. 247]C.

P. L. D 1952 Lahore 249
Before S.A. Rehman, J
MALIK ALI AKBAR —Appellant
Versus
METRO GOLDWYN MAYER INDIA LTD —Respondent
First Appeal No. 32 of 1951 decided on 30th January, 1952.
The plaintiff appellant was running the Plaza Cinema at Lahore and in that capacity he worked as exhibitor of fills of which the dependant was a distributor. The defendant company had its head office at Bombay and a branch office the Lahore. The contract on which the suit was founded was entered into at Lahore on the 8th April, 1949. the suit was resisted on the ground that clause 52 of the agreement interprets which provided that any legal proceedings in respect of any claims matters or dispute on any account whatsoever shall be instituted by the exhibitor I the High Court of Judicature at Bombay which Court shall also have jurisdiction and the next clause 53 provided that all dispute, differences or claims arising out of and/or in connection with the agreement or any other agreement between the parties hereto shall, should the distributor so elect and at the distributor’s opinion, be referred to the arbitration of the Bombay Chamber of Commerce. [p. 250]. A.B.C.
Held, that the correct rule I such cases seems t be that a clause of this character in a contract providing for determination of all disputes arising between the parties to the contract, by a foreign tribunal, must be construed as a submission clause for arbitration purpose. It does not really oust the jurisdiction of the local Courts but the clause may be invoked for the purpose of asking for stay of a suit brought before the local tribunal in order that agreement by which the parties bound themselves might be given effect to as an arbitration agreement. [p. 252]d.
The jurisdiction of the local Courts is by no means outset, and it is only a question for consideration whether a suit brought before a local tribunal should be stayed or one, in the face of such an arbitration clause which would clearly fall within section 34 of the Arbitration Act. Under this section is not incumbent to stay proceedings but the Court has a discretion in the matter and the circumstances of the litigation Courts to stay the suit lodged by plaintiff. [pp. 252, 253].F.E.

P. L. D 1952 Lahore 253
Before Muhammad Jan, J
MALIK MUHAMMAD BASHIR —Petitioner
Versus
CROWN —Respondent
Criminal Miscellaneous Petition No. 36 of 1952
The power to admit to bail before arrest must, in the interests of justice, be exercisable by the High Court and the Courts of Session. The restrictions contained in the Full Bench Judgment Hidayatullah Khan v. Crown : PLD 1949 Lah. 21 appear to be in the nature of guidance for the regulation of the Court’s discretion in granting bail before arrest and were not intended to be rigidly adhered to in every case. [pp. 256, 257]A.
These restrictions are not to be found in any provision of the Criminal Procedure Code, and if enforced would, for all practical purposes, take away the power given to the High Court and the Court of Session. [p. 256]B.
The conflict of views on the question of bail before arrest can be avoided and the liberty of the subject can be safeguarded by couching the prayer for bail and the order of the Court in suitable words, such as that if the petitioner is arrested in pursuance of the report made against him he shall be immediately admitted to bail on furnishing security to the satisfaction of the arresting authority, who will take care that the amount of security demanded shall be fixed with due regard to the circumstances of the case and shall not be excessive. [p. 258]. C&D.

P. L. D 1952 Lahore 258
Before S.A. Rehman, Muhammad Jan and Muhammad Khurshid Zaman, J. J
THE CORPORATION OF THE CITY OF LAHORE.—Petitioner
Versus
MRS. FAHMIDA BEGUM —Respondent
The preponderating balance of authority is in favor of the proposition that special Tribunals created under circumstances analogous to those obtaining under the Punjab Urban Rent Restriction Act, VI of 1947, are not Courts and in any case are not Courts subordinate to the High Court. [p. 272]A.
An order passed by the Controller or the Appellants Authority under the Act is not revisable by the High Court.
The for first time the Act of 1947 created the two functionaries known as the Controller and appellate authority. The very fact that a departure was made from the old position existing in the 1941 Act, makes the intention of the legislature clear that the ordinary Court were not henceforth to take cognizance of the dispute envisaged by the Act, Under the 1947 Act, any person could be appointed a Controller and any officer or authority as the appellate authority by a notification to be issued by the Provincial Government. Is issuing such notification, the Provincial Government could not be said to be exercising legislative functions and could not, therefore, confer additional jurisdiction on subordinate Judges or District Judges by these notifications. Even though, therefore, all Subordinate Judges and District Judges have been invested with the relevant powers under he Act, the inference by no Controller does not appear to be armed with all the powers of a Civil Court under a Act and therefore, does not seem to be bound by all the provisions of the Code of Civil Procedure. Similar is the position with regard to the appellate authority. They can make such enquiry as they are hidebound by the rules contained in the Code of Civil Procedure The word Controller is used in the Act in contradistinction with the expression Court in sections 15, 16 and 17 of the Act, and orders of a Controller are to be executed by a Civil Court having jurisdiction in the area as if it were a decree of that court, under section 17. Only a limited principle of rejudication is embodied in section 14 of the Act. In the first instance, therefore the controller and the Appellate Authority do not appear to be intended to act as Courts, and even if it be assumed that for certain purposes they may be regarded as Courts, in view of the special provisions of the Act and the absence of any indication of a link with the High Court, the conclusion is irresistible that they are by no means Courts Subordinate to the High Court so as to attract its revisional jurisdiction. [pp. 237B, 274B].
The Controller under the Act appear to have certain specific powers of Civil Court and not all powers appertaining to such Court. For instance, a Controller has no power to issue an injunction or to appoint a receiver It is also clear that the Controller has been invested with a limited jurisdiction under he Act and he cannot try all kinds of suits as the Civil Court does. It may be conceded that the Controller exercises jurisdiction by reason of the sanction of the law and not by voluntary submission of the parties to a dispute. He is also concerned with the determination of what may be termed as justiciable issues and ht disputes coming up before him are of a civil nature. But these factors do not conclusively establish a tribunal to be a Court though their absence would clearly negative such a proposition. [p. 270]C.
The authority of the Decision Bench ruling P L D 1949 Lab, 30 appears to have been greatly shaken by the majority judgment in PLD 1949 Lah. 301 F B.
The Punjab Urban Rent Restriction Act (VI of 1947) merely crease new Tribunals for the adjudication of certain disputes between landlords and tenants and by its enactment the Governor cannot be said t have assumed to himself any of the powers vested n or exercisable by the High Court, nor can be said to have suspended in whole or in part, the operation of any provision of the constitution Act relating to High Court. [p. 274]E.

P. L. D 1952 Lahore 275
Before S.A. Rehman, Muhammad and M. A. Soofi. J. J
FATEH BEG and another.—Convicts —Appellants
Versus
CROWN —Respondent
Criminal Appeal No. 442 of 1951, decided on 18th March, 1952.
The evidence recorded by the committing Court cannot be used as evidence under section 288 Criminal Procedure be used as evidence under section 288 Criminal Procedure Code, at a sessions trial, unless the witness is confronted with his previous statement as required by section 145 of the Evidence Act. [p. 280]A.
The words in section 288 Criminal Procedure Code, “for all purposes subject to the provisions of the Indian Evidence Act, 1872” were added to that section by an amendment in 1923, Surely one object of treating the previous statement as evidence would be to contradict the statement of a witness made at the sessions trial and section 145 which is a part of the Evidence Act, should come into play, o the language of Evidence Act, should come into pay, on the language of section 288, Criminal Procedure Code. After the proper procedure has been followed and the Sessions Judge has in his discretion admitted the previous statement under section 288, Criminal Procedure Code as evidence at the trial, it may of course be treated as evidence in the case for all purposes. [p. 281]B.
As the proper procedure was not followed in the present case by the Sessions Judge, the previous depositions of the witness were not treated as evidence in the case. [p. 281]C.

P. L. D 1952 Lahore 282
Before Muhammad Jan and M. A. Soofi, J. J
CROWN —Appellants
Versus
MUHAMMAD RAZAQ —Accused –Respondent
Criminal Appeal No. 179 of 1951, decided on 5th February, 1952.
Where the Magistrate merely informed the police about the alleged loss of some property and concluded by saying that it might turn out to be a case of criminal misappropriation of property by some official , it cannot be held that the Magistrate was personally interested in the case or that he had after consideration of information furnished to him directed the prosecution of the accused and was, therefore, disqualified from trying the case as a Magistrate. [p. 288A, 288B].
Even it it could be said that the Magistrate had investigated the case extra-judicially before he gave the information to the police, it cannot be said that he had formed any opinion adverse to the accused or that he had directed his prosecution. [p. 290]D.
In an appeal from acquittal the orders of acquittal should not be lightly set-aside.
In deciding appeals from acquittals the High Court should and will always give proper weight and consideration to such matters as the vies of the trial Judge regarding the credibility of the witnesses, the presumption of innocence in favour of the accused, which is by no means weakened by his acquittal after trial, and the right of the accused to the benefit of any doubt arising in the case. [p. 290E, 290F].

P. L. D 1952 Lahore 290
Before S. A Rahman and M. A. Soofi, J. J
CROWN —Appellants
Versus
ABDUL MAJID and another—Accused –Respondent
Crown’s Appeal No. 502 of 1951, decided on 14th March, 1952.
Some forty-four bags of adulterated turmeric weighing about ninety five maunds were taken possession of from the premises of the girding mills of the accused. [p. 291]A.
The plea of the accused was that their only responsibility towards the turmeric was to grind it as millers and they had nothing to do with its eventual disposal. [p. 292]B.
Held, that clause (b) of subsection (1) of section 12 of the Punjab Pure Rood Act( VIII of 1929) is intended t apply to persons who manufacture a food and sell it themselves and not to persons who merely act as millers. [p. 292]C.

P. L. D 1952 Lahore 307
Before S. A Rahman and Soofi, J. J
MUHAMMAD BAKHSH AND 3 OTHRS —Defendants—Appellants
Versus
UMAR AND 3 OTHERS —Plaintiffs –Respondent
Second Appeal No. 175 of 1950, decided on 20th March, 1952.
Where mutations of certain dispositions of land made in 1893-96 did not state that the dispositions included the shares of the shamilat, and the mutations were got corrected after the death of the donor-vendor on the admission of his widows 1913-14 that the share of shamilat land was included in the original transactions:
Held, on second appeal in suit by reversioners that by virtue of section 3 of Punjab land Dispositions (Saving to Shamilat) Act, 1951 (IV of 1952) there was no transfer of shamilat rights in favour of the donor-vendor. The subsequent admission of the widow in 1914 on the point, could not avail the donee-vendees. The widow could not, as a limited owner pass better rights than what the law declares had passed under the previous transactions. [p. 311].
The plaintiffs as co-shares of the shamilat, which was still un-partitioned must be deemed to be in joint possession of it with the remaining members of the proprietary body. A mere entry in favour of the defendants in the revenue records to the effect that they were co-shares in the shamilat by virtue of certain gift and sale made in favour of their predecessor in interest could not affect the plaintiff’s rights in the shamilat till an attempt was actually made to oust them from the disputed property. [p. 312]B.
If the plaintiff is in possession or enjoyment of the property in suit, he is not obliged to sue for a declaration of title on the first or each succeeding denial of title by the defendant. He may look upon each denial with complacency or at his option, may institute a suit to falsify the assertions of the other side. But when he finds that his rights are being actually jeopardized by the action or assertion of the defendant, than he must take proceedings within six years. [p. 312]C.
So long as the shamilat remained u-partitioned, and there was a fresh assertion of the defendant-appellants within six years of the suit casting a cloud on the plaintiffs title, the latter’s suit could not be held not be barred by time. [p. 313]D.
An admission by a lawyer on a question of law or even on a mixed question of law and fact is not binding on his client. [p. 313]E.
Where the objection was not made explicit in any of the Courts below or in the grounds of appeal so that he plaintiffs had not opportunity to meet it the case was remanded to the trial Court under O. XLI. R. 27 C.P.C. to have necessary evidence recorded and a finding given by the trial Court as well as by the first appellate Court, for a proper adjudication of the dispute between the parties. [p. 313]F.

P. L. D 1952 Lahore 314
Before Kayani and Shabbir Ahmed, J. J
THE AUSTRALASIA BANK LTD—Defendants—Petitioners
Versus
MESSERS A. ISMAILJI & SONS and others —Plaintiffs –Respondent
The language of subsection (2) of section 69 leaves no room for doubt that if a suit falling within subsection (2) of section 69 of the Partnership Act is instituted by a firm which is not registered at the time of the institution of the suit, the plaint must be rejected and the subsequent registration of he firm cannot validate the proceedings which were invalid in their inception. [p. 330]A.
Courts are not makers but only interpreters of law and cannot water down the effect of a provision of a statute, because the interpretation based on well established principles is likely to work hardships in some cases falling within the plain meaning of that provision. [p. 330]B
It has been consistently Act is mandatory and makes a section 69 of he Partnership Act is mandatory and makes a suit instituted by an unregistered firm entirely invalid and that subsequent registration of the firm is of no avail [p. 327]C.

P. L. D 1952 Lahore 331
Before Muhammad Munir C. J
INYATULLAH KHAN MASHIRIQI—Petitioners
Versus
CROWN –Respondent
Criminal Miscellaneous Petition No. 242 of 1952, decided on 30th May, 1992.
The order of arrest under subsection (1) of section 3 of Punjab Public Safety Act (XVIII of 1949) recited that the Governor was satisfied that it had become necessary to arrest the petitioner in order to prevent him from acting in a manner prejudicial to the public safety and the maintenance of public order. On the principle of omnia praesumuntur rite esse acta and various authorities of the Privy Council and the Federal Court and numerous decisions of the High Courts it has to be presumed that the Governor believed that the petitioner had been engaged or was about to engage in activities which were prejudicial to public safety and the maintenance of public order and that the Governor was satisfied that it had become necessary to arrest and detain the petitioner with a view to preventing him from engaging himself in those activities. [p. 338]A
If reasons for the arrest existed and the arrest was ordered under he law, it is for the petitioner who attacks the order of detention to show that the detention was ordered n grounds other than those which have been proved in the evidence produced by the Government. [p. 340]B.
The real object of the petitioner in organizing a private army was to stage a coup ed etat, install himself in power and then invade India in order to acquire the several territories which at present are a part of the Indian Union. And if this was the manner in which these territories had to be acquired, public disorder was a necessary consequence f the scheme. The sending of literature to Muslims in India was also a part of the same plan, namely to create among the Muslims of India feelings of disloyalty against their State and to prepare them when war came between India and Pakistan to side with the invader. This could not, therefore, be described as an isolated or independent act having no reference t the scheme to create a private army which would overthrow Government of Pakistan. The activity therefore, fell within the scope of the Provincial Act. It cannot accordingly be held that if one of he reasons for the arrest of the Allama was his liaison with the Indian Muslims and his contemplated attack on India by installing himself in power in Pakistan with the aid of a private army, it did not come within the ambit of the Provincial Act and has to be seen in such cases is whether the arresting authority though that the act intended to be done constituted a threat to the safety and order of he Province, and in this case it cannot be said that the reason for the arrest was something which had no reference to public safety and the maintenance of public order. [p. 342]C.
The only point that requires consideration in relation to the order extending detention is whether the recital in that order that the Government was satisfied that it had become necessary to extend the period of detention with a view to preventing the detenu from acting in a manner prejudicial to the public safety and the maintenance of public order was true. The presumption is that it was a true recital and in view of the previous activities of the detenu Government could presume that since the main object of the detenu had always been to organize a private army and, having disbanded the Khaksar Movement, the resurrected the same organization in the name of the Islam League, he would, alter release, engage himself in the same activity. What the Court has to see in such cases is not whether the opinion was rightly formed but whether it was formed in fact and honestly. [p. 343].D.
Nevertheless unless a man is known incorrigible or the danger apprehended is so grave that it will be imprudent to take any chances, the Government would be well advised in avoiding an order of extension a view to affording the detenu a locus penitentiae.
Repeated orders of detention without giving to the man concerned an opportunity to desist from the his activities may in certain cases be taken to be vindictive, dishonest or punitive and not preventive. And where such view can fairly be taken, High Court will hold the order invalid and set detenu at liberty. [p. 344]E.
The presumption with which such acts of government are received in Court is bound for presume that though a man had been in incarceration for 18 months, Government still honestly believed that, if released, he would act in precisely the same manner as he did or intended to do when he was firs arrested. [pp. 344, 345]F.

P. L. D 1952 Lahore 345
Before Muhammad Munir C. J and Kayani J
NAWAB DIN —Convict—Appellate
Versus
CROWN –Respondent
Criminal Appeal No. 34 of 1952, decided on 20th May, 1992.
(Per Muhammad Munir, C. J. ) It is an unquestionable proposition of law that if a Court believed a confession, judicial or extra-judicial, retracted or not retracted, to be voluntary and true, it can convict the accused on its sole basis. At the same time Courts have always treated extra-judicial confessions as suspicious evidence and have emphasized the necessity of great care and caution in acting upon them to the absence of corroborative evidence. But during the last 100 years or so that the statutes of evidence have been in forces in this sub-continent it has never been ruled that a conviction based n an extra-judicial confession is an illegality or that the rule requiring corroboration of such a confession has the force of law. [p. 352]A.
When the relevancy of a confession has been established, the use to be made of it is not a matter of law but of prudence. [p. 352]B.
Where a confession is not vitiated by any of the circumstances mentioned in sections 24 to 26 and is thus a relevant fact, a conviction may be based on it provided the court that is called upon to consider the confession believes it to be true. [p. 351]C
So far as English Law and the provisions of the Indian Evidence Act are concerned, there is no legal impediment to convicting a man on his own confession, the making of which he denies at the trial but is proved by satisfactory evidence. The use to be made of a properly proved confession even if denied or not adhered to at the trial is not a matter of law but prudence. [p. 353]D.
The decision in Abdul latif’s case PLD 1952 F.c. 113 should not be taken as laying down the rule that where thee is no evidence in corroboration of a confession, the Court is not competent to convict.
The language used by the majority in Abdul Latif’s case has never been used either here or in England with reference to the extra-judicial confession of a prisoner. On the confessions that a conviction based on an uncorroborated confession is perfectly legal. I do not think the learned Judges of the Federal Court intended to take a different view and to lay down the rule that a conviction which merely proceeds n the incorporated confession of prisoner is illegal or that no Court should convict anyone on a confession unless it is corroborated in material particulars. [p. 357]F.
P. L. D 1952 Lahore 360
Before Muhammad Munir C. J and Muhammad Jan J
DISTRICT BOARD, MONTGOMERY —Appellants
Versus
ABDULLAH and others –Defendant—Respondent
Section 9 of the Northern India Ferries Act (XVII of 1878) is applicable to arrears due from the lessee of the tolls irrespective of whether the superintendence or management of the ferry vests in the District magistrate or in some other officer appointed by the Provincial Government or in the District Board.[p. 362].
Therefore, arrears of tolls recoverable from a lessee under the District Board can be recovered by the Magistrate of the District as if they were arrears of land revenue.

P. L. D 1952 Lahore 362
Before Muhammad Jan J
CROWN —Petitioner
Versus
UNKNOWN DEAF and DUMB –Accused —Respondent
Criminal Revision No. 95 of 1952, decided on 7th April, 1952.
Where from the observations made by the Magistrate that the accused a deaf-mute, could understand the nature of the act imputed that he pleaded not guilty and that, by making gestures he admitted his previous conviction, it appeared that the accused was capable of understanding the proceedings held against him, the case was returned by the High Court to the Magistrate concerned for passing a suitable sentence against the accuse. [p. 364].
I have today convicted an unknown deaf-mute under session 379/75 Pakistan. P.C. The name, parentage or other particulars o this deaf and dumb were not given in the challan and could not be ascertained by me. I also tried t find out if the accused had any friends or relatives who are accustomed to communicate with him in the ordinary affairs of life but without any success. The accused could not be made to understand the proceedings but nevertheless during trial I gathered that he had sufficient intelligence to understand the criminal character of his act. The conduct of the accused at the time of his arrest and during trial and keeping in view his previous history indicate that the possibility of some other clever persons utilizing this deaf-mute in the perpetration of crimes is not excluded.
After convincing the accused the proceedings have been stayed under section 341 Criminal Procedure Code. The proceedings and the above report may now the forwarded to the High Court under the said section to pass such orders thereon as it thinks fit.

P. L. D 1952 Lahore 364
Before Muhammad Khurshid zaman M.R. Khan Kayani, J.J.
HAFIZ MAHMUD SHAUKAT —-DEFENDANT—-APPELLANT
Versus
SH. ABDUL GHAFUR and others —Plaintiff —Defendants
First Appeal No. 50 of 1949, decided on 25th March, 1952.
In respect of works existing at the time of the passing of Copy right Act (III of 1914), the law is contained in section 24 of the Imperial copyright Act which provides that if any person is immediately before the commencement of the Act entitled to copyright under the old Act, he shall form the date of th present At be entitled to copyright as defined by the new Act and to no other right or interest and that this right shall subsist for the term for which is would have subsisted if the new Act had been in force at the date when the book was published. But if the author has, before the commencement or the Act, assigned the right for the whole term of the right, then at the date when, but for the passing of this Act, the right would have expired the substituted right conferred by this section shall, in the absence of express agreement, pass to the author of the work, and any interest therein created before the commencement of this Act and then subsisting shall determine. [p. 368].
Where, therefore, the plaintiffs assignees had a total aright of publication for forty-two years from 1899, the date of first publication, their right expired in 1941 and the copyright then passed to the author or his heirs. [p. 368]B.
By virtue of the second option provided by section 24, however, the assignees were entitled to continue to reproduce the work in like manner as heretofore. They were not entitled to question any infringement of copyright which had now passed to the another or his heirs.

P. L. D 1952 Lahore 369
Before Sabir Ahmed.J.
NASIM ANSARI and others —Accused –Petitioners.
Versus
CROWN —Respondents
Criminal Revision Petition No. 1 of 1952 decided on 27th March, 1952.
As the offence of dishonestly abstracting or consuming electric energy was created by section 39 of the Electricity Act, S. 50 of the act will have application to proceedings against the accused, and the prosecution of the accused must be instituted at the instance of one of the persons enumerated n section 50 of the Electricity Act.
The officer called the “S.D.O, P.W.D;” Electricity Branch” is in charge of the property of Government and responsible for a proper working in the area in his charge of the electric undertaking run by Government. [p. 371].
He is, therefore, a person “aggrieved” by theft of energy committed by the accused.

P. L. D 1952 Lahore 372
Before Kayani.J.
MUHAMMAD HUSSAIN and another–Plaintiffs.
Versus
INYAT ALI and others —Defendants—Respondents
Regular Second Appeal No. 73 of 1951 decided on 16th May, 1952.
If the plaintiffs wish to redeem the first two mortgages they must redeem them entirely and cannot ask for their own share only. They must pay the entire mortgage-money and if that is so, they must obtain the entire property under mortgage. [p. 374]A.
Even if the plaintiffs or their father had been a party to the third and the worth mortgages, they were not bound to redeem these mortgages and they could redeem only the first two mortgages separately unless there had been a clear “contract to the country.” [p. 374]B.

