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Document Code: E5CC61A35F2FC1A8604BFC6E0681C72B
IN THE COURT OF VIth ADDITIONAL DISTRICT JUDGE, HYDERABAD

Succession Application No. 27 of 2019

Hassan Mehdi S/o Ch: Ghullam Mehdi

Muslim, adult, R/o Bungalow on Plot No.13
Survey No.142, Defense Officer Housing Society,
Cantonment, Hyderabad…………………………………………………….Applicant

Versus

1. Shahzeb Mehdi S/o Ch. Ghullam Mehdi

2. Miss. Ambreen Sami D/o Ch. Ghulam Mehdi
Both are Muslim, adults,R/o Bungalow on Plot No.13
Survey No.142, Defense Officer Housing Society,
Cantonment, Hyderabad
3. Mukhtiarkar City, Hyderabad
4. Station House Officer of Police Station
Cantonment, Hyderabad
5. Cantonment Board through its
Cantonment Executive Officer, Hyderabad
6. Public at Large………………………………………………………Opponent

Mrs. Razia Ali Zaman Patoli, advocate for the applicant

ORDER
02.02.2019

This order shall dispose of present succession application

U/s 373 of Succession Act, 1925 filed by the applicant in which it is

stated that deceased Mst. Naheed Akhter Mehdi, mother of applicant

and opponent No.1 & 2 died on 18.12.2018 leaving behind her,

applicant and opponent No.1 & 2. During life time of deceased, she

was maintaining Account No.01021198251 in Sonari Bank Main Saddar

Branch, Hyderabad and on credit and debt basis she was having a TDR

certificate in the said bank shown in the schedule annexed with the

application. The Applicant approached the concerned bank for

providing bank statement and issuance of certificate of shown account

but to no avail.

In support of the case, the affidavits of two independent

witnesses namely Abdul Rashid S/o Abdul Karim and Muhammad

Hassan S/o Ali Muhammad are filed, who have stated that there is no

other legal heir of deceased except the applicant and opponent Nos.1

and 2. Apart from this, affidavits of opponent Nos. 1 & 2 are also filed,

who have extended their no objection in favour of applicant.

Heard learned counsel and perused the material available

on record.

The applicant has prayed for succession certificate in

favour of applicant and opponent No.1 & 2 to receive the TDR

certificate from the bank as shown in the schedule annexed with

application. The notice was published in daily newspaper express

Karachi dated 25.01.2019, however, nobody has come forward to

object to the prayer made by the applicant. In addition to this, report

was called from Mukhtiarkar concerned who vide his letter dated

20.1.2019 reported that deceased died on 18.12.2018 leaving behind

the applicant and opponent No.1 & 2 as her legal heirs. This is what

which is reported by SHO Police Station Cantonment vide letter dated

01.02.2019. However, the Deputy Director NADRA Hyderabad Zone in

his report dated 19.1.2019 has shown family details of deceased as

applicant, opponent No.1 and her husband. In addition to this Soneri

Bank Limited, Hyderabad in his report dated 31.1.2019 stated that the

deceased was having three accounts bearing Accounts

No.20001029108, 20005498229 and 20006081402 and so also one

TDR issued from Account No.200054982297. He has also shown in his

report the principle outstanding with mark-up as on 31.1.2019.

It is matter of record that the applicant has coated wrong

account number in the application and further as per NADRA report

opponent No.2 is not shown as daughter of deceased. Learned counsel

for the applicant states that he has also filed suit for declaration of

deceased in which opponent No.2 in additional to other legal heirs is

shown as legal heirs and NADRA authorities has issued CNIC to

opponent No.2 which is also renewed by them. As regards the

accounts introduced in the bank report, learned counsel contends that

in fact the applicant was not having knowledge about the accounts of

the deceased in the said bank for which the applicant requested the

Soneri Bank for issuance of bank statement which was refused and

that even he himself issued letters to Bank but no avail. Be that it may,

the accounts introduced in bank report are shown to had been run by

the deceased in her life time so mere mentioning wrong account

number, the applicant cannot be penalized nor NADRA report may be

presumed to be conclusive proof specially when the opponent No.2 is

possessing CNIC and further the same appears to have been renewed

also through Pakistan Embassy as she is reported to be residing

abroad. Furthermore, the applicant and opponent No.2 themselves do

admit the opponent No.2 as their real daughter. Therefore, for the

aforesaid reasons, the application is allowed. The Accountant District

and Sessions Court, Hyderabad is appointed as commissioner with

directions to withdraw the TDR certificate with sums lying in the above

three accounts of deceased and disburse the same to the heirs of

deceased Mst.Naheed Akhter according to their respective shares

subject to furnishing P.R. Bond of the applicant in equivalent amount

shown in the balance of the deceased and such report be submitted

before this court within 30 days. The applicant is directed to deposit

Rs.8,000/= as commissioner fee.

Pronounced in open Court.

Given under my hand and the seal of this Court.
On this 2nd day of February, 2019.

(MUHAMMAD FAZIL BOHIO)

VIth Additional District Judge, Hyderabad
IN THE COURT OF VITH ADDITIONAL SESSIONS JUDGE, HYDERABAD
Sessions Case No.57 OF 2007

The State-----------------------------------------Vs.-------------------------Haji Dodo & others.