P. L. D 1952 Lahore 374
Before Muhammad Munir C. J. land Muhammad Jan ,J.
SHAMMUN (SHAMMAN)–Convict-appellant.
Versus
CROWN —Respondents
Regular Second Appeal No. 73 of 1951 decided on 16th May, 1952.
The confession of the accused was not put to him under section 342 of the Code of Criminal Procedure either when he was examined by the Committing Magistrate or when he was questioned at the trial after the close of the prosecution evidence.
Held, conviction of accused was unsustainable.
Case remanded for retrial from stage of examination of accused under section 342 Criminal P.C.
Nature and essentials of examination of accused under section 342 Criminal P.C. indicate.

P. L. D 1952 Lahore 376
Before Muhammad Khurshid Zaman and M.R. Kayani J.J.
PIR BAKHSH—Plaintiff —Appellant.
Versus
PIR BAHA UD DIN —DEFENDANT— Respondents
Regular Second Appeal No. 180 of 1950 decided on 26th March, 1952.
The necessary deposit under section 22(1) of the Pre-emption Act was made by the three pre-emptor-plaintiffs before striking of issues and the case went up to the evidence state when two of the plaintiffs entered into a compromise with the defendant and retired from the suit, withdrawing also their share of the deposit. The third plaintiff was ordered by the Court to make up the deficiency in deposit by a certain date, which he failed to do.
Held, that since, in the fist instance, a protect deposit had been made in compliance what the order of the court under subsection (1), there was no justification for rejecting the plaint under subsection (4). As for the question whether the suit could be dismissed as a whole, admittedly, the money was withdrawn b the two plaintiffs at a time when they were no longer plaintiffs an when the only plaintiff on the file was the fired one and since it was not withdrawn by the latter, it cannot be aid that the provision of subsection 5(a) which rests on a withdrawal by the plaintiff only was infringed; and if that was not infringed then the suit also cold not be dismissed. [p. 379]A.
If deposit is to be made, it should be required to be made before the settlement of suits. It would appear that no order made after that stage is binding on the plaintiff. [p. 379]B.
There was consequently no provision for any deposit to be made at the stage when the trial Court required the third plaintiff to make the deposit and no provision whatever for any deficiency to be made up. [p. 380]C.
The stage when the deposit is long past and the suit can proceed even without any deposit having been required and made. [p. 381]D.
One is not sure that the Court acted properly I allowing the firs two plaintiffs to withdraw their share of the deposit, assuming that he shares claimed by them were rightly claimed. They Court had in the first instance required all the three plaintiffs to make the deposit and it had been made in time. What share each of them had in the deposit was a matter among themselves and not a matter providing any scope for adjudicating by the Court. The third plaintiff in this case claimed the entire deposit to be his own but even if thee had been no such claim, once a deposit had been made for the purposes of the suite, it should not have been allowed to be withdrawn if there was a single plaintiff prosecuting the suit. [p. 380]E.
P. L. D 1952 Lahore 380
Before Rahman.J.
MST. IQBAL BEGUM—Plaintiff —Appellant.
Versus
MUNICIPAL COMMITTEE —through the Administrator Municipal Committee, Multan Defendant —Respondents
Regular Second Appeal No. 334 of 1950 decided on 24th April, 1952.
After the supersession order is passed, all property that previously vested in the Committee, vests in the Crown and the Administrator who is an officer appointed by Government, even if he is paid out of Municipal funds, should be regarded as one who is paid by the Crown during the period of supersession, within the meaning of item (h) of clause 17 of section 2, Civil P.c. His functions would, moreover, bring him within the purview of items (f) and (g) of clause (17) of section 2, civil P.C., inasmuch as he is an officer whose duty it is “to protect the public health, safety or convenience” and also to take, receive keep or expend any property” on behalf of the Crown. Ad administrator, therefore, would seem to be a “public officer” in the order of challenge his action, a condition precedent to the institution of the suit would be to give the notice prescribed by section 80, Civil P.C. [p. 384].

PLD 1952 Lahore 382
Before Muhammad Munir and Muhammad Jan.J.
CRWON —Appellant
Verses
SAADAT HASSAN MINTO —and two others –Accused Respondents
Crown’s Appeal No. 584 of 1950, decided on 8th April, 1952.
The online of the story may be perfectly innocuous yet the details, wherein some of the expressions used are extremely vulgar while others are crude metaphors having reference to the performance of the sexual act, may be obscene.
Morality and obscenity are comparative terms and what is obscene or immoral in one society may be considered to be quite decent and moral another. While considering the question whether certain words or representations are obscene or not, one has to apply standards that as current in the society in which those words have been uttered or representations made. In the present state of society in this country or anywhere else in the civilized world, there an be no doubts that a description of the acts preparatory to sexual intercourse, however graphic or lifelike that description may be, would be considered obscene. [p. 386]A.
One test of obscenity has always been whether the tendency of the matter charged is to deprave and corrupt those whose minds are open to immoral influences and into whose hands the offending publication may fall and the motive or intention in publishing the work does not prevent it from being obscene if the descriptions in it are in themselves obscene. [p. 387]B.
Where the objectionable passage was full of grossly indecent and sexual derails of a sexual episode and would undoubtedly suggest to minds of the young of either sex, and even to persons of more advanced years, thoughts of lewd and libidinous situations, the passage was held to be obscene. It was wholly immaterial what the intention of the author in writing the story was. [p. 387]C.

PLD 1952 Lahore 403
Before Shabir Ahmad.J.
FEDERAION OF PAKISTAN THROOUGH GENERRAL MANAGER, NORTH WESTERN RAILWAY, LAHORE. —Defendant —Appellant
Verses
FIRM MUHAMMAD SADID MUHAMMAD DIN (FIRM MUHAMMAD SAIDQ IMAN DIN SON OF IMAN DIN –Plaintiff —-Respondents
Second Appeal NO. 81 of 19501 decided on 30th April, 1952

In a suit contemplated by section 80 of the Code of Civil Procedure the defendant may either be Government or a public servant. As the General Manager North-Western Railway is a public servant and may in certain circumstances be sued for loss of goods while in transit on the North-Western Railway, the fact that the notice said that the General Manager would be sued dos make the notice defective. [p. 406]A.
A suit is incompetent if it imp leaded as a defendant, a person other than the one mentioned in the notice under section80 of the Code of Civil Procedure. [p. 407]B.

PLD 1952 Lahore 408
Before A.R. Kayani.J.
CHANAN SHAH —Defendant —Appellant
Verses
MUHAMMAD FAZIL — Respondent
Second Appeal No. 143 of 1951, decided on 17th April, 1952
An Awan proprietor of Attock District having sons has only restricted powers of alienation. [p. 411]A..
The very fact that the answer to question 47-B of the Rawaj-e-Aam makers a clear statement of custom in respect of proprietors without sons but says nothing about proprietors having sons, indicates that the distinction between the two cases was present to the mind of the complier. [p. 411]B.

PLD 1952 Lahore 411
Before Rahman.J.
HASSAN DIN — Plaintiff —Appellant
Verses
ABDU JABBAR –and others – Defendants —Respondent
Second Appeal No. 294 of 1950, decided on 24th April, 1952
The Municipal Corporation had made permanent arrangements for sale of Sullage water from their reservoirs to zamindars and it was sold to them if and when they applied in the normal curse, without much difficulty. Only a specified payment had to be made. In these circumstances, it could not be said that the source of he irrigation water was of a temporary character or so precarious that no right of easement could arise between the two appropriators situate on the extension of the channel leading from the Municipal reservoirs, inter se. The mere fact that in one particular year, the supply may be interrupted, would not affect the right of easement if one was established. The principle embodied in section 6 of the Easement Act would make that clear. The principles of the Act can be invoked as principles of justice, equity, and good conscience, even though the Act has not been applied to this Province. [pp. 414, 415]A.
The lands of the plaintiffs and defendants, besides being irrigated by sullage water, were also receiving water from two wells which still existed at time of suit. These apparently had gone out of use at some undefined point of time but it was not shown that they could not be requisitioned again for irrigation purposes. Indeed, one of the wells seemed to be in working order, according to the evidence. In these circumstances, it could not be said that but for the sullage water through the artificial channel claimed, there was no other means of irrigating the appellants land Clauses (e) of section 13 of the Easements Act, therefore, was not attracted to the case. [p. 416]B.
Water flowing through an artificial channel may give rise to an “apparent “ and “continuous” easement. [p. 417]C.

PLD 1952 Lahore 41
Before Shabbir Ahmed J.
ALI Convict—Appellant
Verses
CROWN ––Respondent
Criminal Appeal No. 566 of 1951, decided on 9th June, 1952
The prosecution brought on the record of the Court of Session for depositions made by medical witnesses who had irrespectively performed post-mortem examination on the dead body of the deceased and examined her injuries before her death. In the Court of Session the above- mentioned doctors were examined as witness, but only on points which were not clear from the depositions made by them in the Court of the committing Magistrate. [p. 419]A.
Held, that the depositions were not inadmissible.
If the intention of the Legislature were that a deposition of a medial witness taken in the Court of the committing Magistrate under Chapter XVIII of the Code of Criminal Procedure became inadmissible in evidence if the witness appeared in the Court of Session one would have expected the Legislature to make that clear by using the word “if” instead of “although” in subsection(1) of section 509 Criminal P.C. [p. 420].B.

PLD 1952 Lahore 421
Before Rahman and Muhammad Jan J J.
DURAB KHAN —Plaintiff –Appellant
Verses
MST. SABYANI—DEFENDANT —Respondent
Second Appeal No. 297of 1949, decided on 17th April, 1952
A Muhammadan husband transferred 1256 kanals 13 marlas of his land to his wife in lieu of dower. The amount of dower was not mentioned in respect of transfer made to the patwari, but a son of the transferor (then deceased )appeared before the Mutation Officer and stated that the dower amount3ed to Rs. 5,000 whereas, the market price of land as ascertained by a local Commissioner was Rs. 21,705. On the transfer being pre-empted.
Held that such a transfer may have some incident of a sale proper and, ther4efore, may be described as tantamount to a sale for certain purposes but according to the view consistently adopted so far as the Lahore High Court was concerned, such a transaction is not subject to aright of pre-emption has it involves an element of gift. Even the authorities cited on behalf of the pre-emptor leave the question, whether such a transaction should be regarded as sale or not to be decided on the facts of each case. In the present case the transfer by the husband in the favour of the wife was not intended to be a sale simplicities. The value of the property involved was considerably higher than the dower debt mentioned by the son of the deceased, before the Mutation Officer. An element of gift was involved in the case and the transaction was not a sale such as would attract the provisions of the Punjab Pre-emption Act (1 of 1913) [pp. 425, 426]A.
Per Muhammad Jan, J. — A transfer of property by a Muslim husband to his wife in consideration of the whole or a advantages of a sale without the disadvantages of behind pre-emptible. [p.426]B.

PLD 1952 Lahore 426
Before Sabir Ahmed J.
MST. ISHTIAQ BEGUM —Petitioner
Verses
MUHAMMAD SHARIF —Respondent
Civil Revision Petition No. 31 of 1952, decided on 13th August, 1952
At the time when the order sought to be revised was passed (31st of January 1952), it was, because of the state of the law then in force, a final order not open to question by any proceedings and the mere fact that at the time when the revision petition was instituted the law in force allowed such a petition cannot make the order open to questioning revision . [p. 428]A.
Statutes dealing with matters of procedures may be presumed to be retrospective, but those which tough rights must be expressed to be so if they are to have a retrospective operation. [p. 428]B.
On the 31st January, 1952 the respondent had obtained an order which was not assailable and as he had been vested with aright to what was given to him by that order the subsequent change in law if it is to deprive him of that right must be clearly expressed to be retrospective. [pp. 428, 429]C.

PLD 1952 Lahore 456
Before S.A. Rahman and M. R. Kiyani J J.
MIAN KAMAL DIN —Defendant –Appellant
Verses
MALIK MUHAMMAD BASHIR and others—DEFENDANT —Respondents
Letters Patent Appeal No. 20of 1950, decided on 20th December, 1951
Where the defendant had duly appeared before the Court but absented himself on a subsequent date to which the case had been postponed on account of the presiding officer being on leave o the date of the previous hearing, notice to appear on such subsequent date not having been served upon defendant, and a decree ex-parte was passed against him.
Held, that the defendant’s application preferred after his expiry of 30 days from the date of the ex-parte decree was time-barred.
The word “summons” used in Article 164, Limitations Act, refers to the first summons issued to the defender alter the institution of the suit.
Once a party receives intimation of an action, it is for him to pursue it and to keep himself in tough with the proceedings, either personally or through his counsel. [p. 460].

PLD 1952 Lahore 460
Before Muhammad Munir C.J and Muhammad Jan J.
MST AISHAN BIB —Plaintiff –Appellant
Verses
SAIN —DEFENDANT —Respondents
Letters Patent Appeal No. 19of 1950, decided on 28th April, 1952

If by reason of the wife’s conduct the husband was under no obligation to pay her maintenance, the former cannot make the alleged non-payment a ground for dissolution of her marriage under the Act. [p. 464]A.
The position that the Act is and was intended to be a complete consideration of the Muslim Law of the grounds on which dissolution may be obtained is incorrect. [p. 463] B.

PLD 1952 Lahore 465
Before. Rahman and M. A. Ssufi J J.
ABDUS SALAM –Appellant
Verses
MIAN MUHAMMAD SHARIF, ADVOCATE —Respondent
Letters Patent Appeal No. 13 of 1952, decided on 3rd June, 1952.

Subsection (2) of section 239, Companies Act, specifically provides that I the case of creditors, regard shall be had to the value of each creditor’s debt. In order, therefore, to determine the wishes of the creditors, it will not suffice to merely allow each creditor one vote. The amount due to each creditor will also have to be taken into consideration. [p. 468]A.
The rules framed by the High Court by virtue of powers conferred by section 246 of the Companies Act, further provides in rule 77 that a creditor or a contributory may vote either by person or by proxy. [p. 468]B.
Where claim against the Bank was transferred to another person long before creditors meeting was due to take place and the claim of the transferee was admitted by the liquidator the mere fact that in the books of the Bank, the transferee was not shown as a creditor in place of the transferor, the books of the Bank at the time being in Court, does not affect the question of the transferee’s competency to take part as creditor, in a creditor’s meeting. [p. 468]D.

PLD 1952 Lahore 470
Before. Kayani, J.
INDO PAKISTAN CORPORATION LTD—-Defendant –Appellant
Verses
SHER AFZAL KHAN —Plaintiff—Respondent
Civil Revision Petition No. 36 of 1952, decided on 9th June, 1952.
Under section 39 of the Sale of Goods Act, where in pursuance of a contract of sale the seller is authorized or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer, is prima facie deemed to be a delivery of the goods to the buyer. [p. 471]A
The cause for action arose out of the short supply of coal. That was, if true, an omission by the defendant which took place not at Burhan the destination but at Badami Bagh the place dispatch. This quantity of coal was t be dispatched from Badami Bagh and since under section 39 of the Sale of Goods Act the plaintiffs were to become owners at Badami Bagh, the breach of contract took place there.
The cause of action, therefore, arose at Badami Bagh in Lahore District and the suit in respect of shortage must be brought at Lahore. [p. 472]B.

PLD 1952 Lahore 472
Before Cronelus and Shabir Ahmad, J.J
CROWN –Appellant
Verses
BABU KHAN —Accused —Respondent
Appeal No. 693 1951, decided on 10th June, 1952.
An offence by public servant, falling under section 408, P. P. C which might also have been prosecuted under section 5 (1) (e) of the Prevention of Corruption Act (II of 1997) as an offence of criminal misconduct, does not require, for its prosecution, the sanction of any authority under section 6 of the latter Act. [p. 748]A.
Section 26 of General Clauses Act allowed the prosecution of the accused under either section 408, of the Pakistan Penal Code of section 5 of act 11 of 1947 as the act committed by him fell under both these sections. The prosecution was for the former offence which could be taken cognizance of without any previous sanction, and the trial of the accused for that offence would be without jurisdiction only if there was anything in section 26 of the General Clause Act to prevent his trial. [p. 474]B.
(Per Cornelius, J)— It is true that as a law of later enactment, as well as a special law, the Prevention of Corruption Act is sustainable of the interpretation that it supersedes the earlier general law, but there are expressions found in section 6 of the Prevention of Corruption Act, which go unmistakably to show that, in the particular sense which has been accepted by the learned Sessions Judge, there was no intention on the part of the Legislative to repeal the earlier general law. An important maxim of statutory interpretation is expressio unius est exclusion alterius, and in the present case the maxim is applicable on the consideration that, since section 5 of the new Act created a number of offences which could also fall under different provisions of the existing law, i.e. the Penal Code, if in laying down a procedural requirement, applicable both to the new offences as well as some for the old offences, the Legislature each of the old offences, but, only to certain of them which were expressly mentioned, the necessary conclusion must be that those of the old offences which were excluded must be deemed to have been excluded intentionally, so that the new requirements in respect of procedure would not be applicable to prosecution under the excluded sections of the existing law, which might also have been brought under one or other of the categories of criminal misconduct specified under one or other of the categories of criminal misconduct specified in section 5 of the new Act. Section 6, which lays down the requirements of sanction, expressly mentions only offences under sections 161 and 165 of the Penal Code from among what I have described as the “old offences”, as offences which will require for their prosecution, the sanction of competent authority under the new Act. [pp. 477, 478].C.

PLD 1952 Lahore 475
Before Cornelius and Shabbir Ahmed, J.J
ANJUMAN IMDAD KAFAIT SHUARI Defendant—Appellant
Verses
(CAPTAIN) NIAZ AHMED and others –Plaintiff —Respondents
Letters Patent Appeal No. 29 of 1950, decided on 1st July, 1952.
A co-operative society which has a claim for debt against a deceased member, must proceed for its recovery in the Civil Courts. [p. 481]A.
The words “members or past members of the Society or persons claiming through a member or past members” cannot have any reference except to living persons. [pp. 482, 483]b.

PLD 1952 Lahore 483
Before Cornelius and Shabbir Ahmed, J.J
PIRA and others —Defendants —Appellants
Verses
HAKIM and others –Defendant —Respondents
Letters Patent Appeal No. 56 of 1950, decided on 27th June, 1952.
Where thee was a simple assertion before the Revenues Officer in the partition proceedings of 1925-26, that the plaintiffs had no title in the land, and the order of the Revenue Officer declining to grant partition did not expressly or by implication convey any finding as to the strength of the rival claims, both parties being content, after the order of the Revenue Officer that possession should remain on the same footing as before and no overt act of any kind by the co-sharer in possession was suggested to have been performed after the order which would have the effect of casting a doubt o the plaintiffs claim of title;
Held that defendants had failed to have established adverse possession for any period. Possession of defendants never became adverse to plaintiff co-sharers.

PLD 1952 Lahore 489
Before S.A. Rahman and M. A. Sufi, J.J
MUHAMMAD AKRAM KHAN —Plaintiffs—Appellants
Verses
MST. KANIZ FATIMA BIBI and others –Defendant —Respondents
Second Appeal No. 272 of 1950, decided on 7th June, 1952.
Two pre-emptor instituted suites one after the other without each impleading his rival pre-emptor as party in case. One of them got a consent decree in his favour while the suit of the other was pending;
Held, that decree thus obtained was of no avail as against the other pre-emptor whose suit was pending, and that the latter, in the circumstances, was entitled to a decree for the whole of the property sought to be pre-empted. [p. 493].
It is a well recognized principle of the Pre-emption Law that in order to defeat the plaintiff-pre-emptor, the second sale must be in favour of another pre-emptor with a superior right in the bona fide express of that right, for his own benefit and not for the benefit other persons.
Where transfers were made to strangers while the suit of a pre-emptor was pending the transfers were hit by the rule of lis pendens.

PLD 1952 Lahore 495
Before Cornelius and Shabbir Ahmed, J.J
ABDUL HAFIF — and others —Plaintiffs—Appellants
Verses
SH. MUHAMMAD SAID and others –Defendant —Respondents
Second Appeal No. 124 of 1950, decided on 8th July, 1952.
The relief sought in a suit were:
1. A declaration that the suit property (certain shares in a Limited Society) is waqf.
2. A declaration that the alienation of 66 shares in favour of one Mst. Sakina Begum is void and ineffectual against the waqf property.
3. A declaration that the alienation in favour of one Mohan Lal is similarly void and ineffectual against the waqf property.
4. A declaration that the order of forfeiture of 198 shares by the Society is void, illegal and inefficient against the waqf property, and , by way of consequential relief, the issue of an injunction to the Society to cancel its resolution of forfeiture. [p. 497]A.
The basic declaration that the property is waqf has the effect of giving locus standi to the plaintiffs to call I question any alienations of the property which are contrary either to the law of waqf or to the general law. Such a declaration falls to be taxed under clause (iii) of Article 17 of the Schedule II to the Court-fees Act. The two declaration sought in respect of the alienations of 66 shares first to Mst. Sakina Begum and then by Mst. Sakina Begum to Mohas Lal, are not sought as consequential relies, in relation to the first declaration. They are claimed, and must be claimed, independently of the first declaration, except to the extent that the latter declaration, if granted, it will not follow as in matter of course that these alienations will be avoided, but certain facts will require t be established, I order to procure this result. Consequently, the effect of the alienation cannot b avoided unless a declaration of their illegality be first obtained.
Prima facie, it would seem sufficient to claim a declaration avoiding these alienations. It is not shown that any further relief can be, or ought t be claimed, in respect of these alienations. Subsequently to these alienations, the entire block of 198 shares was forfeited by the Society, and if the forfeiture is set aside, the Society can hardly fail to give effect, if effect be necessary, in any declaration obtained by the plaintiffs in respect of these intermediate alienations. Therefore, the relief by way of declaration in respect of these alienations is competent, and each such declaration falls to be taxed under the same head as the first declaration.
As the respects the forfeiture, the mode adopted by the plaintiff for stating their claim is firstly that they seek a declaration, and secondly that they ask for a consequential relief, namely, cancellation of the Society’s resolution directing the forfeiture. The declaration sought is necessary, i.e., as in the case of the alienations in favour of Mst. Sakina Begum and Mohan Lal, the mere fact of the property being waqf is not sufficient to avoid the forfeiture, but it will be necessary also for the plaintiffs to establish that the order of forfeiture is void by reason of failure to comply with the provisions of law applicable to the matter. The consequential relief also cannot be regarded as merely colorable or superfluous. Unless there be cancellation of the resolution, the mere declaration by the Court may not have the effect desired by the plaintiffs qua the proprietorship of the shares. This last relief would fall for purposes of taxation under section 7(iv) (c) of the Court fees Act. It will be for the plaintiffs to fix such value as they please upon this relief for purposes of taxation, and the same value shall be accepted for purposes of the separate court-fees assessed as indicated above. [pp. 500, 501]B.

PLD 1952 Lahore 502
Before Muhammad Munir, C.J and Rahman .J
LAL KHAN —Convict —Appellants
Verses
CROWN —Respondents
Criminal Appeal No. 46 1952, decided on18th July, 1952.
Per Rehman, J. — Where the facts established, prima facie make out a case justifying the conviction of a persons, of an offence, unless certain other facts are proved, brining the offence within one of the general or special exceptions of the Penal Code, the mere creation of a doubt on the part of the accused as to the existence or otherwise of those special circumstances asserted on his behalf would not suffice. In such a contingency, the necessary facts could be said to be neither proved nor disproved, and hence they would fall within the definition of not proved given in the Act. In view of the clear language of section 105, it would anomalous to hold that, although the exceptional circumstances were not proved, yet the accused was entitled to have e benefit of a doubt arising o the whole case. This would imply the contradictory finding that certain circumstances were not proved and yet their existence should in some sense be regarded as sufficiently probable to extend their benefit to the accused person. The test I such cases would be he probability or otherwise of the existence or otherwise of the relevant circumstance. Of course there may be cases in which the defence taken may cast a court on the existence of the requisite insertion or means real which proves a necessary ingredient of the offence. In such case it is conceivable that at the accused may succeed in securing an acquittal on the strength of a reasonable doubt created on that point. But when the circumstances of the defence pleas do not affect the ingredients of the offence established by the prosecution evidence e.g., where provisions are pleased, no such question can possibly arise and the accus3ed must prove his defence plea within the meaning of the Act.
The standard of proof required of an accused person may, however, not be the same as would rest ordinarily on the prosecution in all criminal cases. This is so, not because the Act provides for different standers of judgment in so many words, but because the proof is made to depend upon the subjective conviction of the prudent man. Such a conviction would be conditioned by the circumstances of each individual case. The standard of proof would, therefore, vary, but it could not be held that a fact must be held to proved although a doubt exists as to its existence or otherwise. Such a view be unsustainable having regard to the definitions of proved, disproved and not proved in the Act. [p. 514]B.
Per Muhammad Munr, C. J.— If the killing and the requisite intention or knowledge are proved or admitted, but the plea taken is that of insanity, the evidence in proof of the plea will not be directed against any ingredient of the offence of murder but will seek to establish that some other independent fact which is not a part of the offence of murder existed which made the act, which was prima facie murder, cease to be murder. It is this principle on which the English cases and the provisions of our Evidence Act can be reconciled and which appears to me to be a correct seduction from the general principle and the relevant provisions of the Evidence Act. That being the position, the Court will have to use in each particular case whether the doubt created by the evidence produced by the accused is confined to something special pleaded by him or whether the doubt also extends to a necessary ingredient of the offence charged… A prima facie proof of accident will be sufficient to entitle the accused to an acquittal on the charge of murder because ex hypothesis such prima facie evidence makes the evidence relating to intention and knowledge which is an ingredient of the offence of murder doubtful. This, however, is not the case where grave and sudden provocation or the right of private defence is relied on by the accused in order to show that what is otherwise murder is not so because of the existence of certain other facts which do not enter into the definition of the offence of murder. In the case of such exceptions, I am of the view that the applicability or otherwise of the exception will not be sufficient to discharge the onus that lies on the accused to prove that his effect of requiring the prosecution to disprove the exception, which is plainly opposed to the terms of section 105 of the Evidence Act. [p. 522]F.

P L D 1952 Lahore 523
Before Cornelius and Shabir Ahmad J .J
ALI —Plaintiff —Appellant
Verses
MST. ZAINAB BIB and others —Defendant—Respondents
Second Appeal No. 300 of 1950, decided on 27th July, 1952.
The plaintiffs in a declaratory suit under custom entered into a compromise with defendants. The operative part of the compromise as set out in the judgment of Court being;
“A decree for declaration is passed in favour of the planning against the defendants to the effect that the plaintiffs are the owners of the land in suit and will pay Rs. 526 to Hayat Muhamamd (defendant No. 1 in the writ) by the 1st of the December, 1936. If the above sum is not paid, the suit of the plaintiff will stand dismissed. In the former case the parties shall bear their own costs, but in the later case the plaintiffs shall pay the costs of the defendants. The plaintiffs shall be entitled to redeem the property which was mortgaged”.
The sum of Rs. 526 mentioned n the above compromise deed not having been paid by plaintiff their suit was dismissed.
Another reversioner then brought the usual declaratory suit without alleging fraud or collection by plaintiffs in the earlier suit. The question was whether the earlier suit operated as re judicata.
Held, that the compromise which was sought to be used as a bar to the subsequent suit could not be considered to have been entered into bona fide or in a representative capacity. [p. 528]C.

P L D 1952 Lahore 533
Before Rehman .J
M.J. MCGRATH—Plaintiff —Appellant
Verses
(MRS) M. K. MCGRATH —Defendant—Respondents
Second Appeal No. 15 of 1951, decided on 25th April, 1952.
Where the plaintiff accepted the costs awarded against the defendant, before the amended written statement was put in. [p. 537]A.
Held it does not lie in the plaintiffs mouth to turn round and say that he amendment was not in order. A party which has adopted an order of the Court and acts under it, cannot after enjoying benefit under the order, contend that it is valid for one purpose and invalid for another. [p. 537]B.
The plaintiff, husband described as an Irishman, admittedly had non-Asiatic domicile, and the defendant wife was said to be a Chaldean. There was not enough mentioned on file to justify application of doctrine of Benami;
Held, in respect of sums deposited by plaintiff husband in Bank in the name of wife, that as it had not been shown that residents of Ireland were not governed by the ruled of English common law, presumably the rules of English Law must be deemed to be the personal law of the plaintiff unless be established the contrary. [p. 538]D.
It was contended on behalf of defendant that the plaintiffs claim with regard to the National Savings Certificates should not have been decreed as that relief was not expressly asked for in the plaint. In order, however, to avoid multiplicity of litigation between parties, there was no harm in declaring that these certificates also represented a part of the account of Rs. 6,000 standing in the defendant’s name, which really belonged to the plaintiff. [p. 544]F

P L D 1952 Lahore 545
Before Cornelius .J
MST. NATHO—Plaintiff —Appellant
Verses
MST. HADAYAT BEGUM and others —Defendant—Respondents
Regular Second Appeal No. 2104 of 1945, decided on 13th April, 1947.
The conditions of a valid gift in Muhammadan Law are that there should be a declaration of gift by the donor an acceptance whether express or implied by the donee and delivery of possession of the subject of ht gift by the donor to the donee. The possession may be such possession as the subject of the gift suffice to meet the legal requirements. In the present case delivery of possession to the donee is recited in the deed itself. It seems to me difficult to avoid the conclusion that in the circumstances existing at the time, the daughter being them permanently resident with the mother, it was entirely unnecessary for the mother to depart from the gifted premises in order to secure the possession of the daughter, but, on the other hand, it was quite sufficient that it should be agreed betw3en them that whereas previously the mother was the owner of the premises and the daughter was living with her after the deed, the daughter was the owner and the mother was living with her.
A gift of a share in free-hold property in a large commercial town is valid from the moment of the gift even if the share be not divided off and delivered to the donee.

P L D 1952 Lahore 548
Before Rahman .J
BEHRAM KHAN—Defendant —Appellant
Verses
MST. AKHTAR BEGUM —Plaintiff —Respondent
Regular Second Appeal No. 232 of 1950, decided on 11th May, 1951.
In the absence of evidence to the contrary, a Muslim girl is presumed to have attained puberty at the age of 15. Of course, it is a question of fact in each case and a girl may reach the puberty stage even earlier. [p. 549]A
The nikah was performed by her stepbrother acting as her guardian, and this was her own case. Apparently no other nearer guardian was in existence. In these circumstances it is obvious that the marriage contracted y a guardian during her minority could be repudiated by her on attaining puberty. [p. 550]B.
The consummation that took place in the present case, having occurred before the girl attained puberty, did not destroy her right of option of puberty. She did nothing on attaining the age of majority to express approval of the marriage. Consequently, the exercise by her of her right of option must be upheld. [p. 55]C.

P L D 1952 Lahore 552
Before Kayani .J
MST. MAHBOOB JAN —Petitioner
Verses
SHER AFZAL —Respondent
Civil Revision No. 149 of 1950, decided on 19th February, 1951.
If the question of limitation has been decided wrongly, the effect of that decision would be that the Court assumes jurisdiction in a case which, according to law, should not be heard by him and that consequently the matter falls within section 115, Civil Procedure Code. [p. 553]B.
It seems doubtful whether the process-server actually made a statement on solemn affirmation. It cannot, therefore, be said serving officer, as required by rule 19 of Order V, Civil Procedure Code. [p. 554]C.
What is more remarkable I the summons, however, is the fact that it bears neither the signature f the presiding officer nor the seal of the Court. For this the Naib Sheriff has given no explanation, and the argument, therefore, that a blank form of summons was filled by the Naib Sheriff in conspiracy with the plaintiff’s father is not without force. Apart from the fact that this will strengthen the presumption against the genuineness of the summons, it is clear that any service effected by such a summons cannot be regarded as service within the contemplation of Order V, rules 1 and 10 for the Code of Civil Procedure. Under sub-rule (3) of rule 1 every such summons shall be signed by the Judge or such officer as he appoints, and shall be sealed with the seal for the Court”, while under rule 10” service of the summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in this behalf, and sealed with the seal for the Court”. It follows that service shall not be made if the copy which is tendered does not bear either the signature of the Judge or the seal of the Court. This conclusion should be obvious because it is possible for a black form of summons to be filled by any person if he can obtain it from a process-server or any other official of the Court (and this should not be difficult) and present it to a person against whom no suit may have instituted at all, with the object of putting him to harassment expense and inconvenience. [p.554]D.

P L D 1952 Lahore 555
Before Muhammad Munir, C.J, S.A. Rahman and Muhammad Jan J.J
BARKHURDAR SHAH and others Defendants. — Appellants
Verses
RAB NAWAZ SHAH, MST. SALIHON BIB and others—Respondents
Regular First Appeal No. 401 of 1945, decided on 29th June, 1952.
Declaratory decrees under custom made before the coming into force of Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), that a certain alienation made by a female with limited interest is not binding on reversioners, are not affected by section 3 or any other section of the Act.

P L D 1952 Lahore 560
Before Muhammad Sharif and Muhammad Jan J.J
CROWN. — Petitioner
Verses
SAIDU and another—Respondents
Criminal Miscellaneous No. 380 of 1949, decided on 29th November, 1949.
The confirmation by the High Court under section 376, Criminal P.C., would mean only this; that the death sentence awarded by the trial Court was, in the view of the High Court, an appropriate sentence and should be allowed to stand. In confirming the sentence of death, it is nowhere prescribed that the High Court should clearly state that the sentence was to be executed by hanging as prescribed in the Code. [y. 551]A.
The High Court has no special powers under Letters Patent to alter the judgment. The judgment, therefore, cannot be altered or reviewed. It is only where some “clerical error” is to be corrected, that it might be done. [p. 562]B.
It is also doubtful whether the correction which is required to be made would be a mere “clerical error”. It was not a mistake or slip made in the preparation or the copying of the judgment. So far as the judgment of the High Court is concerned. It was never the intention nor was it at all necessary that in dismissing the appeal and confirming the sentence of death the manner of the execution of the death sentence in accordance with section 368, Criminal P.C, should have been indicated. [p. 562]C.

P L D 1952 Lahore 563
Before Muhammad Sharif .J
YAR MUHAMMAD and another. — Appellant
Verses
GHULAM SARWAR and another—Respondents
Regular First Appeal No. 1 of 1950, decided on 17th February, 1950.
The plain meaning of subsection (4) of section 20 is that in the absence of “a sufficient cause “ the Court shall order the agreement to be filed and shall call upon the arbitrator, mentioned in the agreement of the parties or otherwise agreed to by them, to decide the dispute, and if the parties cannot agree, then the Court shall have a right to appoint another arbitrator. [p. 566, 567]A.
The omission or failure on the part of the arbitrator first appointed by te parties would not make the agreement wholly ineffectual, but the agreement could still be kept alive by the parties by agreement, and failing that, by the Court itself. [p. 567]B.
The other ground upon which the Court had refused the application was that the subject-matter of the dispute was of a technical nature and the intention of the parties appeared to be to accept the arbitration of only the persons mentioned in the agreement. There is nothing to suggest that arbitrators possessed any technical knowledge and were chosen for that reason. It is also doubtful whether the carrying out of measurements can be said to be a matter of a nature which could not be performed by any other person well-versed in the art of measurement. [p. 567]F.
The phrase “and to all proceedings there under” would attract the other sections of the Act to an application for filing the agreement in Court under section 20. This would make it possible to have recourse to sections 8 and 9 of the Act, the application of which shall not be confined to the proceedings after the agreement under section 20 has been ordered to be filed. [p. 567]C, D.
Under section 8, subsection (1), clause (b) of the Act, of 1940, it shall be presumed that it was intended that the vacancy should be supplied, and the burden to show otherwise shall rest on the person objecting to it. [p. 567]E.
The failure to observe the requirements of the First Schedule to the Act cannot be allowed to affect the validity of the agreement. The record does not show when were the arbitrators informed of their appointment, and the period of one month could commence only from the date of their knowledge and if they wanted to act. The period of four months referred to in para, 3 of the First Schedule could be reckoned only “after the entering on the reference or after having been called upon to act by notice in writing from any party to the arbitration agreement”. The arbitrators did not enter upon the reference nor was any notice served upon them, and the period specified in para 3, therefore, could not start. Te agreement under the new Act could not thus be rendered ineffective by not doing something within the period allowed. The Court had ample power to extend the period, if necessary. [p. 568]G.

P L D 1952 Lahore 568
SPECIAL BENCH
Before Muhammad Sharif, Muhammad Khaurshid Zaman and Kayani, J.J
IN THE MATTER OF “JARIDA-AL-ASLAH” (URDU WEEKLY), LAHORE AND PETITION OF ABDUL RAHMAN MALIK, PUBLISHER” JARIDA-AL-ISLAH” LAHORE— Petitioner
Verses
THE CROWN —Respondents
Criminal Original No. 22 of 1949, decided on 22nd March, 1950.
The objects of sedition generally are to induce discontent and insurrection, to stir up opposition to the Government and no bring the administration of Justice into contempt; and the very tendency of sanction is to incite the people to insurrection and rebellion. Sedition has been described s disloyalty n action, and the law considers as sedition all those practices which have for their object to excite discontent or disaffection to creates public disturbance, or to lead to civil war, to bring into hatred or contempt the sovereign or Government the laws or the constitution of the realm and generally all endeavors to promote public disorder. “Sedition” is, therefore, a crime against society as a whole. It all civilized countries and orderly Governments, the integrity and the preservation of the State is a matter of vital concern and is no sacred that no attempt at its disruption or weakening, directly or indirectly, will be countenanced. While criticism against persons charged with the duty of running the Sates tolerated and even encouraged to strengthen the State and to keep it free from all taint and corruption, no attack or tirade against the State itself is permitted. [p. 572]A.
There is a direct ad a serious attack upon the concept which created Pakistan. The very idea of establishing a separate Muslim homeland has been held up to ridicule. The “manifesto”, therefore tends to bring into contempt the State itself and not merely some of the persons, who may be running he State and whose short-comings may have been responsible for producing some unfavorable conditions in the country in respect of health and material welfare. The mere fact tht about the end an appeal is made to the voters to east their votes in favour of the nominees of the Islam League at he next election would not minimize or destroy the pernicious effects on popular mind of what had been described before. [p. 573]B.

L D 1952 Lahore 573
Before Muhammad Munir, C.J, Muhammad Sharif and Rahman, J.J
ALI MUHAMAMD KHADIM— Petitioner
Verses
THE CROWN —Petitioner
Criminal Original No.3 of 1950, decided on 15th May, 1950.
In order, however, to give the petitioners a change t know clearly the clauses relied upon the Government in support of their demand of security, the learned Advocate-General, who appeared for the Crown was required to specify the different passages to which exception was taken on behalf of the Government and the clauses which they were said to have infringed. This was done and it was not the plea of the petitioners that they were taken by surprise and were not in a position to continue with the case. This contention is, therefore, overruled. [p. 575]A.
The call Pakistan Government as “enemy of Islam” and to stigmatize it as “irreligious” and fostering a spirit of “indifference to God and the Prophet”, is to inflame popular mind and ignorant people in particular in revolt against the State itself. The state of society and the people to whom the words are addressed are relevant factors I making a correct estimate of the effect of the word spoken or written. The overwhelming majority residing within the Dominion of Pakistan consist of the Muslim strongly attached to their religion and to the worship of God and who cherish great veneration for their Prophet. To tell these person that the Government under which they are living, is the enemy of Islam or opposed to their relation or would inculcate indifference and disrespect of their God and Prophet, is the greatest incentive to throw up that Government and their insurrection would be an act of merit in the eye of God and the Prophet. This is directly preaching “disloyalty in action” and this is the gist of offence of “Sedition”. The argument of the leaned counsel for the petitioners that at the articles were no more than a legitimate criticism of the policies of the Government cannot stand scrutiny. There is nothing in law to prevent a person form attacking the Government for its shortcomings in one or other respects with a view to remove them or correct them. It is also not prohibited to call upon the people to elect their representatives from one or the other political party which promises greater chances of religious or economic advancement. The State, however, is sacred, transcending all political parties and the Government as a whole could not be brought into hatred or contempt without fear of disastrous consequences to all land sundry living in the State. The articles in question read as a whole tend to excite disaffection against the Government and as such the Government was justified in taking action under the Press Act. [p. 578]C.

P L D 1952 Lahore 578
Before Muhammad Munir,.J
REHMAT ASLAM — Petitioner
Verses
THE CROWN —Respondent
Criminal Miscellaneous No.87 of 1950, decided on 22nd May, 1950.
The order dated the 8th June, 1949, which was in force on 15th August 1949 was void, and if that order was void, then section 36 of the Punjab Public Safety At of 1949 was not applicable and no order under subsection (4) of section 3 of that Act could have been made by the Provincial Government. [p. 581]A.
It is impossible to contend that the Provincial Government and the power to extend the period of detention under subsection (4) in respect of persons who were not arrested by it or under its direction [p. 582]B.
I cannot hold that a person who was arrested under the Act of 1947 should even after the expiry of one month be deemed to have been arrested under the Act of 1949 or that a person who was arrested by a servant of the Crown I exercise of the powers delegated to him by the Provincial Government must be deemed to have been arrested by the Provincial Government itself. [p. 582]C.
It is cardinal rule of interpretation that statutes, which much upon the liberty of the subject, must be construed strictly and nothing should be deemed t fall within the terms of any such statute unless the words used are wide enough to cover it. [p. 582]D.

P L D 1952 Lahore 582
Before Muhammad Khurshi Zaman,.J
ALLAH DITTA — Plaintiff —Appellant
Verses
A.F. AHMAD & CO and another — Defendant —Respondent
Regular Second Appeal No. 123 of 1949, decided on 8th January, 1950.
From the point of view for the appellants, the fresh evidence, sought to be produced, is of great importance. But this circumstance alone is not sufficient, in my opinion, to entitle the appellants to ask me to exercise my powers under Order 41 rule 27 (b), Civil P.C. in their favour. The document was all along within the knowledge of the plaintiffs and they had ample opportunity t produce it at the proper stage. As already observed, no explanation has been offered for not producing it at that state, although the suit remained pending for nearly two years. It is, therefore obvious that the plaintiffs and their counsel betrayed gross lack of diligence in conducting the suit.

P L D 1952 Lahore 600
Before Muhammad Sharif and Shabir Ahmad J,.J
KHUSHI MUHAMMAD —Appellant
Verses
MULA SINGH and others — Respondents
Regular Second Appeal No. 1389 of 1946, decided on 5th May, 1950.
If a mortgagor leaves some mortgage amount with the mortgagee for payment to a third party the mortgagor cannot be considered to be a creditor of the mortgagee for that amount and the mortgagee cannot be compelled in make payment as it is no more than an agreement to lend money and of such agreement no specific performance can be claimed. It is settled law that if a mortgagee who keep a part of the mortgage amount for amount he cannot be compelled to make payment though he may be liable for damages and the mortgage already entered into will hold good only for the amount actually paid by the mortgagee. [p. 606]B.
The money was not a debt due to the mortgagors jointly or to one more of them and could not, therefore, have been attached in execution of a decree against all or any of them. The attachment being unwarranted the subsequent payment, if any, cannot be deemed to be valid and binding on the mortgagors. There is also another way of looking at the matter. The money was left with the mortgagee by the mortgagors for a specific purpose and if the mortgagee wants to make the mortgagors or their property liable for that money without paying it to them he must prove that he had carried out the directions of the mortgagors contained in the mortgage deed dated 14th March, 1933. [p. 608]C.

P L D 1952 Lahore 624
Before Muhammad Sharif,.J
ABDUL GHAFOOR —Petitioners
Verses
THE CROWN — Respondents
Criminal Miscellaneous No. 654 of 1948, decided on 12th April, 1949.
Where for the specified purposes, the official act is performed by a person so authorized in full and strict compliance with the conditions laid down in he law, and the record shows that he was “satisfied” a presumption shall arise in favour of its legality and the onus would shift to the citizen to prove the contrary. The expression “satisfied” means the “satisfaction” of the officer concerned as he alone is in possession or knowledge of he material to which others have no access. His “satisfaction” means nothing more nor less than his “own satisfaction” and the Courts cannot hold an inquisition into his reasonableness or otherwise but the “satisfaction” must be real had not sham bona fide and not actuated by males, a fact and not a pretext and this can properly be determined from all the facts and circumstances of the case. Where the factum of “satisfaction” is not established, It is not only the right but the duty of the court to protect the citizen against the excesses of the executive and restore his liberty. [p. 631]C.
Where a valid piece of legislation empowers an executive officer to curtail or take away the liberty of a citizen on his being satisfied that which an action was necessary I the interests of public safety or public order the Courts would not enquire into the policy or reason of the legislation as that is a matter for the law-makers and these are concerned only with its meaning and interpretation.

P L D 1952 Lahore 632
Before Muhammad Jan,.J
J.A. HUMPHREY (Convict)—Petitioner
Verses
THE CROWN — Respondents
Criminal Revision No. 739 of 1951, decided on 30th April, 1952.
The general rule contained in section 106, Evidence Act, cannot be applied indiscriminately to criminal cases. It does not effect the onus of proving the guilt of an accused person which always rests on the prosecution; nor does it cast any burden on an accused person to prove that no crime was committed by proving facts specially within his knowledge. Section 106, Evidence Act does not warrant the conclusion that anything is unexplained which the Court thinks the accused could have explained he ought to be found guilty. [p. 634]A.
It is only after prosecution have made out a prima facie case against the accused and he pleads that, I view of the circumstances alleged by him and denied by the prosecution, he has not been guilty of any offence that he may be justifiably called upon to show that those circumstances exist. But where the prosecution have not made out any case against the accused, he is under no obligation to prove that he is innocent. [p. 634]B.
That onus rests on the prosecution and is not shifted to the accused by reason of that section. It is not sufficient for this prosecute to establish facts which only give rise to a suspicion throw the onus the accused to establish his innocence. [pp. 634, 635]C.

P L D 1952 Lahore 636
Before Rahman,.J
ANJUMAN IMDAD BAHMI QARZA, CHAK No 130-R.B., DISTRICT LYALLPUR, through Ata Ullah, Liquidator—Appellant
Verses
NASRULLAH KHAN and others — Respondents
Execution first Appeal No. 13 of 1951, decided on 5th May, 1952.
Under section 42 of the Act, a liquidator appointment under subsection (1), has the power inter alia to determine the contribution to be made by the members and past members of the society respectively, to the assets of the society. The omission of the word “deceased member” in this connection is significant. This is the only section which gives a liquidator power to make a contribution order. It follows therefore, that the power of the liquidator I this connection is confined to the two classes of members mentioned in the section and does not extend to the caseof deceased member. [p. 638]A.
A deceased member, consequently, would be one who is dead at the material time. If he dies before an order for contribution can be passed, he must be described as a deceased member at the time of he proposed order and the jurisdiction of the liquidator to pass such an order would vanish. There is no warrant in the language of the Act for confining the definition of “deceased member’ to those persons who had died before the start of the liquidation proceedings. The assumption that once the liquidator is vested with jurisdiction, be cannot be divested by any subsequent contingency, appear to me t be fallacious. [p. 638]B.

P L D 1952 Lahore 639
Before Cornelius,.J
JALIL JAVED ANJUMAN IMDAD BAHMI QARZA, CHAK No 130-R.B., DISTRICT LYALLPUR, through Ata Ullah, Liquidatorand another —Petitioners Appellant
Verses
SHEIKH MUHAMMAD SHARIF NASRULLAH KHAN and others — Respondents
Criminal Revision Petition No. 365Execution first Appeal No. 13 of 19512, decided on 85th SeptemberMay, 1952.
Where the dispute between the parties clearly relates to the right of control and management over the institution and the dispute only concerns “land” i.e. the building in which the institution was housed at he time of the filing of the petition, in an incidental sense. [p. 640]A.
Held that there is between the parties no dispute which affects “land” in the sense contemplated by section 145 Criminal P.C. [p. 640]B.

P L D 1952 Lahore 645
Before Cornelius,.J
SARDAR KHAN —Petitioner
Verses
CROWN — Respondent
Criminal Revision Petition No. 326 of 1952, decided on 18th September, 1952.
Court should regulate the imposition of penalty in cases of default from the point of view, not so much of assessing the “guilt” of the sureties in terms of money, but with the objects of maintaining the system of its integrity. In other words, if leniency towards sureties became the genera rule, the whole system of release of accused persons on bail might require to be re-examined to ensure the proper process f criminal cases. At the same time, it is obviously not necessary or desirable in the average case, that the Court should lean in the direction of severity, for this might lead to difficulties in production of sureties, having the effect of overcrowding the judicial lock-ups and other attendant inconvenience.

P L D 1952 Lahore 648
Before Cornelius, .J
ABDUL LATIF –Convict -Petitioner
Verses
CROWN — Respondent
Criminal Revision Petition No. 41 of 1952, decided on 15th July, 1952.
There may be circumstances establishing that when an accused person has received money, if he fails to account for it, it can only be that he has misappropriated or converted it to his own use, and the absence of direct evidence of misappropriation or conversion, which in many cases would not be easy to obtain may in such a case, be made good by the presumption out of the circumstances aforesaid, But in a case where no evidence of misappropriation or conversion is available and the accused per son was under obligation, in relation into the money I question, to deal with it in a particular way, the Court cannot reach any conclusion to the effect that he accused did not fulfill this obligation upon mere presumption, and it would be the duty of the prosecution to establish, by such evidence as may be available, that in fact the accused was guilty of contravening his duty in respect f the particular sum in question. [pp. 650, 651]A.
Where the accused impliedly admitted his liability to pay by asking for time in which to make good the deficit, which time was extended on several occasions at his request, but he failed eventually to make up the loss and the case was reported to the police. [p. 651]B.
Held, that the accused was not proved to have admitted any element of the offence of criminal breach of trust. [p. 651]C.
Much more is required then a mere acceptance of civil liability to make good an apparent loss or money, for holding that loss is the result of breach of trust by the person that the admission, in the sense of section 409 Pakistan P.C. [p. 651]D.
Where in respect f a prosecution of a public servant under section 409 of Pakistan Pc. It was contended on behalf of the accused that so far as public servants are concerned, the provisions of section 409 Pakistan P.c. have been repealed by those of section 5 of the Act of 1947, so that if it is must be for criminal misconduct under the Act of 1947 and for no other offence. [p. 653]E.
Held that the prosecution of the accused under section 409 was in accordance with law and was not barred by anything contained in the Prevention of Corruption Act of 1947. [p.m656]F.
Section 26 of General Clauses Act (X of 1897) operates no obviate altogether any implied repeal of one penal law by another. The section does not equal only with the matter of punishment; it provides also that the person offending may be prosecuted under any or all the relevant enactments. [p. 653]G.
The rule contained in section 26 applies even where the subsequent enactment which may be brought into play for punishing the offender, provided a special procedure governing the trial for such an offence. [p. 653]G,

P L D 1952 Lahore 657
Before Kayani, .J
HIDAYAT ALI–Convict -Petitioner
Verses
CROWN — Respondent
Criminal Appeal No. 276, 277, 278 of 1952, decided on 6th October, 1952.
The accused a public servant was alleged so have committed in one year the offences of cheating by personating, cheating and forgery under section 419, 420, 468, P.P.C in respect of each of 1 amounts of money and was proceeded against in three trials made up respectively of 4, 3 and 3 amounts.
Held, the trials were no in order:
The three offences relating to each of the ten amounts could be tried together as arising out of the same transactions, but there should be ten separate trials. [p. 660]A.
Section 222(2) does not say that the charge framed in its terms shall be deemed to be a charge of one offence within the meaning of any other section, than section 234 , section 235 for instance. Section 234 enables the joint trial of three offences of the same kind committed within the space of twelve mounts. Reading this with section 222 the meaning should be that it three offences consolidated in the manner suggested by section 222 have been committed within twelve mounts, they can be tried together under section 234. The general rule stated in section 233 is that for every distinct offence there shall be a separate charge. The exceptions are stated in force, a case does not clearly fall within the exceptions, the general rule must be followed. [pp. 659, 660]B.

P L D 1952 Lahore 660
Before Cornelius, .J
MUHAMMAD DIN –and another -Petitioners
Verses
CROWN — Respondent
Criminal Revision Petition No. 243 of 1952, decided on 26th September, 1952.
An order forfeiting a surety bond is clearly a judicial order under the Act, and must be made strictly in accordance with the procedure laid down. In my view, the provisions of the Goondas Act on the point of the forfeiture of surety bonds, when right construed in relation to the other provisions of the Act, require that another of forfeitures should be made by both members of the Tribunal. Therefore, the order in the present case which is made by only one member of the Tribunal is ultra vires and this defect is not cured by any subsection of proceedings in the case. [p. 664]A.
If any action of a judicial kind is taken which is in effect adverse to the liberty or even to the interests of any person involved in the proceedings, that act must be performed in precise accordance with the procedure laid down in the statute and if there has been any departure from such procedure, such departure is fatal to the validity of the act, which thereby becomes void. [p. 664]B.
While undue leniency towards sureties might, on the one hand, lead to use of the procedure under which bail is allowed to under trial accused persons, too great soverity towards sureties might have the effect of restricting the grant of bail and thus minimizing the advantages of the system and , to some extent, perhaps even denying to accused persons the rights allowed to them by law, on account of difficulty in procuring sureties. [p. 665]C.

P L D 1952 Baghdad-ul-Jadid 1
Before Abdul Aziz C .J
ABDUL AZIZ— -Petitioner
Verses
ABDULLAH and others— Respondents
Civil Revision No. 9 of 1951, decided on 3rd November, 1951.
The defendant had mainly relief on the deed of gift. He failed to produce that document at the earliest opportunity before the Court and when I was produced on day of evidence it was rejected.
The admission or the rejection of the deed of gift in the present case was a substantial question of law as it goes to the root of the case of the defendant.
If that document is not allowed to go o the file the defendant’s case stands decided against him as a matter of course. Decision of this point therefore was a substantial question of law and consequently this decision amounted to a case decided. [pp. 2,3].

P L D 1952 Baghdad-ul-Jadid 4
Before Abdul Aziz C .J and S. Mehmood Khan, J
AZIM
Verses
CROWN
Civil Appeal No. 45 of 1951, decided on 31st October, 1951.
The accused were tried by the Sessions Judge in two separate cases, in one case for causing the death of one F while in the other for causing the death of one J on the same day. Though the trials were held separate yet the Sessions Judge disposed of the two case by a single judgment. [p.5].
Held, whenever there are two distinct trials the judgment should be separate in each trial. It however this is not done, it is only an irregularity under section 537 of the Criminal Procedure Code provided the action of the Judge had not been caused any injustice to the accuse. [P.7].

P L D 1952 Baghdad-ul-Jadid 8
Before Abdul Aziz C .J and S. Mehmood Khan, J
SAID MUHAMMAD —Appellant
Verses
GOMA, etc. —-Respondents
Civil Appeal No. 5 of 1951, decided on 14th August, 1951.
The existence of sufficient cause for not filing the proceeding in time is merely a condition that must be satisfied before the Court exercises its power of granting or refusing to grant the extension of time. If the condition is not satisfied, there is no room for the applicability of the power to excuse delay. Thus, where no cause has, at all, been shown, that is, where no explanation has been given for filing the proceeding out of time, there arises no opportunity of considering the sufficiency of otherwise of the reasons for that fact, and there cannot be any room for the exercise of the discretion given by the section. If the condition is satisfied then the Court gets a discretionary power to grant or refuse the prayer for extension of time. It may in its discretion refuse to extend the time even though there may be sufficient cause for the delay. The extension of time is thus a matter of concession or indulgence to the applicant and cannot be claimed by him as matter of absolute right. [p. 10].
Whenever discretion is to be exercised it should be exercised in a judicial and not an arbitrary manner and considerable care should be exercised in determining the question of “sufficient cause “ which is always a question of fact in each a case. Thus a sufficient cause can properly be said t be a cause which is beyond the control of the party involving the aid of the section. A cause for delay which by due care and attention, the party could have avoided cannot be a “sufficient cause”. The test, therefore, whether or nor a cause is sufficient to see whether it could have been avoided by the party by the exercise of due and attention other words, whether it is a bona fide cause, in as much as nothing shall be deemed to be done bona fide or in a good faith which is not done with due care and attention. [pp. 10, 11].
Filing of an appeal in a wrong Court through gross carelessness of the counsel is not a “sufficient cause” for presenting the appeal to the proper Court after the expiry of the period of limitation. [p. 13].
But where there has been a bona fide mistake, not through misconduct or through negligence nor through want of reasonable skill, but such as a skilled person might make, the client is entitled to indulgence. [p. 13].

P L D 1952 Baghdad-ul-Jadid 14
Before Abdul Aziz C .J
CROWN
Verses
MISRI and others
Dated 10th September 1951, decided on 4th September, 1951.
Section 213 of the Cr.P.C. imperatively lays down that the Magistrate shall record “briefly the reason for such commitment”.
A Magistrate in his grounds of commitment should specifically note the exactness and precision the proof against each particular prisoner and the manner in which it is supported. Failure of Magistrate to give reason for committal in a case which he could deal with may amount to an illegality and the High Court may set aside the commitment. [p. 15].

P L D 1952 Baghdad-ul-Jadid 17
Before Abdul Hameed Malik .J
WAHID BAKHSH —Petitioner
Verses
ABDULLAH SHAL —Respondent
Civil Revision No. 2 of 1951, decided on 18th December, 1951.
It is no doubt open to the appellate Court to remand the suit for fresh disposal under the inherent powers but the inherent powers should not be exercised in a arbitrary and capricious manner. Where there was nothing on the record to show that the evidence was insufficient to enable the appellate Court to decide all the issues itself, the High Court directed restoration of appeal to the file of the appellate Court and disposal of same according to law. P L D 1952 Baghdad-ul-Jadid

P L D 1952 Baghdad-ul-Jadid 19
Before Abdul Aziz, C .J
ABDUL SAMAD
Verses
JAN MUHAMMAD
Revision Petition No. 21 of 1951, decided on 5th January, 1952.
If the defendant refuses to sign the acknowledgement it is not sufficient to throw a copy of the summons to him. The copy must be affixed on the outer door of the house..
The service by throwing a copy summons was manifestly defective, and the trial Judge should not have proceeded to pass an ex-parte decree.

P L D 1952 Baghdad-ul-Jadid 20
Before Abdul Aziz, C .J
GHULAM RASOOL and others
Verses
CROWN
Criminal Revision against Order of Sessions Judge, Bahawalpur, dated 2nd October, 1951.
It is true that ordinarily the concurrent findings of the Courts below on a question of fact should be accepted but where the High Court finds that the findings is not arrived at by correct appreciation of the evidence and any of the Courts below had misdirected itself then the High Court is competent to interfere if it comes to a different conclusion. [p. 21].

P L D 1952 Baghdad-ul-Jadid 22
Before Abdul Aziz, C .J
Mst. Abdul Aziz C. J
Verses
ALLAH DIWAYA and others
Civil Appeal No. 17 of 1952, decided on 10th February, 1952.
There was voluminous documentary evidence on the file of the trial Court which was neither admitted nor proved nor tendered in-evidence nor was it exhibited. [p. 23].
Held, that as the documentary evidence which was necessary for the disposal of the suit was not brought on the file in accordance with law because it was neither legally evidence is ignored then thee can b no decision of the dispute between the parties, there was not alternative but to remand the case for retrial, with the direction that the Court would not re-examine the witnesses but will only follow the provisions of Order XIII rule 4 to bring the documentary evidence on the file in accordance with law and then to re-write the judgment. [p.24].

P L D 1952 Baghdad-ul-Jadid 25
Before Abdul Aziz, C .J
Mst. RABAL
Verses
DODA
Civil Appeal No. 22 of 1951, decided on 20th January, 1952.
Where the procedure prescribed by Bahawalpur Notification No. 39, dated 1st June, 1943, amending section 2(2) of Dissolution of Muslim Marriages Act, (VIII of 1939) was not observed and the husband was not given a period of time during he pendency of the wife’s suit for dissolution on the ground of neglect to maintain, to change his attitude, the case was remanded for carrying out the requirements of the law.

P L D 1952 Baghdad-ul-Jadid 26
Before Abdul Aziz, C .J
CROWN
Verses
HAZOORI
Criminal Revision and Appeal No. 35 and 37 of 1951, decided on 6th February, 1952.
Even if the High Court comes to a different conclusion the principle of law is that the other of acquittal should not be interfered with unless it is proved that the Judgment of the trial Court was manifestly wrong. [p. 30]A.

P L D 1952 Baghdad-ul-Jadid 30
Before Abdul Aziz, C .J and Abul Hameed. J
HAJI SARDAR ALI —Appellant
Verses
GHULAM MUHAMMAD and others —Respondents.

Civil Appeal No. 13 of 1951, decided on 28th January, 1952.
The parties had referred in explicit terms to the arbitrators one and one issue only, while in the case there were two important issues. The first issue which was also an important issue in the case was not referred to the arbitrators an consequently it was the duty of the Court to give its decision regarding that issue on the material placed before it by the parties. As this was not done the judgment and the decree of the Court below were set aside, the case remanded for fresh decision after giving its findings on issue No. 1. [pp. 33, 34]A.
The appeal was competent because only a part of case was referred to arbitration land the case did not fall within ambit of section 17, Arbitration Act.

P L D 1952 Baghdad-ul-Jadid 34
Before Abdul Aziz, C .J
GUL MUHAMMAD
Verses
CROWN
Criminal Revision Petition No. 28 of 1952, decided on 11th March, 1952.
Where the judgment of the Sessions Judge had not touched the evidence and had not taken into consideration the grounds of appeal it could in no manner be a judgment which would help the Court of revision to decide a revision summarily. [p. 35[.
The judgment was set aside and the case was sent back for determination of appeal according to law.

P L D 1952 Baghdad-ul-Jadid 36
Before Abdul Aziz, C .J
MUHAMMAD DIN
Verses
CROWN
Revision Petition No. 31 of 1952, decided on 9th March, 1952.
One of two accused appealed to the Court of Session land was acquitted. The other then preferred a revision in High Court;
Held that the revision was not entrtainable by reason of subsection (5) of section 439 Cr.P.C.

P L D 1952 Baghdad-ul-Jadid 37
Before Abdul Aziz, C .J
ALI BAKHSH
Verses
WASOO, etc.
Second Appeal No. 16 of 1951, decided on 8th March, 1952.
Where no question of law was involved, and the lower appellate Court confirmed the decree on consideration of the evidence of two witnesses:
Held that if the lower appellate Court considered that the evidence of the two witnesses was reliable and could support his conclusion and of the Court of first instance then in deciding the appeal he was committing no illegality, and that further appeal under section100 Civil P.C. was not competent.

P L D 1952 Baghdad-ul-Jadid 38
Before Abdul Aziz, C .J
PATHANA
Verses
MRS. KHANDAL
Revision Petition No. 9 of 1952, decided on 26th February, 1952.
Rule 1 of Order 20 Civil P.C. lays down “The Court after the case has been heard, shall pronounce judgment to open Court, either at once or on some future day, of which due notice shall be given to the parties or their Pleaders. The word future ay means reasonably future day and not an unreasonably future day. [p. 39]A.
Held that it was tantamount to deliver a judgment without hearing the parties. It is settled law that no valid judgment can be given without hearing the parties. A Judgment delivered five months after hearing arguments was no judgment in the eyed of law. [p. 40]B.
The Judgment not being in accordance with law was set aside and the lower appellate Court directed to call upon the parties to re-argue the case before him and then to decide it immediately after hearing the arguments or within a fortnight at the utmost. [p. 40]C.

P L D 1952 Baghdad-ul-Jadid 41
Before Abdul Hameed Malik, C .J
SHEIKH ABDUR REHMAN
Verses
COLLECTOR OF STAMPS
Civil Revision Petition No. 2 of 1952, decided on 1st April, 1952.
The document showed that it was intended to be an agreement. The word “Agreement” occurred in two placed in the document further showed that the parties contemplated to perfect the title by executing a registered deed of conveyance. [p. 43]A.
Held, that the document was an agreement falling under Act. 5 of Schedule 1 of Stamp Act. [p. 43]B.
The mere fact that a document acknowledges that a right is vested in a particular person is not a conveyance. Further-more mere mention of the fact that possession of land had been given to the applicant does not being the document within the definition of conveyance. [p. 42]C.

P L D 1952 Baghdad-ul-Jadid 43
Before Abdul Rashid and Abdul Hameed Malik, J .J
MIRZA HABIB ULLAH
Verses
MAHMOODA BEGUM
Civil Appeal No. 28 of 1951, decided on 13th February, 1952.
The act of the Advocate in filing appeal in the Court of the District Judge instead of in the High Court cannot be regarded as bona fide and honest or excusable mistake on this part, as he did not act with due care and attention and did not take he trouble to consider whether the value of the suit or the decretal amount determined the jurisdiction of the forum of appeal. Such a mistake of counsel amounts to gross negligence on his part and does not entitle him to the indulgence of extension of time under section 5 Limitation Act. [p. 45].

P L D 1952 Baghdad-ul-Jadid 46
Before Abdul Rashid, J.
MST. SLAM KHATOON
Verses
NABI BAKHSH
Civil Appeal No. 22 of 1951, decided on 11th February, 1952.
Abdul Rashid, J— This is a revision application against the order of Sub-Judge Allabad, rejecting the application of Alam Khatoon plaintiff-petitioner for leave to amend her plaint. Alam Khatoon filed a suit on 14th January 1951 for dissolution of her marriage, against her husband Nabi Bakhsh, on the ground of his cruel treatment towards her. Subsequently, on the framing of the issues she made an application on 21st August, 1951 for leave to amend her plait to the effects that her Nikah ceremony had been performed under coercion and against her will and that the marriage and not been (validity) consummated. In her plaint, however, she made no such allegation of compulsion, which altogether changed the subject matter of the suit and therefore the leave to amend was refused by the trial Court.
In the course o his arguments in this Court Messrs, Mustafa Khan and Fidda Hussain counsel for the petitioner have laid stress on the point that matter proposed in the application for amendment is nothing but a mere elucidation of the facts laid down in the plaint and hence leave ought to be granted. In support of their contention A I R 1941 Mad. 811 that although power to grant leave for amendment ought to be liberally exercised, yet amendment introducing new and inconsistent case should not be allowed. Similarly It was laid down in all other cases cited above that amendment should be down in all other cases cited above that amendment should be allowed only to cure a defect in the plant or to elucidate some matter but with the reared to two conditions (1) of not working injustice to the other party and (2) of being necessary for the purpose of determining the real question in controversy between the parties.
Now in the present case it is quite obvious that the proposed amendment introduces not only an inconsistent case, but changes the whole cause of action. In the plaint she makes no mention of the Nikah ceremony having been performed against her will, but simply says that after the consumption although she ahs all along been ready to live amicably with him in his house as his wife. This clearly shows that the amendment prayed for represents quite a different cause of action from that given in the plaint. In these circumstances I uphold the order of the trial Court refusing leave to amend the plaint and dismiss the application for revision. Both parties present Announce.

P L D 1952 Baghdad-ul-Jadid 47
Before Abdul Hameed Malik, J.
MST. JANNAT
Verses
RAHIM BAKHSH
Civil Second Appeal No. 6 dated 21st January, 1952, decided on 21st May 1952.
So far as Bahawalpur State is concerned (vide Notification No. 39, dated 1st June 1943), the State Legislative intended that the general provisions of Muhammadan Law should control the operation of clause (ii) section 2 of the Dissolution of Marriages Act of 1939. It is, therefore, necessary in the State of determine first whether the wife is entitled to maintenance under the Muhammadan Law and therefore it follows where the wife was entirely to blame and no blame attached to the husband then the wife was not entitled to a divorce. [p. 49]A.
Where the wife is at fault then to legal duty is cast on the husband to provide for her maintenance. [p. 50]B.
So far as Bahawalpur State is concerned the operation of clause (ii) section 2 of the Dissolution of Marriages Act is entirely controlled by the general provisions of Muhammadan Law. [p. 50]C.
A wife who is not entitled to maintenance under the Muhammadan Law cannot get her marriage dissolved on the ground of failure of payment of maintenance. [p. 50]D.

P L D 1952 Baghdad-ul-Jadid 51
Before Abdul Hameed Malik, J.
MANOON and others
Verses
RAHIM BAKHSH
Civil Second Appeal No. (?), decided on 28th May 1952.
The plaintiff decree-holder in a pre-emption suit is entitled to set off the pre-emption price ordered to be deposited in Court against the costs awarded to him in the suit.

P L D 1952 Baghdad-ul-Jadid 53
Before Abdul Aziz, J.
MST. GHULAM JANAT
Verses
RAHIM BAKHSH and others
Revision Petition No.23 of 1951, decided on 26th March 1952.
In special circumstance High Court would allow revision even if no appeal was preferred against the order complained of.
Where the Court whose duty it was to decide whether the appointment of the guardian was in the interest of the minor or not had failed to perform that duty and appointed a guarding in accordance with a compromise arrived at between parties revision despite the failure of the petitioner to prefer an appeal could be entertained.
Under Muhammadan Law the mother is disqualified from the guardianship even of her minor daughter if she is married to a man who is not related to the minor within the prohibited degree. Where the law definitely laws down that an appointment of a certain guardian cannot be made, it is not proper for the Court to disregard the law even in the interests of the minor. [p. 57]B.
The law lays down a heavy duty o the Courts to make proper selection of a guardian of the person as well a s of the property of a minor. At any rate the procedure laid down by the law must be strictly, carefully, cautiously and judiciously observed. [p. 58]C.
Where the Senior Sub-Judge had paid no attention to the relevant law and had appointed a guardian as the result of a compromise between the parties and not on consideration of interest of minor [p. 58]D.

P L D 1952 Baghdad-ul-Jadid 53
Before Abdul Aziz, J.
MST. GHULAM JANAT
Verses
RAHIM BAKHSH and others
Revision Petition No.23 of 1951, decided on 26th March 1952.
In special circumstance High Court would allow revision even if no appeal was preferred against the order complained of.
Where the Court whose duty it was to decide whether the appointment of he guardian was in the interest of the minor or not had failed to perform that duty and appointed a guardian in accordance with a compromise arrived at between practice revision despite the failure of the petitioner to prefer an appeal could be entertain. [p. 57].A.
Under Muhammadan Law the mother is disqualified from the guardianship even of her minor daughter if she is married to a man who is no treated the minor within the prohibited to degree. Where the law definitely lays down that an appointment of a certain guardian cannot be made, it is not proper for the Court to disregard the law even I the interests of the minor. [p. 57]B.
The laws lays down a heavy duty on the Courts to make proper selection of a guardian of the per son as well as of the property of a minor. At any rate the procedure laid down by the law must strictly, carefully, cautiously ad judiciously observed. [p. 58]C
Where the Senior Su-Judge had paid no attention to the relevant law and had appointed a guardian as the result of a compromise between the parties and not on consideration of interest of minor. [p. 58]D.
Held, that it was a fit case I which the High Court should suo moto exercise its inherent powers under section 115, C. P. C. in the interest of the minors.

P L D 1952 Baghdad-ul-Jadid 59
Before Abdul Hameed Malik, J.
QADIR BAKHSH
Verses
ABDUR RAHMAN
Revision Petition No.7, dated 22nd January 1952, decided on 5th August 1952.
Where documents were neither tendered in evidence nor proved, it could not be said that such documents were legally on the record. It was wrong to base judgment on them.

P L D 1952 Baghdad-ul-Jadid 62
Before Abdul Hameed Malik, J.
HAJI GHULAM QADIR
Verses
ABDUL QADIR
Criminal Revision No.2, dated 2nd January, 1952, decided on 26th February 1952.
It is not the duty of the High Court in a reference made by the Additional District Magistrate against the order of framing a charge to examine the evidence to consider whether the charge was correctly framed.
It is premature for the High Court to give verdict in Reference proceedings under sections 345, 439, Cr. P.C., with regard to the sufficiency or otherwise of the evidence existing on the record.

P L D 1952 Baghdad-ul-Jadid 66
Before Abdul Aziz C.J.
LUQMAN
Verses
MUHAMMAD NAWAZ etc.
Criminal Revision No.64 of 1952, decided on 13th September 1952.
Where the petitioner had not adopted the right course of moving the Government to prefer an appeal from acquittal but moved the Sessions Judge who was not the proper person to be moved in the matter.
Held, that the High Court itself is competent to interfere it is thinks that there has been either a denial of the right of a fair trial or flagrant failure of justice.

P L D 1952 Sind 1
Before Tyabji, C.J,. Constantine, Vellani,
Mahomed Bachal and Muhammad Bakhsh, J, J.
CROWN
Verses
ABDUL AZIZ AND S. ISRAR HUSSAIN
Criminal Miscellaneous Application No.142, 1951, decided on 5th November 1951.
If it was really the case that the Contempt of Court Act and not apply to the Chief Court of Sind, far from helping the respondent the position should be otherwise, because as a Court of record, which that Court undoubtedly is, it would have the inherent power to punish contempts of itself, and the only result of holding that the Contempt of Courts Act did not apply would be that it would be open to that Court not punish the respondent to an ultimate extent, without the limitation which is contained in section 3 of the Act. [p. 10].
The words “a High Court presided over by a single Judge” in section 25 of Civil P.C. refer in the context to a High Court which consists of only one Judge such as, for instance, the Court of the Judicial Commissioner Quetta. There is no provision of law by which a case can be transferred from one Judge of a High Court to another Judge of he same High Court at the instance of parties after a judicial hearing on such grounds and as such manner as cases are transferred, for instance under section 24 of the Civil P.C. or section 526 of the Criminal P.C. .[p. 11].
An in England so in this State there is no authority which can transfer a case from the file of one Judge in this Court to any other Court without the consent of the Chief Judge of this Court. [p. 12].
The section contemplates only cases where a High Court (which term in section 25 includes Chief Courts and Courts of Judicial Commissioners) consists of a single Judge and where for this reason transfer of a proceeding cannot be made to another Judge of the same Court, but can be made only on another Court. [p. 16].
It is not merely the legal objection to the maintainability of the application which can be pointed to for showing that the application was not a bona fide one. It seems that the contents of a affidavit filed with the application are such as make it impossible to accept the view that the affidavit was made bona fide. One cannot be imagine anybody saying the things stated in the affidavit and in the manner I which they are stated unless his intention was to cause offence and to insult the Court. Further, it is quite clear that the allegation that the learned Judge had acted dishonestly because he had been the legal advisor of the father, it is quite clear that the allegation that the legal advisor of the father of defendants 2 to 8 was a scandalous allegation the making of which was clearly gross contempt. [p. 12].
Held, that the law in fact was to the contrary.
There was nothing whatever in any of the cases cited which supports the proposition that any party can under any circumstances claim to be entitled to make statements scandalizing the Court, or use disrespectful language for the purpose of insulting the Court, with impunity. [p. 12].
Parties and their advocates have the right to press their cases before the Courts, to urge everything that can legitimately and properly be urged with all the fore that they can. They are entitled to combat and contest, strongly and in an outspoken manner, any expression of adverse views that may be expressed by any judge during the course of an argument, and protest against any course that the Judge may propose to take. But they must always and under all circumstanced do so with respect. They are never entitled to go beyond the bounds of propriety and courtesy. They have to bear in mid that disrespect to the dignity and the authority of the Court, to the majesty of the law, can never be tolerated. Under no circumstances can a party or an advocate claim to be entitled to use disrespectful language to a Judge, and much less to insult or vilify him or to attribute judicial dishonesty or improper authority into contempt. The right atmosphere in which alone maintained. The question whether the contempt committed I any particular case was of a kind of which serious notice ought to be taken is an entirely different question, often depending upon a variety of consideration. The principle in perhaps more often applied to cases of contempt than to offences of any other kind. There are very many cases where the question is not so much whether technically a contempt had been committed but whether the offence was of such a kind as to call for serious notice. [pp.13, 14].
The respondent rendered apology thus:
“That without prejudice to the above the respondent expresses regret for such language in the transfer application as may be capable of being construed as disrespectful which I did not intend.”
Held, that an apology I such terms and at the last stage cannot be regarded as an apology to which very much weight should be attached as a mitigating circumstance. [p. 14].
This apology is in truth no apology. [.p 17].
The passage from the words “to lose temper” down to the words “put my case”., the passage in paragraph 14, his voice in an obviously discourteous manner, thereby humiliating and lowering my advice” appear scandalous per se. [p. 21].
In deciding whether the affidavit does or does not scandalize the Judge, not merely particular remarks, but he whole nature and tendency of the affidavit is to be considered. [p. 21].
Per Constantine, J—An affidavit is a solemn document, and not the work of an unconsidered and busty moment. The usual presumption is that a man intends the natural consequences of his act, and I see o reason to displace that presumption, whether his client’s motive as to secure a transfer rather than scandalize is a different question but even on this point of motive, speaking for myself. I consider that section 25 Civil P.C. is so clearly inapplicable that this lawyer of 23 years standing know that his application must fail. [p. 17].

P L D 1952 Sind 18
Before Tyabji, C.J,. Constantine, Vellani,
Mahomed Bachal and Muhammad Bakhsh, J, J.
CROWN—Petitioer
Verses
Z.A. SULERI AND IJAZ AHMED—Respondents
Criminal Miscellaneous Application No.140 of 1951, decided on 5th November 1951
Articles scandalized Judges of this Court, the articles were calculated to bring this Court into contempt and interfere with the administration of justice. [p. 22].
The apologies made in this case were clearly not made at the earliest opportunity. They were only made when this matter came up for hearing o the 20th October. It was impossible t say that the attitude of the respondents in this case was such as to indicate any genuine remorse or contrition on their part for the offences committed by the. The peal put forward by them that they did not intend to bring he Court into disrepute or contempt was clearly not honest or truthful. [p.21].

P L D 1952 Sind 23
Before Tyabji, C.J,.
QASIM
Verses
CROWN
Criminal Miscellaneous Application No.55/51, decided on 9th May, 1951.
Section 315 of he Criminal P.C. charges the Clerk of the Crown with the duty of summoning “as many of those who are liable to serve on special or common juries respectively as the Clerk of the Crown considers necessary” and it is improper for a Judge trying a particular case to interfere or concern himself unduly with the functions and duties which under the law have to be carried out by the Clerk of the Crown. [p. 26]A.
Under clause 2 of section 315, Criminal P.C., any summons or order requiring any juror who had been summoned, to attend again within six month would be contrary to the law and without jurisdiction, unless the entire list of jurors of that class had been exhausted within that period. [p. 26]B.
It makes no difference whether a person who had been summoned was or was not empanelled on the jury. [p. 26]C.
Jurors should summoned from the list by rotation, and everyone on the list should be called upon to attend before any of them is called upon to attend a second time within the period. [p. 26]D.
To discriminate between the jurors on the basis of the community to which they belonged held to be improper in the extreme, and contrary to principles of justice. [p. 71]e.
Binding down jurors held improper, and contrary to the express terms of clause (2) section 315 of Criminal P.C., an entirely without jurisdiction. [p.27]F.
Rule 528 of Chief Court (Sind) rules enables the Clerk of the Crown and the Judge, it they so choose, to refuse to allow a person, who is exempted from attending a particular Session, from claiming the further benefit of not being summoned again for six months The Rule does not empower either the Clerk of the Crown or the judge to make any sort of an order whatever against any juror who haws not applied for an exemption. Any order passed against any juror who has attended to answer to a summons and has not applied for an exemption would be wholly without jurisdiction, and contrary to the law. [pp. 27, 28].

P L D 1952 Sind 28
Before Agha J,.
CROWN
Verses
MUHAMMAD RAFIQUE SAFDAR and others—Respondent.
Criminal Acquittal Appeal No.154 of 1949, decided on 5th October, 1949.
The accused, acting in concert, intended to cross the border with prohibited goods and declared that intention when stopped; they had bought the goods and procured the lorry in Karachi in order to carry this intention, and were they owner of the goods, the owner of the lorry, and their spokes man ; they had provided themselves with a permit for export by rail of certain medical stores, and tried with this permit to bluff the Deputy Collector into believing that the goods and their export by lorry were converted by the permit ; they had traveled 360 miles, leaving only 35 miles to go, and it was nowhere suggested on the record that there was at the border any barrier or customs house. [p. 29]A.
Held, that up to that state whatever they had done was not punishable under the law, because they had not done any criminal act. Taking of these commodities from Karachi right up to the borders of Sind is not at all punishable by any law as the movement of these articles within the province was not prohibited. The fact that they intended to transport these articles out of the Province, does not make the opponents liable to be punished, because no one is to be monished for his intention. It is only the acts of a per son which if they amount to criminal offence can be punished. As said by Salmond in his Jurisprudence; An act, which is in itself and on the face of it innocent, is not a criminal attempt and cannot be made punishable by evidence aliened as to the purpose with which it is done. [p. 31]B.
The fact that there was no barrier or customs house at the border which might have deterred the opponents from crossing the border with these goods, does not make the act of the opponents in going up to the point where they were stopped by the Deputy Collector criminal. It is not at al material what the accused intended to do, or would have done if not stopped but what is material is, whether up to that stage they had done any act which cold be criminal and which would from part of the offence intended to be committed. [p. 32]C.

P L D 1952 Sind 32
Before Tayabji, C.J and Constantine, J.
KAZI MOHAMED AKBAR —Appellant
Verses
PROVINCE OF SIND and another—Respondents.
Miscellaneous Appeal No.17 of 1950, decided on 5th October, 1950.
It is quite impossible to construe the words “any suit for restraining the defendant” as covering suits other than those in which an injunction is one of the reliefs prayed for. [p. 33]A.
In order to brig his application for temporary injunction under Order XXXIX, Rule 2, the plaintiff relied n the prayer in plaint in which an injunction upon the defendant No. 1, the Province of Sind, was sought restraining the defendant from calling upon the Muhammadan Rural South Dadu Constituency to select a member to the Sind Legislative Assembly. But this prayer was not sustainable by reason of clause (d) of section 56 of the Specified Relief Act., which forbids the granting of any injunction which would “interfere with the public duties of any department of the Government of Pakistan or the Local Government… [p. 33]B.
The prayer therefore could not be taken into consideration for determining the nature of he suit as one for an injunction.
It was, however, not possible to agree with the view that no interim injunction could be granted against the Province of Sind merely because the perpetual injunction, prayed of one of the reliefs, could not be ordered at the end of the suit. The considerations upon which a Court may grant or refuse to grant an interim injunction, pending the disposal of the suit, may be, and often must, entirely different from the considerations upon which a Court may grant or refuse to grant a perpetual injunction at the end of the suit. As laid down in section 53 of the Specific Relief Act, temporary injunctions are regulate by the Code of Civil Procedure. [p. 34]C.

P L D 1952 Sind 34
Before Tayabji, C.J and Constantine, J.
PROVINCE OF SIND —Appellant
Verses
PIR ELLAHI BAKHSH AND G.M. SYED —Opponents.
Revision Application No.91 of 1950, decided on 25th May, 1951.
Per Tayabji, C.J. — Under section 115 civil P.c. the power is conferred on the High Court, not on any part of section of the High Court. The decisions which the High Court may revise under this section must clearly and necessarily be the decisions of other Courts, subordinate to the High Court, from which appeals lie to the High Court. The power conferred may e and of course often is, exercised by a single Judge of the High Court. The Court of a single Jude of the High Court, through subordinate to an appellate bench of the High Court, is still clearly always the High Court subordinate to the High Court. If it had been intended to confer on an appellate bench of he High Court the power to revise decisions of single Judges of the High Court, it would clearly have been necessary either to add a supplementary clause to section 115, or to use different words, expertly conferring such a power, which has not been conferred by the terms as they now stand. [p. 40].
Section 17 of the Sind Courts Act also, like section 115 of the Civil P.c., does not confer on any part or section of the Chief Court any powers whatever over another part or section of the Court. The powers whatever over another part or section of the Court. The power mentioned therefore is conferred of the Chief Court, and is exercisable only over decisions of other Courts subordinate to the Chief Court. [p. 40]C.
The power conferred was not to be exercised by one part, a bench, over another part of the same Court but by the Chief Court over Courts subordinate to it. There is nothing in this section to show that the power could be exercised over any part of the Chief Court. Further the use of work superintendence is very significant. [p. 41]D.
This word “superintend” necessarily implies that while the administration was to be done by the subordinate Court, the chief Court was empowered to superintend that administration. The Courts “subject to its appellate jurisdiction” referred to in section 17 are therefore necessarily Courts subordinate to the Chief Court. [p. 41]E.
Pre Constantine, J. –The Chief Court’s powers in appeal are regulated by section 14 of the Sind Courts Act, and its powers of revision are regulated by section 115 of the Code of Civil Procedure, and it would be incorrect t state that the Chief Court s an appellate Court is empowered to pass orders in revision without fulfillment of he conditions necessary for the exercise of its powers of revision. [p. 38]F.
Section 17 of the Sind Court Act is adapted from section 15 of the Charger Act (24 and 25 Victoria) which was reproduced in section 107 of the government of India Act, 1915 which in turn was reproduced with well knows modification in section 224 of the Government of India Act, 1935, and it may be noted that the words “all Courts subject to its appellate jurisdiction” have been used in all these sections. Thee is no doubt that before the enactment of section 224 of the government of India Act, 1935, this provision conferred not merely administrative control, but judicial control (whatever may have been its limits) over Courts subject to the appellate jurisdiction of the High Courts. There is however, no case in the books showing that any High Court exercised control over a single Judge of that Court under this provision.

P L D 1952 Sind 41
Before Vellani, J.
MUHAMMAD IBRAHIM —Plaintiff
Verses
MESSERS EAST AND WEST STEAMSHIP CO —Defendants.
Suit No 4 of 1950, decided on 5th September, 1951.
The plaintiff’s suit was for Rs. 20,000 against which the defendant claimed an equitable set off of Rs. 70,000. On the defendant’s contention that no Court-fee was payable on a equitable set off or alternatively that it was only payable on the difference between the set off and the amount claimed by the plaintiff i.e. on Rs. 50,000 only.
Held, that Court-fee was payable on the entire amount clamed be way of equitable set off there being no distinction between on equitable and legal set off in the matter of Court-fee.

P L D 1952 Sind 43
Before Tayabji C.J. and Constanine, J.
KARIM BUX JATOI
Verses
CROWN.
Criminal Revision Application No. 136 of 1950, decided on 22nd May, 1951.
After the magistrate had refused bail, the release on bail, whether it be by the police, by a Magistrate by the Session Court, or by the High Court must necessarily be release “under this section” within the measuring of clause (5) of section 497; and in every such case hall can be cancelled under he provisions of that clause. [p. 51]A.
After the magistrate had refused bail, the Assistant Sessions Judge admitted the applicant to bail on the 1st September, 1950. the applicant, with some others, was thereafter committed to the Sessions on the 27th October, and on the 13th November the Sessions Judge of Larkana cancelled the applicant’s bail and reminded him to custody. [p. 45]B
Held, that the order cancelling bail was not without jurisdiction.
(Per Tyabji, C. J. )— There is nothing in sections 496 and 497 show that these sections were intended to apply only to the investigating police and the Courts holding an enquiry or trial. On the contrary the language used makes it clear that they were intended to contain the entire law relating to the granting and cancelled of bail to accused (not convicted) persons, which had n be applied by all the Courts alike. [p. 46]C.
Section 498 confers on the High Court and the Court of Session the jurisdiction to hear and grant, inter alia, applications for bail made by persons accused (not convicted ) of non-bailable offences, but when disposing of these applications those Courts have necessarily to apply the relevant law applicable such cases which is contained in the provisions section 497. Any order regarding bail by such a Court is therefore necessarily an order granting a release “under this section “within the meaning of these words in clause (5) of section 497. [p. 48].
It must be regarded as a legal anomaly, of not an absurdity that there should be one law for the Magistrate compelling him to keep an accused person in custody under certain circumstances, and another law for this Sessions Court or the High Court under which the accused person might under the same circumstances be regarded as entitled to bail. Another anomaly would that while bail could always be cancelled when the accused was released on bail by the police or the trial Court, no Court could under any circumstance cancel bail if the accused was admitted to bail by the Sessions Court or the High Court, no Court could under any circumstance cancel bail if the accused was admitted to bail by the Sessions Court or the High Court, not even when it was clearly necessary to cancel bail in order to ensure that the trial was properly conducted and the hands of justice were not defeated. [pp. 49, 50].
If there can be no additional exhaustive statement of the because of he complete and exhaustive statement of the powers of the High Court to grant bail I the provisions relating ot the grant of bail, there can equally clearly be no relating to the grant of bail, there can equally clearly be no inherent power to cancel bail because of the complete and exhaustive statement of the powers of all the Court to cancel bail in clause (5) of the section 497. [p. 50]E.
(Per Constantine, J. )—The words “Under this session “ in subsection (5) of section 497 Criminal Procedure Code, hear the meaning “in non bailable case”, i.e. under section 497 as opposed to section 496, and are not intended to exclude cases where the High Court or Court o Session has acted under section 498 in releasing an accused person [p. 51]G.
I firmly disagree with the view that the High Court or Court of Session, acting under section 498 in non-bailable cases, are restricted to the grounds of release set out in section 497. Before 1923 the trial Court (an expression used for brevity’s sake) had power to release a person accused of a non-bailable offence only it through there were not reasonable grounds for believing him guilty. Section 498 was clearly necessary I order to allow the High Court and Court of Session a discretionary power of release on other grounds. When in 1923, discretion limited to specific grounds was entrusted to the trial Court, this amendment did not affect the general discretion already conferred by section 498 on the High Court and Court of Session. [p. 51]H.

P L D 1952 Sind 52
Before Muhammad Bakhsh, J.
EBRAHIM AHMED—Plaintiff
Verses
SIND HOSIERY & TEXTILE MILLS—Defendants.
Suit No. 426 of 1952, decided on 9th September, 1952.
Under the Arbitration Act of 1940, Schedule 1, paragraph 2, the arbitrators are bound to appoint an Umpire within one month of their appointment as arbitrators. On a very simple interpretation of para 2 it becomes clear that the appointment of an Umpire within the period of one month is mandatory and if that appointment is not made within that period the award that follows becomes invalid.

P L D 1952 Sind 54
Before Tyayabji C, J.
MOULA BUX —Appelicant
Verses
CHARUK and others —Opponents.
Criminal Transfer Application No. 32 of 1951, decided on 23rd April, 1951.
Evidence of the opinion of a witness, as an expert, on any branch of the law, whether it be the Muhammadan Law of any other law, is wholly irrelevant, expert when the question is about a point of foreign law. [p. 56]A.
It is well settled law, and one of the fundamental principles of the Muhammadan Law itself, that no Court can test or guage the sincerity of religious belief, and in order to hold that a per son was Sunni Muslim it was sufficient for a Court to be satisfied that he professed to be a Sunni Muslim. It is not permissible to any Court to enquire further into the state of the mind and the belief of a person who professed to belong to a particular faith and inquire whether his actual belief confirmed to the orthodox tenets of that particular faith. [p. 56]B.
The Muhammadan Law which the Courts have to administer in this State is the law, such as it is as stated into recognized authoritative texts of the jurists of the particular faith concerned which have been allowed and applied by the Courts in this country, and that the Courts have not be concern themselves with their own opinions or the opinions of any individuals, no matter how learned, with regard to the true construction or interpretation of the Quran or the authenticity of the Hadith on which Muslim jurisprudence is ultimately base. [p. 56]C.

P L D 1952 Sind 57
Before Tyayabji C, J.
SALEH MOHOMED —Appellant
Verses
CROWN —Respondent.
Criminal Appeal No. 55 of 1951, decided on 24th April, 1951.
The Additional District Magistrate is a District Magistrate within the meaning of clause (2) of section 12 of the Hoarding and Black Market Act (XXXIX of 1948). [p. 59]A.
The terms of clause (2) of section 10, Criminal P.C., make it quite clear that an Additional District Magistrate could exercise all he powers conferred upon a District Magistrate by the Criminal P.c. or by any other Law for the time being in force. [p. 59]B
A complaint signed by an Additional District Magistrate under he Hoarding and Black Market Act (XXIX of 1948), is therefore, quite in order.

P L D 1952 Sind 61
Before Constantine and Muhammad Bakhsh J, J.
TAR MUHAMAMD & CO —Petitioner
Verses
CROWN —Opponent.
Criminal Revision Application No. 119 of 1951, decided on 6th November, 1951.
Where search warrant was issued on request of customs authorities for the purpose of taking over certain documents and invoices;
Held, that the investigation of the customs authorities was not authorized under the Code, and therefore the warrant, being issued for a purpose outside the scope of the Court’s powers under section 96, was illegal. 0[p. 63]A.
The fact that the documents came to be handed over to the customs authorities showed that the warrant was issued not for the purpose of an enquiry, but for the purpose of an investigation by the customs authorities. The distinction between a Magistrate allowing inspection by the Customs authorities to aid his own inquiry and between an investigation by them may be thin, but nevertheless it is substantial. [p. 63].B

P L D 1952 Sind 64
Before Vellani, J.
DR. TILLUMAL —Plaintiff
Verses
SETH ABDULLAH and another —Defendants.
Original Civil Jurisdiction Suit No. 349 of 1950, decided on 16th October, 1952.
In respect of a case of action arising against a deceased Muhammadan the plaintiff impleaded only one of the hears of the deceased and later sought to impaled the other heirs when the period of limitation for the suit had expired;
Held if these other heirs were joined as defendant section 22 of the Limitation Act would apply to them and since more than three years (which was the period of limitation applicable t this su9t) had elapsed between the accrual of the cause of action and the applicant for joinder the request must be refused.
The other heirs ere not merely proper but necessary parties to suit and any decree that might be passed against the defendant originally impleaded was not binding on these other heirs.

P L D 1952 Baluchistan 1
Before R.K.M. Saker J. C.
SAADAT ALI KHAN —Convict –Appellant.
Verses
CROWN —Respondent.

Criminal Appeal No..17 of 1951 decided on 16th August, 1951.
The public Prosecutor drew the High Court’s attention to the fact that the convict- appellant had been acquired of the offence of accepting illegal gratification under section 161, Pakistan Penal Code and requested the High Court to use the powers conferred by section 439, Criminal Procedure Code and remark on the order of acquittal;
Held, it would clearly be improper to accede o this request for if the Crown is dissatisfied with the order of acquittal, it is at liberty lodge an appeal in accordance with the provisions of section 417, Criminal Procedure Code. Moreover, subsection(5) of section 439,Criminal Procedure Code is a mandatory provision of law prohibiting a Court from exercising its powers of revision in cases were an appeal is competent but has not been lodged. [p. 4].
Section 6 of the Prevention of Corruption Act does not define the manner in which the order of section shall be worded. The fact that the sanction mentions charges of bribery and corruption etc., though loosely worded, can only have one meaning. The competent authority gave sanction to the prosecution of the convict-appellant for specific criminal charges. The provisions of section 197, Criminal Procedure Code are also attracted in such a case, and while no rulings are apparently in existence on the definition or application of section 6 of the Prevention of Corruption Act, it an accepted principle that the sanction required by section 197. Criminal Procedure Code is not required in any particular form. Since the convict-appellant was also charged with an offence under section 161, Pakistan Penal Code sanction to this prosecution was equally necessary under section, 197, Criminal Procedure Code. It was held by the Madras High Court that the authority which gives sanction must specify the offence; but that does not mean that the particular section of the Penal Code should be mentioned. If the facts mentioned in the sanction point to a particular offence the terms of the section are complied with. [p. 5].
Where the accused was charged, with an offence under Section 161 Pakistan Penal Code “read with” Section 5 of Prevention of Corruption Act(II of 1947);
Held though the two offenses were distinct, the irregularity of a joint charge was curable under section 537 Criminal Procedure Code there being no failure of justice in the facts of the case.
There can be no doubt that when, for the purpose of committing the offence of forgery, it is necessary to forge more than one document and when the act of forging each document was a series of acts forming the same transaction section 235 of the Criminal Procedure Code will apply. [p. 6].
As for the evidence on hand-writing, it would be extremely dangerous to clear entirely on the evidence of experts in this respect. While an opinion may be expressed as to the probabilities of one person being responsible for forging a signature or not, this will be a matter of opinion only and cannot, by any stretch of imagination, be taken as from evidence of roof. [p. 7].

P L D 1952 Baluchistan 8
Before R.K.M. Saker J. C.
HAJI MAULA BAKHSH and another–Defendant —Petitioners.
Verses
SYED AKBAR SHAH and another —Plaintiffs—Respondent.
Criminal Miscellaneous Revision No.3 of 1951 decided on 9th May, 1951.
Under the provisions of section 34 of Regulation I, no Civil Court has jurisdiction to adjudicate upon any question as to whether property is or is not evacuee property.
Order – This is a petition under the provisions of section 115 of the Civil Procedure Code read with section 33 of the British Baluchistan Courts Regulation for the revision of an order passed by the Additional District Judge in a civil appeal.
The main grounds on which the order of the lower Court has been assailed are that the learned Additional District Judge exercised jurisdiction not vested in him by law since he adjudicated upon a question relating to property which is not claimed by the petitioners to be evacuee property.
The brief facts of the case are that respondent No. 2 Seth Jetha Nand Te Chand, who is now an evacuee, transferred certain Hundis which he had obtained from the petitioners to respondent No. 1 Syed Akbar Shah. On behalf of the petitioners it was argued that these Hundis should be Syed Akbar Shah it is claimed that since the Hundis were in movable property they fall under the definition mentioned at section 2 (3) (b) (i) of Regulation I of 1950.
The facts of the case are relatively simple for it is admitted that the evacuee transferred these Hundis to Syed Akbar Shah on 12th September 1947 that is some months after the date laid down in section 2(3) (b)… namely the 28th of February 1947. I have carefully considered the order passed in this respect by the learned Additional District Judge and there is no doubt in my mind that he has adjudicated upon a question of the status of the property in suit. My attention has been drawn to my order of 20th March 1951 in Civil Miscellaneous Revision No. 5 of 1950. This order dealt with the provisions of section 34 of Regulation I of 1950 and that it would be made to the Custodian. In the light of the circumstances of that particular case. I came to the conclusion that the Civil Court concerned had no doubt as to the status of the property in suit. But in this case from the very wording of the order, doubt appears to arise in the mind of the Additional District Judge for he use the words “ I am inclined to think that the Hundis in this case are covered by the provisions of section 2 clause 3(i) of the said Regulation.” If therefore, doubt existed in the mind of the Additional District Judge he was precluded from adjudicating upon the status of the property and he was, as required by section 34 of Regulation I, bound to refer the case to the Custodian for decision.
I do not propose, this order, to express any opinion about the status of the property, but there is a consideration element of doubt whether Hundis were in possession of the evacuee and which were transferred to a non-evacuee after 28th February 1947 can be considered as non-evacuee property.
Since, under the provisions of section 34 of Regulation I, no Civil Court has jurisdiction to adjudicate upon any question as to whether property is or is not evacuee property, the order of the learned Additional District Judge in this case is ultra vires since he has exercised jurisdiction not vested in him by Law. The provisions of section 115, Civil Procedure Code are accordingly attracted.
In these circumstance I accept the revision petition and direct that the order of the Lower Court will be set aside and that, in accordance with the provisions of section 34 of Regulation I, a reference will be made to the Custodian to adjudicate upon the question whether or not the Hunddis in question are evacuee property.

P L D 1952 Baluchistan 10
Before R.K.M. Saker J. C.
MUHAMMAD HANIF–Convict —Appellate.
Verses
CROWN—Respondent.
Criminal Miscellaneous Revision No.8 of 1951 decided on 11th July, 1951
There is no provision of law which requires a presumption to be made viz that a confession must be presumed to be made voluntarily unless the contrary is proved through the principle enunciated is a sound one. It would, however, be a principle only not necessarily having the force of law. If a confession which is recorded is in the manner required by law, is subsequently retracted by the accused at his trial alleging that he was either under police influence or was likely to be maltreated, the retraction must generally be viewed with suspicion unless there are some indications or inferences that the statement has accused makes in Court is probably true. It may, in many cases, be impossible for a person in custody of the police to prove that he had been maltreated or that pressure was brought to bear on him to confess and it would not be in the interests of justice to insist on placing the burden of proof on the accused that his statement retracting the confession was a true one. [pp. 12, 13].
In the case of retracted confessions every case must be death with on its merits. Without requiring proof a Court might draw inferences, for instance from the fact that the accused had been in police custody for a long time in that he was taken immediately from policy to the Magistrate who recorded his confession. In these circumstances it might be permissible to assume that the confession so made was not a voluntary one. But it would be dangerous to discard a confession properly recorded which, in the face of it, appeared to have been voluntarily made, on the bare statement of the accused in Court that he had confessed under police inducement or threat. [p. 13].
Statements made to the police are not signed and are not made on oath. While they may be used in Court by the defence to test the veracity of a witness, it would not be proper to make it a general rule of practice to discard the evidence of a witness out of hand because his evidence defected from the statement he made to the police. In confronting a witness with such a statement the sole intention is that the Court may judge whether he is a truthful witness or not; but circumstances must vary in each case. Statements may be inaccurately recorded; witnesses may genuinely forget what they said to the police if some length of them has elapsed. All these factors require are full weighing by a Court and every case must be judged on its merits.
Human memory is generally short and it would be improper to disregard the evidence in Court of a witness because he is unable to remember what he said in his various statements to the police made two years previously. [pp.14, 15].

P L D 1952 Baluchistan 17
Before R.K.M. Saker J. C.
MST ZOHRA BAI and others —Appellate.
Verses
VASDEV and anothers —Respondent.
Civil Second Appeal No.16 of 1950 decided on 3rd February, 1951.
The suit is obviously for ejectment only and the appellate decree of the District Judge does not in any way involve directly any claim to, or question respecting, the property in question. Moreover the judgment of the lower appellate Court does not reverse or vary the decree passed by the Court of the first instance. This being the case, the appeal in the High Court is not competent under clause (b) of section 32 of the British Baluchistan Courts Regulation, Section 100 of the Civil Procedure Code to which a reference which has been made in this appeal, does not apply to Baluchistan since we have been made in this provision for second appeals for this province as contained I section 32 of British Baluchistan Courts Regulation.

P L D 1952 Baluchistan 22
Before R.K.M. Saker J. C.
DEPUTY COMMISSIONER QUETTA PISHAIN —Petitioner.
Verses
SYED MUHAMMAD HUSSAIN —Respondent.
Criminal Revision No.4 of 1951 decided on 10th September, 1951.
Occasions may also arise in which claims may be made from the wrong person; or that they may be excessive or, in other ways, erroneous. But the Magistrate acting under section 97 must fulfill his duties without questioning the merits of the case. He certainly no discretionary powers which would allow him either to reject the claim or to refer the parties to a Civil Court. [p. 24].

P L D 1952 Baluchistan 25
Before R.K.M. Saker J. C.
GHULAM MUHAMMAD JAFAR Accused—Petitioner.
Verses
CROWN Complainant—Respondent.
Criminal Revision No.11 of 1951 decided on 30th May, 1951.
Whenever a Court requires an accused person to furnish a hail bond, the terms of the bail should normally be for attendance and that other conditions should not be imposed. This would be more so in a case where the accused is called upon to be of good behaviour; since there is separate and district provision of law for this purpose. It would be improper to impose such a condition in a bail bond and to ignore the provisions of such a condition in a bail bound and to ignore the provisions of the Cr. P.C which provide for such cases. [p. 26].
High Court would be reluctant to entertain applications of this nature unless there are good and sufficient persons for a petitioner to approach this Court direct without approaching the lower Court first. [p. 27].

P L D 1952 Baluchistan 27
Before R.K.M. Saker J. C.
ABDUS SATTAR Defendant—Appellant.
Verses
BIB PAINDAH and another—Respondents.
Criminal Revision No.4 of 1951 decided on 26th June, 1951.
Where the suit is for a claim by one partner of a dissolved firm against the other the bar contained in section 69 (1) of this partnership Act must be operative in view of the fact that the firm was undersigned. [p. 30].
Where the suit failed on its merits and for want of jurisdiction or for any other cause of a like nature section 14 of the Limitation Act is not applicable. [p. 30].

P L D 1952 Baluchistan 31
Before R.K.M. Saker J. C.
HASAN AKHTAR —Convict—Appellant.
Verses
CROWN —Respondent.
Criminal Revision No.33 of 1951 decided on 27th November, 1951.
A retracted confession, unless corroborated in material particulars, is likely to be sufficient evidence on which a conviction could be sustained, though there is no law which precludes conviction on the sole evidence of a retracted confession in the case of the maker of the confession. [p. 33]A.
Where the circumstances are that the confession accused was seven days in Police custody when he was produced from Police custody to confess and that when his confession was recorded all the relevant documents were made available., apparently without his asking for them, in order that he might refresh his memory as to the circumstances of the case; and finally the confession was retracted, the authenticity of the confession is doubtful and there is liable to be a strong presumption that the confession itself is a tutored one. [p.35].
General portions of a confession also cannot be used, a confession must be examined n to. [p. 35]C.
It is a general rule that the confession of a co-accused stands on a lower footing than the statement of an accomplice which is made on oath and which can be rested by cross-examination. While it is generally accepted that even the statement of an accomplice would require corroboration, the need for the corroboration of the confession of a co-accused is still greater. [p. 36]D.
The confession one co-accused cannot corroborate the confession of another co-accused as against the non-confessing accused. [p. 36]E.

P L D 1952 Baluchistan 37
Before R.K.M. Saker J. C.
ABDUL HAMID —Complainant—Petitioner.
Verses
MUHAMMAD FEROZ —Accused—Respondent.
Criminal Revision Petition No.34 of 1951 decided on 6th November, 1951.
Since both the District Magistrate and the Sessions Judge have concurrent powers with the High Court under section 435, Cr. P.C. it should not be open to any person to attempt to use the revisional powers of the High Court as if they were appellate powers when once the matter has been decided by one of the lower revisional Courts. While there may be no legal bar to the submission of a revision petition to the High Court, even though a similar petition may have been dismissed by a lower Court, the High Court will be most reluctant to exercise its powers unless some fresh set of circumstances had arisen which were not considered by the lowes5t revisional a Court; or as to the facts or the law. In brief, it will be necessary for petitioner either to approach the High Court direct, provided there are special reason for his not approaching the Sessions Judge or the District Magistrate in the first instance; or, if he is dissatisfied with the judgment of the lower revisional Court, he must be in a position to show that there are fresh grounds for the High Court to exercise powers of revision. [pp.38, 39].

P L D 1952 Baluchistan 39
Before R.K.M. Saker J. C.
MUHAMMAD ANWAR –Complainant—Petitioner.
Verses
HAJI MALIK HAIR DIN—Accused —Respondent.
Criminal Revision Petition No.48 of 1951 decided on 18th December, 1951.
All proceedings, even the framing of a charge, must be treated as forming part of the trial. [p. 40]A.
Exclusion of prosecution evidence from a trial would be illogical, for the records of a trial as such can hardly be considered to be complete unless the depositions of all prosecution witnesses form part of that record. [p. 41]B.
Proceedings before a committal Magistrate, who is succeeded by another Magistrate cannot be treated as a trial and an accused person cannot therefore exercise the right accruing to him under section 350 Cr. P.C. [p. 42]C.

P L D 1952 Baluchistan 24
Before R.K.M. Saker J. C.
(MISS) C. VERMA and another Accused—Petitioners.
Verses
CROWN –Complainant —Respondent.
Criminal Revision No.3 of 1952 decided on 24th March, 1952.
It is normally the duty of the Police to investigate and prosecute cases of a cognizable nature. If the Police, for sound and valid reasons, consider that there is no case for presentation to a Court, it should follow as a matter of course that a Court would not normally take cognizance of such a case against the advice of the Police. There is of course no such bar to any Magistrate taking cognizance, for occasions might arise in which evidence or information not available to the Police might be available to the Magistrate, in which even the Magistrate would be at liberty to take cognizance in accordance with the provisions of section 190, Cr. P.C. [p. 47]A
Section 561-A is operative only to deal with cases not covered by any other express provision of the Code. [p. 48]B.
A process of a Court means anything which is done by Court and abuse of that process is committed by starting a proceeding which is wanting in bona fides and is frivolous vexatious or oppressive. [p. 48]C.
The powers of the High Court to make use of section 561-A, Cr. P.C. to secure the ends of justice, though very wide, will normally be sparingly use. Therese powers are, however, inherent and where circumstances indicate that there is a patent case of injustice the High Court will undoubtedly interfere at any state at which the case in question has been reached. [p. 48]D.
The Court is at liberty to interfere at an interlocutory stage of a criminal proceeding and it has been held that one of the tests to be applied is to see whether in the admitted circumstances of the case it would be a mock trial if the case is allowed to proceed. [p. 48]E.

P L D 1952 Baluchistan 52
Before R.K.M. Saker J. C.
MUHAMMAD HUSAIN —Convict—Appellant.
Verses
CROWN —Respondent.
Criminal Appeal No. 6 of 1952 decided on 24th April, 1952.
Expert testimony, especially the opinion of hand-writing experts, must always be received with great caution and it is highly unsafe to rely o expert evidence when facts lead to a contrary conclusion.

P L D 1952 Baluchistan 56
Before R.K.M. Saker J. C.
MST. BADR-UN-NISA —Surety —Petitioner.
Verses
CROWN —Respondent.
Criminal Revision Petition No. 53 of 1951 decided on 25th February, 1952.
Despite notice to appear to show cause why the bail bond should not be forfeited the surety failed to appear. In these circumstances the Court had no alternative but to direct the forfeiture of the bail bond [p. 58]A.
The High Curt will not treat cases lightly in which persons who are directed to appear before Criminal Courts deliberately disobey such summons without adequate reason. The authority of all Criminal Courts must be maintained and, unless there is sound and reasonable excuse persons why stand sureties for those accused of criminal offences must be made responsible for their failure to appear. [p. 58]B.

P L D 1952 Baluchistan 59
Before R.K.M. Saker J. C.
SAID NOOR —Convict —Petitioner.
Verses
CROWN —Respondent.
Criminal Revision Petition No. 55 of 1951 decided on 15th January, 1952.
The Question put to the accused should be framed in such a manner that the accused will be given reasonable opportunity to offer his explanation if he has one. [p. 61]B.
Subsection (1) of section 364, Criminal P.C. lays down that the whole of the examination shall be recorded in full the language in which the accused is examined, or if not practical, I the language of the Court or in English. In this case the language in which the statement of the accused was recorded in Urdu; but the mother tongue of the petitioner was Phshto. The mother tongue of the Magistrate was also Pushto. It will therefore be clear that if a person of the status of the petitioner, an illiterate tribesman, is accused of any offence, he should, in the normal course o events, where that is statement I his mother tongue, particularly when that is also the mother tongue of the Magistrate who is trying the accused. It cannot be considered as satisfactory that a statement of such vital importance should be recorded n another language when, in all probability the statement in which it was made was not in Urdu but in Pushto. [pp. 61, 62]C.
The statement of the accused being in signed, and the Sessions Judge, having not complied with the strict provisions of section 533 of the Criminal P.C. the statement should not have been taken into consideration when the appeal was considered. The case should have been dealt with on its merits solely on the evidence for the prosecution and defence which had been recorded. [p. 62]D.

P L D 1952 Peshawar 1
Before Muhammad Shafi.J.
MUSALI KHAN —Plaintiff —Petitioner.
Verses
NAZIR AHMEAD –and others—Defendant—Respondent.
Civil Revision Petition No. 249 of 1950 decided on 15th November, 1951.
A de facto guardian of the Muslim minor has no power to transfer any right or interest in the immovable property of the minor, and if he does so, the transfer is no merely avoidable but absolutely void. [p. 3].
The mere fact that he purchased the property for the minors would not entitle him to sell away the property. If a de factor guardian sells away the minors property it would not be a valid sale even if it is done for the benefit of the minors.
The Muslim Law does not recognize a de facto guardian at all. He is the person wh voluntarily puts himself in change of the person and property of the minor, but has no legal sanction behind hi. Under the circumstances he cannot possibly be held to be competent to deal with the minor’s property, even if it is minor’s interest. The Muslim Law very zealously guards the interest of the minor, and the Holy Quran has at more than one place given very great prominence to the minors and their interest in the property. In view of this prominence it is impossible t even imagine that he defector guardian would be given a power to arbitrarily decide as to what would be the interest of the minor, and then to deal wit his property on that basis. Under the Muslim Law a defector guardian has under no circumstance any power to alienate the minors property in any form [p. 4].
A distinction has got to be made between the transfer which is effected for the purpose of defeating the pre-emptor and the one which is absolutely fictitious and sham. While the first transfer would be perfectly valid and legal, the second would be absolutely ineffective so far as the pre-emptor is concerned. If the parties enter into any sham and unreal transaction they would certainly take very great care that nothing should happen to excite suspicion about the genuineness of the sale. [p. 4]

P L D 1952 Baluchistan 6
Before Muhammad Ibrahim J.C. and Muhammad Shafi J.
WALAYAT SHAH — Judgment –detor—-Petitioner.
Verses
GHAFAR SHAH and others —Respondent.
Criminal Revision Petition No. 1243 of 1950, decided on 26th November, 1951.
G. an occupancy-tenant sold his rights in the land in favour of S.W. pre-empted this sale and obtained a decree, Subsequently M. exercised his option granted to him by section 60 of the Punjab Tenancy Act, and had the original sale of the occupancy rights declared void. G. instituted a suit for the possession of the land, on the ground that the sale of the occupancy rights by him in favour of S having been declared void, the pre-emption decree ipso facto became inoperative, and he was entitled to get back the possession of the property from W. [p. 7].
The suit was decreed o payment of Rs. 400 pre-emption money, and it was further ordered that the money must be paid “within two months” failing which the decree will become inoperative.
Held, that there was no provision of law by which while granting a decree for possession the Court could order the plaintiff to deposit the amount within two months, and further order that failing the deposit the decree would become inoperative. The learned trial Judge by fixing the time of two moths during which the amount was to be deposited in Court seem to have mistaken the suit as being that of redemption or pre-emption. In both these case thee is a provision of law which entitles the Court to fix the period during which the amount found by the Court haws to be deposited. In suites for possession the Civil Courts are not authorized o fix such granted. Articles 182 of the Limitation Act comes into play, which provides a period of three years from the date of the order. No Court has got the jurisdiction to limit this period by fixing in a decree or order a shorter period than the one prescribed by that Article [p. 8].

P L D 1952 Baluchistan 9
Before Muhammad Shafi J.
FAQIR HUSSAIN—-Appellant.
Verses
ADMINISTRATOR CHARITABLE INSTITUTIONS , N.W.F.P, PESHAWAR —Respondent.
Civil Appeal No. 56/19 of 1951, decided on 11th December, 1951.
Before an action in respect of a certain property is taken under the North-West Frontier Province Charitable Institution Act, 1949, it should be property which is held or is to be applied in trust for a charitable purpose as defined in the Act. If a certain property is not held or applied in the trust for a charitable purpose, the Provincial Government has no jurisdiction to pass an order with respect to that under section 3 of the Act.
The house in question belonged to G. After his death if he had left no heir, the property might vest in the Government by the rule of escheat, but on account of that reason it certainly did not become the property as defined in the North-West Frontier Province Charitable Institution Act of 1949. Every property which belongs to the Government or which vests in the Government is not a Charitable Institution, or property held or applied in trust for a charitable purpose.

P L D 1952 Baluchistan 12
Before Muhammad Ibrahim J.C. and Muhammad Shafi J.
MUHAMMAD AYUB KHAN —
(Representative of the original Judgment—Debtor) Appellant.
Verses
LT. COL. NAWAB SIR MUHAMMAD AKBAR KHAN — Decree – —Respondent.
First Miscellaneous Appeal (Civil ) No. 113 of 1950, decided on 20th October, 1951.
It is well established principle of law that if an order in substance determines a question relating to execution between the decree-holder and the judgment-debtor, that order would amount to a decree and would be appealable under the section 96 Civil C.P. Where it was in substance decided that the judgment-debtor could dismantle his building, remove the malba within five months and hand over possession of the property t the decree-holder.
Held, that this was the determination of a question relating to execution between the decree-holder and the judgment-debtor and as such amounted to a decree. The appeal, therefore, was perfectly competent. [p. 15].
An objection which was never raised by the judgment-debtor either in the first two execution applications, or before the executing Court and had not been raised in the grounds of appeal was not allowed to be raised in argument in appeal. [p. 15].
Before a person is put in possession of a certain property be does not become the tenant at all. The suit, therefore, between him and he person from whom he takes the property on lease, for the recovery of possession of the property leased is not a suit by tenant against a landlord and is therefore, cognizable by a Civil Court. [pp. 15, 16].

P L D 1952 Peshawar 16
Before Muhammad Shafi.J.
MUHAMMAD HUMAYUN KHAN and others—Plaintiff–Petitioner.
Verses
ABDUR RAZIK–and others—Defendant—Respondents.
Civil Revision Petition No. 39 of 1951 decided on 19th February, 1952.
In view of the express provisions of section 7 of the Indian soldiers (Litigation) Act, the order staying the proceedings till the termination of War or till the defendant was free was without jurisdiction and illegal. [p. 18]A.
If a Court received a notice under section 6, it has to postpone the proceedings in respect of the soldier for the prescribed period, or if no period has been prescribed for such period as it thinks fit. [p. 17]B.
Rule 7 of Rules (1938) made under the Act says:
“On receipt of a certificate form the prescribed authority under section 7 of the Act, that a postponement of the proceedings is necessary in the interests of justice, the Court shall postpone the proceedings until the receipt of a certificate in Form D, from the prescribed authority, or until he soldier is represented in the proceedings by some person duly authorized to appear, plead, or act in his behalf.”
As defendant had now appeared, even if it was no the application made by the plaintiff, and was represented in the proceedings by his lawyer, the proceedings shall be taken to have been automatically revived and the question of limitation did not at all arise. [p. 18]C.
The Act itself does not lay down anywhere that it is the duty of the plaintiff, to move the Court for the revival of the stayed proceedings. The language of Article 181 of the Limitation Act and particularly what is mentioned in its last column, viz., “when the right to apply across” clearly significant that it is restricted only to those application, which a certain do a certain thing of its own accord, and independently of any the Court reminding it of its duty shall not be governed by this Article at all. [p. m18]E.

P L D 1952 Peshawar 19
Before Muhammad Shafi.J.
K.B. MIR ALAM KHAN —Plaintiff–Petitioner.
Verses
MST BENAZIRA–and others—Defendant—Respondents.
Civil Revision No. 31 of 1951 decided on 14th February, 1952.
A pre-emption suit in respect of a sale by a non-Muslim vendor after 1st March 1947, ended in a decree. On appeal to the Additional Judge, the suit was dismissed on objection raised by the Assistant Custodian that the sale I dispute was against section 16 of the Pakistan (Administration of Evacuee Property) Ordinance XV of 1949 and that the Civil Court was debarred from adjudicating on the point by reason of section 34 of the Ordinance.
Held, if the parties are agreed with regard to a certain transaction that it has taken place and is valid in law the Court cannot go into the at question and hold otherwise, because on that particular point the parties are jot at variance. In the case the plaintiff alleged that a valid sale had taken place in favour of Mst. Benazira defendant The latter not only denied this fact, but admitted it to be correct. On this point therefore the parties were not at variance and consequently not at issue. The lower Appellate Court was, therefore, no competent to go into the question of the validity of the sale at all. For a sale to be ineffective under the Ordinance there are several facts which have got to proved, and one of them is that the person transferring the property was an “evacuee” within the meaning of that word In the Ordinance. That fact has to be alleged and proved just like any other fact in a case. The lower Appellate Court was not right in holding that Viashno Dass was an evacuee simply because his address given in the plaint was that of India. Mere residence in any place in the territories now comprising India, does not make a person evacuee until and unless it is also proved that by reason of that person his property I Pakistan. The lower Appellate Court was not justified in holding the transaction in dispute ineffective by reason of the fact that it violated certain provisions of a certain Ordinance. [pp.22, 23]A.

P L D 1952 Peshawar 23
Before Muhammad Shafi.J.
LABAB GUL — –Petitioner.
Verses
BADSHAH GUL—Respondents.
First Miscellaneous Appeal No. 12/4 of 1951 decided on 26th February, 1952.
The emphasis in para 2, First Schedule of Arbitration Act is not on the appointment of the umpire but on his appointment within one month of the appointment of the arbitrators. [p. 24]A.
In the case of an even umber of arbitrators who have given a unanimous award, the award cannot be set aside for the mere reason that the arbitrators failed to appoint an umpire [p. 25]B.
Failure by the arbitrators to give a notice under section 14 of the Act is not an omission which would invalidate the award. [p. 25]C.
The mission is not covered by words “otherwise invalid” in section 30, clause (c).
It is not the intention of the law that notice in order to be valid should be given by one arbitrator only, it shall be deemed to have been given by all, unless contrary is proved, and it will thus be a perfectly good notice. [p. 25]C.

P L D 1952 Peshawar 26
Before Muhammad Shafi.J.
GHARIB SHAH — –Petitioner.
Verses
ALAM SHAH and others —Defendant —Respondents.
Civil Revision Petition No. 52 of 1952 decided on 22nd h February, 1952.
Extending the time under section 22 of the Pre-emption Act, is within the discretion of the trial Judge. [p. 28]A
The Court, however, should do so for good and sufficient reasons the law of pre-emption is a creation of a statute and is an artificial right which has the result of defending a legitimate and legal contract. There are, therefore, no equities involved in it. If the plaintiff in such suits wishes the Court to exercise its discretion in his favour, he shall have to show some very strong circumstance to entitle him to this indulgence. In the case under consideration the trial Court had given the plaintiff almost two months to deposit the pre-emption-money. [p. 27]B.

P L D 1952 Peshawar 28
Before Muhammad Ibrahim J.C. and Muhammad Shafi J.
RAMKOLA SUGAR MILL & CO. LTS. –Appellant.
Verses
COMMISSIONER, INCOME TAX, WEST PUNJAB AND N.W.F.P. —Respondents.
Miscellaneous Reference No. 17 of 1951 answered on 19th November, 1951.
On 31st October 1942, the Foreign Company declared dividend and a sum of Rs. 75,000 became due to the Assessee Company. On that day at the position was that he Assessee Company owed t the Foreign Company a sum of Rs. 78,897. After this dividend was declared in pursuance of an agreement reached between the Assessee and the Foreign companies, the two amounts representing the counter-claims were set off against each other resulting in a final credit balance of Rs. 3,897 in favour of Foreign Company. [p. 30]A.
Held, that the diffident income of Rs 75,000 was received by the Assessee company I British India within the meaning of section 4(1) read with section 14 (2) of the Act. [p. 32[B.
If any income, profits or gains accrue to a certain person ordinarily residing in British India, without British India, they can be remitted to him in several ways. They can be paid by a draft-order of one Bank on another, or by sending some realizable assets to British India, or by any other method recognized in the commercial world as appropriate for the transmission of the money. They may a further be received by cross entries made in the account-books, the effect of which would be the virtual receipt of the amount in British India and its application there as an income. In all these cases although the income is not received I specie, yet to say that it is not received at all will be a travesty of judgment. [p. 31].C.

P L D 1952 Peshawar 32
Before Muhammad Shafi J.
KHUDA BAKHSH.—Plaintiff –Petitioner.
Verses
ABDUL JABBAR and others. —Defendant–Respondents.
Civil Revision Petition No. 66 of 1950 decided on 11th July, 1951.
The subsequent transferee can in order to avoid his liability prove (1) that he is a transferee for value, (2) that he has paid the money in good faith, and (3) that he had no notice of the original contract. Under section 27 (b) it is clearly for the transferee to establish the circumstances under which he would be entitled to retain the property [p. 37]A.
Prima facie once the vendor had contracted to sell the property in favour of another person, the subsequent transferee will have no right to get the property until it is shown that he had done notice of the prior agreement. Under section 103 of the Evidence Act the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Again under section 106 of the Evidence Act, when any fact is specially within the knowledge of any person the burden of proving that fact is upon him. [p. 37]B.
Normally the compensation is mentioned in the agreement to provide a security for its performance and not because the performance of the contract. A party who contracts t sell a certain immovable property in favour of another person should not be allowed to evade the specific performance merely on account of the fact that he agreement provides the penalty to be paid in default. The plaintiff would be entitled to have the contract specifically enforced in spite of the fact that damages in case of default have been stipulated in the agreement. [p. 39]C.

P L D 1952 Peshawar 40
Before Muhammad Ibrahim J.C. and Muhammad Shafi J.
MST. SARWAR JAN –Petitioner.
Verses
GUL MUHAMMAD and others —Respondents.
Civil Revision Petition No. 172 of 1950 answered on 10th March, 1952.
The bare reading of old section 59, would make at perfectly clear that immediately on the death of an occupancy tenant if he died without leaving male lineal descendants I the male line of descent but leaving behind a window, the property devolved on the widow and not o the male collaterals, if three were any. No doubt the widow was to occupy the property until she died or remarried, and was also not entitled to transfer it by sale, gift or mortgage, or sub let it for a term exceeding one year, but then it does not mean that simply because certain restrictions and limitation were placed on her rights, the property did not devolve on her, or she could not be termed as an occupancy tenant of the property. In spite of those limitations and restrictions she was to all intents and purpose an occupancy tenant. [p. 43].
The widow’s death having taken place after the coming into force of the new section 59, her occupancy rights would devolve on her Muslim-law-heirs.

P L D 1952 Peshawar 44
Before Muhammad Shafi J.
SAIN.—Plaintiff –Petitioner.
Verses
SHAH ASGHAR SHAH. —Defendant–Respondents.
Civil Appeal No. 7/2 of 1951 decided on 23rd October, 1951.
Under section 107 subsection (2) C. P. C. the appellate Court has been given the same powers and has been authorized to perform as early as may be the same duties as are conferred and imposed by the Code of Civil Procedure on Courts of original jurisdiction in respect of suits instituted therein,. This section, thus would make the provision relating to the rejection of plaint applicable to the memorandum of appeal. In this reading of the law, the order of the Senior sub-Judge in rejecting the memorandum of appeal will be perfectly legal and not open to any objection.
It should, however, be noted that I such cased under section 6 Court Fees Act, 1870 the Courts should normally not accept the memorandum of appeal at all [pp. 46, 47]A.
If the Court erroneously receive sub document and it finds that it is deliberately stamped insufficiently, the Court would be perfectly justified in rejecting the memorandum of appeal. [p. 47]B.

P L D 1952 Peshawar 47
Before Muhammad Shafi J.
MUHAMMAD ZAMAN— and others –Petitioner.
Verses
MST. NAIMA SULTAN—Respondents.
Petition for Revision No. 245 of 1959, decided on 15th November, 1951.
Under Muhammadan Law its is absolutely necessary that the man or someone on his behalf and the woman or someone on her behalf should agree t the marriage at one meeting, and that the agreement should be witnessed by two adult witnesses. [p. 49]A.
In the case of woman who has not attained majority the consent of marriage can be given by her father. [p. p49]B.
1940 Peshawar Law Journal page 2, and 1942 Peshawar Law Journal page 19. ref.
In the case of divorce by the husband before the consumption of the marriage the dower is reduce to half, there is however absolutely no authority that in any other case much less in the case of the death of the husband, which is not a voluntary act on his part or in which the wife has got no hand, the dower should be reduce in any way. [p. 50]C.

P L D 1952 Peshawar 53
Before Muhammad Shafi J.
ALTAF HUSSAIN–Petitioner.
Verses
CROWN—-Respondents.
Criminal Revision Petition No. 208 of 1951, decided on 10th January, 1952.
Where the succeeding Magistrate did not ask the accused if he wanted a de novo trial:
Held that while it is true that I law the Magistrate is not bound to put this question to the accused, in justice and equity, when a Magistrate takes over charge of a case, he should inquire from the accused whether he wants a de novo trial or not. [p. 54]A.
One prosecution witness was examined after framing of charge, but Magistrate failed to give an opportunity to the accused to explain his evidence:
Held, section 342, Criminal P.c. makes it obligatory for the Court to question the accused generally on the case after the witnesses for the prosecution have been examined. Failure of the Court to comply with the provisions of section 342, Criminal P.c., cases prejudice to the accused, which cannot he cured by section 537. Criminal Pc. [pp. 54, 55]B.
The conviction was quashed and retrial ordered.

P L D 1952 Peshawar 55
Before Muhammad Shafi J.
MUHAMMAD IRFAN–Plaintiff —Petitioner.
Verses
MST. MAHANDO and others—-Defendant–Respondents.
Further Civil Appeal No. 57 of 1950, decided on 14th February, 1952.
In a quarrel between the husband and his brother the husband said that he would take a bottle of honey from his brother and if he did not do so his wives would be considered divorced [p. 58]A.
Held, that the emphasis in this case was not on the divorce of the wives, but on his taking back the bottles of honey from his brother. It is not uncommon in this country to find people taking oath like this, that if he aid not do a certain thing he would be the son of an owl, or bastard. It would be stupid t think that if the person did not do that thing he would automatically become a bastard or the son of an owl and the former, would lose all rights to inheritance from his father. [p. 58]B.
Islam in the matter of divorce, just as in other matters, looks more to the intention of the people rather than the form or more words if by taken on oath a party only wants to impress upon the other that a certain thing must be done that if it is not done his wives would stand divorced to him, he does not in fact mean to sever his connection permanently with his wives in the even of his failure to do that thing.

P L D 1952 Peshawar 59
Before Muhammad Shafi J.
MIR GHAZAN —Petitioner.
Verses
ASIM KHAN–Respondents.
Revision Petition No. 160 of 1951, decided on 17th June, 1952.
The expression “in due course of law” used in section 9 of the Specific Relief Act is not synonymous with the word “legal” if a certain person obtains the possession of a certain property in due course f law, although in granting possession the Court has not acted strictly according to law, still the delivery of possession would be in due course of law, and a suit for getting back the possession of the property under section 9 of the Specific Relief Act would not be maintainable. [p. 61]A.
If a dispossesses B without the intervention of the Court, although his act may be perfectly legal, still if it is not done with the intervention of the Court a suit under section 9 of the Specific Relief Act perhaps will be maintainable, but where A dispossesses B with the intervention of the dispossession B with the intervention of the Court the dispossession take place n due course of law, and cannot be questioned in a suit under section 9 of the specific Relief Act. [p. 61]B.

P L D 1952 Peshawar 62
Before Muhammad Ibrahim J.C. and Muhammad Shafi J.
SHAH PASAND KHAN–and others–Defendant –Appellants.
Verses
SHER ZAMAN KHAN and others —Plaintiff—Respondents–Respondents.
Appeal No. 58/50, decided on 17th March, 1952.
The word “landlord” in this section was not used in relation to tenant. A person entitled to the possession of the land is a brought within the meaning of this section, and every suit against his consent, is a suit under section 7 of the N.W.F.P. Tenancy Act, and is triable only by a Revenue Curt.

P L D 1952 Peshawar 65
Before Muhammad Shafi J.
MUHAMMAD ZAMAN–Petitioner.
Verses
ABDUR RASHIS and others ——Respondents
Petition for Revision No. 134 of 1951, decided on 27th June, 1952.
Objections by representatives of a deed person are not maintainable under section 47, Civil P.C., but under O.XXI, rule 97. Since the objectors are strangers to the decree, no appeal can be competent against the order passed under this provision of law. [p. 67].

P L D 1952 Peshawar 68
Before Muhammad Shafi J.
JANA–Defendant —Petitioner.
Verses
SAIDA –Plaintiff —-Respondents
Petition for Revision No. 143 of 1951, decided on 16th June, 1952.
A document which is not registered can be produced and admitted into evidence in order to prove the collateral purpose, for example the nature of possession of a certain person, over a certain property. [p. 69]A.
A per son, who has been put in possession of the property as a result of an unregistered document, can protect his possession by the production of that document , and non-suit the person, who has executed it and has actually put him in possession of the property. [p. 69]B.

P L D 1952 Peshawar 70
Before Muhammad Shafi J.
AYAZ —Plaintiff-Petitioner.
Verses
MAKAI and another –Defendant–Respondents
Petition for Revision No. 174 of 1951, decided o 11th July, 1952.
C-heirs of a Muslim dying intestate take the property as tenants-in-common, and none of them can be regarded as a person who is by law charged with any duty of distributing the estate. Consequently, it will be Article 120 or Article 144 of the Limitation Act, which, according to the nature of the property whether it is movable, or immovable would apply to the suit brought by one heir against the other, for the declaration o his title to or partition of the property. Applying Article 144 of the Limitation Act, the time does not run from the date of the death of the last owner, but from the date when the possession of the defendant becomes adverse to the plaintiff. [p. 72].

P L D 1952 Peshawar 73
Before Muhammad Shafi J.
ATAULLAH and others— -Petitioner.
Verses
ABDUL CHAGOOR and another –Respondents
Civil Revision Petition No. 152 of 1950, decided of 08th April, 1952.
If no application under O.XXII, C.P.C, is made, the appeal automatically abates. It is not necessary that the court should pass a specific order of abatement, as a consequence of the failure of the party to make the application. [p. 76]D.
Where neither an application for bringing the legal representatives of a deceased respondent on the record was made within ninety days of his death, nor was an application made for setting aside the abatement within sixty days of the abatement of the appeal and it was urged o behalf of the appellant that the appeal had been postponed under the Soldiers (Litigation) Act (IV of 1925): [p. 76]A.
Held, that the mere fact that the proceedings had been stayed, is not a sufficient cause for not preferring an application for bringing the legal representatives of the deceased respondent on record within the prescribed period. [p. 76]B
Further, that as the interests of the respondents in the appeal were joint and indivisible, and as the interests of the deceased respondent could not be separated from those of the rest the appeal abated as a whole. [p. 77]C.

P L D 1952 Peshawar 77
Before Muhammad Shafi J.
MST. ZEBU others— -Appellants.
Verses
MIZAJ GUL –Respondents
Civil Appeal No. 58/19 of 1950, decided of 3rd July, 1952.
The view of the Legislature seems to be that the father being the natural and lawful guardian of a minor does not require to be so appointed. The natural guardianship which vests in him cannot be taken away from him until and unless it is proved that he is unfit to be the guardian of the person of the minor. [p. 79]A.
Where a father as one had applied for being appointed guardian of his minor children,
Held, there was nothing to pass an order under section 25, it is not at all necessary that an application to that effect should be made by the aggrieved guardian. The Court suo moto, or if it is moved to that effect either orally or in writing can take proceedings against the person who has removed a ward from the custody of a guardian. The argument therefore, that the trial Court could not threat the application of respondent as one under section 25 of the Act, falls to the ground. [p.80]C.
It will be putting a ridiculous construction on action 25 of the Act to hold that after a Muslim father becomes entitled to the custody of the children, who were until then lawfully in the custody of their mother, he has no remedy open to him under the Guardian and Wards Act. After he attainment of the specified age, the custody of the minor by the mother immediately becomes unauthorized. The minors would then be presumed to be in the constructive custody of the father and if the mother confuses to hand over the children to the father it would be tantamount to her removing the wards from the custody of their rightful guardian. [p. 80]D.
Section 25 of the Act, should receive a liberal construction, and must be held to include the right of a father to get the custody of his minor children. [p. 80]E.
A father is perfectly competent under section 25 of the Guardians and Wards Act to get the custody of his minor children from the mother, when she eases to be their lawful guardian. [p. 81]F.

P L D 1952 Peshawar 82
Before Muhammad Shafi J.
MUHAMMAD IBRAHIM KHAN –Plaintiff – -Appellants.
Verses
SARBILAND KHAN and others–Respondents
Further Civil Appeal No. 64/29 of 1950, decided on 25th February, 1952.
The document originally having been duly presented by the claimant its subsequent presentation under section 75(2) by a counsel who was not properly authorized would not make the registration invalid. [p. 87]A.
A document presented for registration after the expiry of four months cannot be registered unless presented within the following four months, with an application that the delay should be excused, because it was due to urgent necessary or unavoidable accident. If the Sub-Registrar registers the document presented to him after the expiry of the first four months, then he does it without jurisdiction, and the document shall be considered as not having been registered at all. If the Registrar without any prayer having been made to him that the delay should be excused and without applying his mind to this fact orders the registration of the above document on some other ground, the document would still be considered as not having been legally registered. [p. 87]B.
The law with regard to the presentation of the document within four months is mandatory and ahs to be complied with. It is not only a question of procedure. It consequently cannot be said to have been cured by section 87 of the Registration Act. [pp. 87, 88]C.

P L D 1952 Azad J. & K. 1
Before Abdul Majid, C. J and Niaz Ahmad, J.
DIN MUHAMMAD ETC.
Verses
AZAD J. & K. GOVERNMENT
Criminal Appeal No. 31 of 1951, decided on 27th October, 1951.
It is well settled principle of law that an approver’s evidence is unworthy of credit unless corroborated in material particulars. [p. 3].
There is a rule of prudence which has almost the force of law that it is not safe to convict on the uncorroborated evidence of an approver. [p. 4].
Such corroboration is necessary even if the approver happens to be a near relation of the accuse.

P L D 1952 Azad J. & K. 5
Before Niaz Ahmad, J.
HABIBULLAH KHAN.
Verses
MUHAMMAD HUSSAIN KHAN
Criminal Revision No. 98 of 1951, decided on 22nd November, 1951
After the issue of the process the Magistrate should have proceeded with the trial. He could not direct an investigation under section 202 Criminal Procedure Code.
The Magistrate decided the case no a day subsequent to the date of the hearing. The hearing was fixed for 15th September, 1951. No order was passed on that date. On the following day the case was dismissed and no order was passed as to the discharge or acquittal of the accused.
Order dismissing the complaint under section 203 Criminal Procedure Code being against law was set aside.

P L D 1952 Azad J. & K. 8
Before Abdul Majid, C. J and Niaz Ahmad, J.
JALAL KHAN—Petitioner.
Verses
GOVERNMENT—Respondent
Criminal Revision No. 81 of 1951, decided on 15th November, 1951.
Several injuries were caused to the girl during the course at the whole beating. The accused cannot be held guilty of different offences for the various blows given by him. He is liable only to one punishment for the whole beating and could be punished only for an offence under section 326 A.P.C.

P L D 1952 Azad J. & K. 10
Before Abdul Majid, J.
GUL DAD —Petitioner.
Verses
AZAD J. & K GOVERNMENT
Criminal Revision No. 122 of 1951, decided on 12th January, 1952.
Under section 439 Cr. P.C only those orders can be revised which occasion miscarriage of justice arising from misconception of law, irregularity of procedure etc. The inherent powers vested in the High Court under section 561 (a) Cr. P.C. can only be exercised in cases which are not covered by the express provisions of the Code where justice has to be done. If the case had been withdrawn then certainly the order of the Magistrate would have been open to revision, if it had been passed arbitrarily and not otherwise. The order challenged in the petition is not at all a judicial order. It was passed by the District Magistrate in his executive capacity. The petition in revision is not competent.

P L D 1952 Azad J. & K. 11
Before Abdul Majid, J.
MAIN KHAN etc.—Petitioner.
Verses
PIRAN DITTA etc. — Respondents.
Criminal Revision No. 86 of 1951, decided on 12th November, 1951.
There is indeed no bar to the passing of a mandatory injunction in a proper case under section 147 (2) Criminal Procedure Code but it should not be directed as a matter of course. It can only be made if there are very strong reasons for making an order to that effect.

P L D 1952 Azad J. & K. 13
Before Abdul Majid, J.
MUHAMMAD SADID and another.—Petitioners.
Verses
MUHAMMAD HUSSAIN etc. — Respondent.
Criminal Revision No. 118 of 1951, decided on 16th December, 1951.
The more omission to record a memorandum under section 539-B Cr. P.C. is not an illegality vitiating the proceedings but it is an irregularity vitiating the illegality if it results in prejudicing the accused.
The oral evidence led by the complainant had been disbelieved by the Magistrate as to the main incident and it was believed only with respect to an offence under section 426 A.P.C. because it stood corroborated by the result of the inspection of the spot. The inference is that at the time of writing the judgment the trial Magistrate imposed his own knowledge of the facts and became the principal witness in the case so far as the conviction of the accused was concerned which was not legal. If the trial Magistrate had placed upon record the result of his inspection at once, the respondents might have got an opportunity of seeing what the facts were which had been observed on the spot. The trial Magistrate thus gave the judgment without giving an opportunity to the respondent to rebut his opinion which he had formed at the time of the inspection of the spot about the evidence led in the case. The failure of the Magistrate in according the memorandum of his local inspection was an illegality vitiating the proceedings. [pp. 14, 15].

P L D 1952 Azad J. & K. 18
Before Niaz Ahmad, J.
ABDUL MAJID.
Verses
SULTAN-UN-NISA
Criminal Revision No. 14 of 1951, decided on 6th February, 1952.
Where the Court admitted a document at a late stage of the case:
Held it was within the competence of the Sub-Judge to decide whether a document not produced at the first bearing should or should not be admitted in evidence at a very late stage. He had jurisdiction to decide the point and his exercise of jurisdiction was not irregular. Orders which do not decide anything as to the issues but merely endeavor to collect the material in order to decide the case would not be orders which decide any case and when there has been no material irregularity in the exercise of such jurisdiction, the High Court would not interfere in revision.

P L D 1952 Azad J. & K. 19
Before Abdul Majid C.J and Niaz Ahmad, J.
MUHAMMAD KHAN.
Verses
GOVERNMENT
Criminal Revision No. 47 of 1951, decided on 19th August, 1951.
The accused was arrested by the military on 22nd February, 1949. He remained in police custody till the time he was produced before the Sub-Divisional Magistrate and as there was no judicial lock-up in Bagh, the appellant was given back to the police after his statement was recorded and he was kept in the thana lock-up. No attempt was made by the Magistrate who recorded his confession to ascertain as to when an where the accused was first placed under the police control or arrest. No question was put to him as to when the accused was arrested and the period during which he had remained in the custody of police. The accused was not assured that he would not be handed over to the police and as a matter of fact he was handed back to the same. Investigation Officer who was sitting outside the Court room and the accused was kept by him in the thana. [p. 22]A
Held that the confession was not voluntary.
The requirements for ascertaining the voluntary nature of the confession are not satisfied by putting a few formal questions and repeating a set formula which the accused can scarcely appreciate. [p. 22]B
Where the confession contained improbabilities was contradicted in several matters by the First Information Report and the medical report and the prosecution evidence the confession was not held to the true. [p. 23]C
An important test of the truth of the confession is the revision of facts which up to the time the confession was made, had not been discovered by the police. [p. 23]D

P L D 1952 Azad J. & K. 24
Before Abdul Majid C, J.
MUHAMMAD SHARIF KHAN.
Verses
AZAD J. & K GOVERNMENT
Revision No. 11 of 1952, decided on 5th January, 1952.
The word “Pleader” defined in section 4, has enlarged meaning, so that the convicts may have an opportunity of presenting their cases fully before the appellate Court, even if they are not in a position to engage a regular Counsel. The permission of the appellate Court is not at all needed by a person appointed by the convict as his agent by a power of attorney to present an appeal o his behalf. What the agent appointed to present an appeal on his behalf. What the agent appointed by a power of attorney does, is the action of the appellant himself so far as the presentation of the appeal is concerned. The appeal presented on behalf of the appellant by his father as his Mukhtar is properly presented in Court. [pp. 25, 26].

P L D 1952 Azad J. & K. 26
Before Abdul Majid C, J.
HASHAM DIN
Verses
AZAD J. & K GOVERNMENT
Revision No. 42 of 1952, decided on 12th May, 1952.
For an order of forfeiture under section 514 Criminal P.C it is necessary that the bail bond should be taken in proceedings of criminal nature failing under one of the sections of the Criminal P.C. In this case, the proceedings in which Mst. Urmala Kamari was recovered and banded over to the petitioner were not at all of criminal nature. The bail bond given by the petitioner for the production of Mst. Urmala Kamari cannot therefore be said to have been given before a Judicial Court, whose action is regulated by the Criminal. [p. 27]A
The bail bond was filed before the Deputy Commission and the order of its forfeiture could only be given by this officer and not by the Additional District Magistrate. [p. 27]B.
The order directing forfeiture without giving he petitioner an opportunity of proving his allegations was bad.

P L D 1952 Azad J. & K. 28
Before Abdul Majid C, J.
ATTAULLAH KHAN
Verses
AZAD J. & K GOVERNMENT
Criminal Reference No. 49 of 1952, decided on 15th May, 1952.
There is nothing in section 556 of the Criminal P.C. which debars a trying Magistrate from taking committal proceedings in a case in connection with which he has acted in his Magisterial capacity, to wit, he has either recorded the statement of the accused or conducted an identification parade, or recorded a dying declaration, or done some other such thing. In discharging his duty as a Magistrate, one cannot be said to have any personal interest whatever I a particular case. The position of a Committing Magistrate as frequently explained is wholly different from that of a Magistrate trying a case. The committing Magistrate cannot be said by any stretch of reason to have any personal interest in the case committed by him for trial to the Sessions Judge.

P L D 1952 Azad J. & K. 30
Before Abdul Majid C, J.
MAULVI ABDUL KARIM —PETITIONER
Verses
AZAD J. & K GOVERNMENT
Miscellaneous Criminal No. 29 of 1952, decided on 14th May, 1952.
The petitioner apprehended that because, according to him, he had helped actively a certain candidate for election, to State Assembly, who was a rival to the Sessions Judge before whom his appeal was pending, he would not have a fair hearing. The allegation of active help, however, was denied by the Sessions Judge.

P L D 1952 Azad J. & K. 32
Before Abdul Majid C, J.
SYED FAIZ ALI SHAL and another—APPELLANT
Verses
GHULAM ABBAS SHAH, ETC—RESPONDENT
Appeal No. 26 of 1951, decided on 28th June, 1952.
It was admitted on both sides that the alience from the widow of a son of the plaintiff’s father were not parties to the previous suits in which the plaintiffs were declared illegitimate and that they did not acquire any right on the basis of the former judgments between the plaintiffs and the other descendants of their father: [p. 33]A
Held, that as the aliences did not acquire any rights under the former judgments the question of their correctness cold be gone into by this Court for finding out whether these judgments gave an erroneous decision on a question of Law and consequently these should not operate as res-judicata so far as the legitimacy of plaintiff-appellants is concerned. [p. 33]B

P L D 1952 Azad J. & K. 38
Before Abdul Majid C, J.
MUNSHI HABIBULLAH KHAN
Verses
MUHAMMAD HUSSAIN
Criminal Revision No. 69 of 1952, decided on 26th October, 1952.
There must be clearly on record something to show that the person who represents the accused has been duly appointed by him and that the Court has given requisite permission for his appearance in place of the accused.
Where in a case under section 500, A.P.C., against a police officer, the District Magistrate ordered the prosecuting D.S.P. to appear for the accused, and the Court simply allowed the latter to defend the accused without thee being anything on record to show that the Court had given specific permission as required by section 4 (1) (r) C.r. P.C.
Held that the prosecuting D.S.P., could not act as a pleader for the accused until the accused applies to the Magistrate for permission to enable the Prosecuting Deputy Superintendent Police to defend him and the Magistrate grants the application.

P L D (Rev.) 1952 Punjab 1
Before J.W. Hearn, financial Commissioner.
AKHTAR N. CHOWDHRY —Appellant
Verses
CROWN
Appeal No. 218 of 1948-50, decided on 19th April, 1950.
Neither the Act, nor the rules contemplate a half permit and the Regional Transport Authorities are competent to issue full permits only.

P L D (Rev.) 1952 Punjab 2
Before Akhter Hussian,, financial Commissioner.
SHEIKH MUZAFFAR-UD-DIN —Appellant
Verses
CROWN — Respondent
Appeal No. 152 of 1950-51, decided on 19th November, 1951.
The Tehsildari Rules make it quite clear that the Financial Commissioners are virtually the punishing authority the case of Tehsidars (whether officiating or permanent) where it is Tehsildar. In these circumstances, while he Commissioner enumerated in Appendix “A” to the Tehsidars Rules except those of removed and dismissal, he was not competent to dismiss the appellant firstly because he had been appointed as an officiating Tehsildar by the financial Commissioners and secondly, because the Tehsidari Rules contemplate that the penalty of removal and dismissal in the case of Tehsildars should be imposed by the Financial Commissioner alone. Tehsildars can also be either officiating or temporary and there is no distinction made in the rule between them and substantive holders of the post. Section 240 of the government of India Act is also clear on the point. For these reasons the order appealed against was passed without jurisdiction and as such must set aside. [pp. 5, 6].

P L D (Rev.) 1952 Punjab 7
Before Akhter Hussian,, financial Commissioner.
MST MAHANDAN —Petitioner
Verses
GHULAM MUHAMMAD CROWN — Respondent
Revision No. 98 of 1946-47, decided on 17th July, 1948.
The omission to record reasons for entertaining the belated application for review by the collector is not a material irregularity warranting interference in revision.
It is, however, important that Revenue Officers should apply their minds and make their orders self-contained. The Collector should have recorded reasons for entertaining the application so late.
When a mutation entry ha been incorporated in a jamabandi it should not be altered except on the basis of an obvious clerical error or patient fact.

P L D (Rev.) 1952 Punjab 9
Before Nawabza Saidullah Khan, financial Commissioner.
NAWAB SIR MALIK KHIZAR HAYAT KHAN—Petitioner
Verses
CROWN — Respondent
Revision Side No. 34 of 1949-50, decided on 12th January, 1952.
The Collector in the assessment of the Agricultural Income Tax having Tax of Rs. 1,16,588/- on the 31st January 1949, effected an increase in the amount to the extent of Rs. 28,035 in the subsequent mutalaba for the year 1948 without giving any notice and hearing to assessee under section 15(1) (c) of the Land Revenue Act:
Held, in revision that the case should be remanded to the Collector who should afford an opportunity to the petitioner of being heard and then pass an order of assessment afresh.

P L D (Rev.) 1952 Punjab 10
Before Akhter Hussian,, financial Commissioner.
ISLAM ULLAH —Appellant
Verses
R.T.A., RAWALPINDI —–Respondent
Appellate Side No. 226 of 1949-50, decided on 18th May, 1951.
The Regional Transport Authority had made no distinction between operators or non-operators in the matte of issuing permits to them. The only condition laid down by the Authority was that so far as the non-operators were concerned no individual would get more than one permanent permit. The appellant had got a permanent permit and had been utilizing the same for over a year. As a non-operator temporary permit holder he was, therefore, entitled to the same consideration to which the other non-operator like the appellant were.

P L D (Rev.) 1952 Punjab 11
Before Akhter Hussian,, financial Commissioner.
BAHADUR KHAN —Appellant
Verses
R.T.A., RAWALPINDI AND CROWN—–Respondents
Appellate Side No. 392 of 1950-51, decided on 19th September, 1951.
The appellant held 3 public carriers permits, 8 temporary private carriers permits and sought renewal of his 3 permanent private carriers permits which was refused by R. T. A. on that permit that these were liable to be abused.
Held, that as the appellant had possessed 3 permanent private carriers permits for over 10 years for he carriage of permits to temporary permits on the vague ground that permanent permits were liable to abuse.

P L D (Rev.) 1952 Punjab 13
Before Akhtar Hussain, financial Commissioner.
MUHAMMAD SAI KHOKHAR —Appellant
Verses
HABIB ALAM SHAH —–Respondent
Appellate Side No. 1 of 1951-52, decided on 99th January, 1952.
The word “chiefly” means “largely” and as more than half the estate is still owned by Government, the rule applicable is clearly rule 17 (i).

P L D (Rev.) 1952 Punjab 14
Before Akhter Hussian,, financial Commissioner.
GHULAM MOHY-UD-DIN —Appellant
Verses
CROWN AND R.T.A., LAHORE —–Respondents
Appellate Side No. 383 of 1940-50, decided on 10th April, 1951.
The Regional Transport, Authority suspended certain route permits on the ground that in each case the vehicles had been found carrying price in contravention of the provisions of the West Punjab Paddy and Rice Control Order, 1949.
Held, that as the observance of the provisions of the West Punjab Paddy and Rice Control Order, 1949 had not been made a condition on the permits the orders was unsustainable.

P L D (Rev.) 1952 Punjab 15
Before Akhter Hussian,, financial Commissioner.
PUNJAB PARKASH —Respondent
Verses
JAGDISH PARKASH —–Respondents
Appellate Side No. 50 of 1945-46, decided on 26th February, 1952.
The plaintiff asked for permission to amend the plaint to include certain periods for which rent was also due;
Held, that O. II. R. 2, C.P.C. is no bar to amendment of plaint.

P L D (Rev.) 1952 Punjab 16
Before Akhter Hussian,, financial Commissioner.
BUTA and another—Petitioners
Verses
GURDAWARA NADHA —–Respondents
Appellate Side No. 7 of 1948-49, decided on 26th February, 1952.
It is not correct to hold that because to the Jamabandi, of 1938-39 the petitioners have been recorded as paying rent equal to the amount of land revenue payable by landowners without any Malikana on account of long standing possession, the relationship of landlord and tenant between the parties did not exist. The very reference to land revenue and cases as rent and to reasons for not paying Malikana shows that the relationship of landlord and tenant did exist.

P L D (Rev.) 1952 Punjab 17
Before Akhter Hussian,, financial Commissioner.
GHULAM RASUL —Respondent
Verses
NUR MUHAMMAD —–Respondents
Appellate Side No. 51 of 1950-51, decided on 4th March, 1952.
The existing right of the landlord to eject a tenant6, whether under the Tenancy Act or any other law, has been excepted from the purview of section 3 of Act XIII of 1950. Section 7 of this Act only bars the jurisdiction of Courts in matter which a Revenue Officer is empowered by the Act to dispose of. Under clause (2) of section 3, an application on any one or more of the four grounds mentioned in subsection (1). The proviso is not one of the grounds and, therefore, there is no bar to the jurisdiction of the Revenue Court in a case falling under he proviso. The proviso under subsection (1) clearly and unequivocally preserves the existing rights of the landlord to eject a tenant, and since section 77 of the Punjab Tenancy Act, has not been repealed, his right to use under that section also subsists. [pp. 18, 19]A.
Under section 4 of the Punjab Protection and Restoration of Tenancy Rights Act, sections 44 and 45 of the Punjab Tenancy Act have been made ineffective, and therefore, a landlord could enforce his rights. [p. 19]B.

P L D (Rev.) 1952 Punjab 19
Before Nawabzada Saidullah Khan,, Financial Commissioner.
MST. GHULAM FATIMA —Petitioner
Verses
MUHAMAMAD SHAFI and others—–Respondents
Appellate Side No. 35 of 1950-51, decided on 21st February, 1952.
A widow who has a life-interest in the estate, cannot alienate the estate by means of a gift or sale and the fact of registration will not confer a better title on a person than that given to him by law.

P L D (Rev.) 1952 Punjab 20
Before Nawabzada Saidullah Khan,, Financial Commissioner
MST. JANAT BIB and another —Respondent
Verses
MEHAR KHAN and others—–Respondents
Appellate Side No. 33 of 1949-50, decided on 4th August, 1951.
The widow in this case and had a limited interest i.e., life interest, in the estate received from her husband and could not, with any justification whatsoever, permanently transfer a part or the whole of the estate in the form and manner indicated in the two mutations, one relating to the oral sale and the other to a gift, in favour of the respondent vide paragraph 715. Chapter 7 of the Punjab Land Records Manual. The allegations in both the cases were with the object depriving the lawful and legitimate climates (viz daughters) of the estate at a time when the West Punjab Muslim personal Law (Shariat) Application Act, 1948, had been passed in the middle of March, 1948, whereby to such alienations could be effected except within the terms and conditions laid down therein. This tendency on the part of the owner clearly amounts to flagrant abuse of the powers vested in a landlord for the transfer of landed property and should be checked effectively. [pp. 21, 22].

P L D (Rev.) 1952 Punjab 23
Before Saidullah Khan, Financial Commissioner
MALIK MUHAMMAD AFZAL —Petitioner
Verses
CROWN —–Respondents
Appellate Side No. 4 of 1949-50, decided on 5th April, 1952.
Where in view of the chaotic conditions of accounts the District officer it was exceedingly difficult to determine and specify whether the fards bagaya for, (a) the year 1945-76 and (b) all the proceeding years to 1945-46, have actually been set off against the total demand (mutalaba) realizable from the petitioner, the case as remanded to the Collector with a direction that he should afford an opportunity to the petitioner to put in Court all the fards bqaya in his possession for the period specified in (a) and (b) above and after scrutinizing the various items determine the admissibility of accounts, set it off against he total mutalaba for these two periods and then give a final finding accordingly. [p. 25]A, B.
Having regard for all the surrounding circumstances of the case and a fairly long period of the petitioner’s suspension he was ordered to be reinstated straightway. [p. 25]C.

P L D (Rev.) 1952 Punjab 33
Before Saidullah, Financial Commissioner
GHULAM RASUL —Petitioner
Verses
NAZAR MUHAMMAD —–Respondent
Appellate Side No. 18 of 1951-52, decided on 13th May, 1952.
Where once a person is passed over for appointment to the post of lambardari the question of his appointment on the score of hereditary right will not arise.
Where the dismissal of a Lambardar was affected as a result of a departmental equity which according to the concurrent findings of both the Collector and the Commissioner was not of such a nature as to ignore the claims of his son:
Held, there was no valid reason to ignore the unanimous findings for which cogent reasons existed for the appointment of the son as Lambardar in the vacancy caused by the removal of his father.

P L D (Rev.) 1952 Punjab 34
Before Saidullah, Financial Commissioner
NAWAB KHAN and 8 others —Petitioners
Verses
FATEH MUHAMMAD and others—–Respondents
Revision Side No. 240 of 1950-51, decided on 12th May, 1952.
By change of law in 1950 most of the cesses were done away with except that contained in section 2(2) of Punjab Tenancy Amendment Act (XVII of 1950).
The kamiana as laid down in the Wajib-ul-arz does not subsist in its original form and a provision has to be made for a cess in the light of the amended Act for payment of the chowkidar’s pay and the amount thereof appointed accordingly. [p. 36]B.

P L D (Rev.) 1952 Punjab 36
Before Saidullah, Financial Commissioner
JUMA —Appellant
Verses
HAKIM ALI and others—–Respondents
Revision Side No. 25 of 1951-52, decided on 16th May, 1952.
Where almost all the Khasra No. 387, 388, 389 and 391 comprising of an area of about 20 kanals are more or less equidistant from the village abadi and comprise one solid block. It is, therefore, exceedingly difficult to appreciate why a partition of this block comprising of Khasra No. 391 with an area of about 2 kanals and 13 marlas— all the Khasra Nos. being Chahi—should be classified separately to the exclusion of others.

P L D (Rev.) 1952 Punjab 38
Before Akhtar Hussain, Financial Commissioner
DOABA TRANSPORT CO (REGD.) LYALPUR —Appellant
Verses
REGIONAL TRANSPORT AUTHORITY, LAHORE —–Respondents
Appellate Side No. 276 of 1951-52, decided on 1st May, 1952.
Where, in the case of a private company, license was given for a period of one month only pending grant of permanent license “at next meeting”.
Held, that to have he permits of the affiliated vehicles verified and registered agreements regarding affiliation produced, were good reasons for grant of license for one month only.
There is nothing to prevent a forwarding agent being given licenses at two places under Rule 712 (A) (1) of the Punjab Motor Vehicles Rules, 1940, as amended.
A forwarding agent who has under his control not less than 30 public carrier permits, will certainly need sites at various places for he loading, unloading etc. of those vehicles. In the absence of any clear obligation on the part of clearing agents to whom certain vehicles are not affiliated to allow those vehicles the use of sites of which they are the licensees, for loading, unloading etc., what other arrangements can be made except to give opportunity to all forwarding agents to have as may sites at different places as are needed by them.

By The Josh and Mak Team

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