Ghous Bux S/o Lal Bux Jatoi…………………………………………..……….…..…………… Accused

Crime No.112/2006
PS:Pinyari
U/S:324,147, 148, 149, 504 PPC
Mr. Muhammad Umar Laghari, advocate for the accused.
Ms. Shazia Umrani, A.D.P.P for the State.
Mr. Muhammad Saleem Laghari, Advocate for the complainant.

ORDER ON APPLICATION U/S 345(ii) Cr.P.C.

ORDER
14.01.2019
Heard arguments of learned counsel for accused, learned D.D.P.P for
the State, also perused the material available on record and further heard the
complainant Dadan Khan Chandio in person.
Learned counsel for the respective parties and parties concerned seek
permission to compound the offence on the ground that both the parties have
patched the dispute on the intervention of Nekmards and they intend to maintain
cordial relations in future.
Learned A.D.P.P has submitted that since main offence is
compoundable, therefore, she has no objection if permission is accorded to
compound the offence.
It appears that both the sides are willing for initiating the mediation
process in order to resolve the dispute amicably and according to them, they want
to live peacefully in future and maintain cordial relations to each-others.
Honourable Apex Courts have encouraged the compromise process in the matters
where the offence is made compoundable in schedule attached to the Cr.P.C.
Learned A.D.P.P recorded his no objection for grant of permission. Accordingly,
instant application stands allowed and permission is granted to the parties to make
mediation process for compounding the offences.
ANNOUNCED IN OPEN COURT
Given under my hand and the seal of the Court this 14 th day of January,
2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL: SESSIONS JUDGE, HYDERABAD
 HOW TO VERIFY THIS DOCUMENT
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7008AC1ABEADC0C0D10EC2CED4C10705

IN THE COURT OF VITH ADDITIONAL SESSIONS JUDGE, HYDERABAD

Sessions Case No.57 OF 2007

The State-----------------------------------------Vs.-------------------------Haji Dodo & others.

Ghous Bux S/o Lal Bux Jatoi…………………………………………..……….…..…………… Accused
Crime No.112/2006
PS: Pinyari
U/S: 324,147, 148, 149, 504 PPC
Mr. Muhammad Umar Laghari, advocate for the accused.
Ms. Shazia Umrani, A.D.P.P for the State.
Mr. Muhammad Saleem Laghari, Advocate for the complainant.

ORDER ON APPLICATION U/S 345(vi) Cr.P.C.

ORDER
14.01.2019
Heard arguments of learned counsel for accused, learned A.D.P.P for the
State, also perused the material available on record and further heard the complainant
Dadan Khan Chandio in person.
Learned counsel for the respective parties and parties concerned seek for
passing of an order accepting the compromise arrived at in between the parties as they
have patched up matter with prior permission of this court, therefore, compromise may be
accepted and thereby accused be acquitted.
Learned A.D.P.P has submitted that since main offence is compoundable and
parties have settled their differences outside the Court, therefore, she withdrew the non-
compoundable offences.
Record shows that after usual investigation, challan was submitted in the
court of area Magistrate showing all the accused including that of applicant / accused as
absconding, who after declaring them as proclaimed offenders sent up the R&Ps to the
Honourable District & Sessions Court, Hyderabad on jurisdiction ground and subsequently
the R&Ps were received by way of transfer for its disposal according to law. Subsequently,
co-accused Haji Dodo, Mashooque Ali and Azam Chandio surrendered and faced the trial
and as a result of that were acquitted by this Court vide judgment dated 18.08.2009, U/S.
265-H(i) Cr.P.C. by ordering the case of present accused and so also co-accused Ghulam
Sarwar to be kept on dormant file. On 15.06.2017, applicant / accused surrendered before
Honourable Sessions Judge, Hyderabad, after getting protective bail from the Honourable
High Court of Sindh, Circuit Court, Hyderabad. He filed interim pre-arrest bail, which was
allowed and later on confirmed by this Court vide order dated 10.07.2017. Charge charge
was also framed upon him vide EX.21 on 12-01-2019 and today the case was fixed for
recording evidence of prosecution witnesses when both sides appeared and pressed for
order on instant application for compounding of the offences, which was already filed.
It appears that both sides have patched up and settled their differences
outside the court with prior permission of this Court and complainant Dadan Khan Chandio
 -2-

has affirmed such compromise stating further that they in order to maintain harmonious
relations have entered to amicable settlement with the accused and he has waived off right
of Qisas. Admittedly, main offence U/S. 324 PPC is shown as compoundable in the schedule
attached to the Cr.P.C. Learned A.D.P.P has already recorded her no objection. In these
circumstances and in the interest of justice, compromise is accepted. Accordingly, accused
Ghous Bux S/o Lal Bux Jatoi is acquitted. Heis present on bail, his bail bond stands cancelled
and surety is discharged. The case against absconding accused Ghulam Sarwar be kept on
dormant file in consequences to judgment dated 18.08.2009.
ANNOUNCED IN OPEN COURT
Given under my hand and the seal of the Court this 14 th day of January,
2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL: SESSIONS JUDGE, HYDERABAD
IN THE COURT OF VITH ADDITIONAL SESSIONS JUDGE, HYDERABAD
Sessions Case No.941 OF 2015

The State-----------------------------------------Vs.---------------Shahzado @ Shedo & others

-x-x-x-x-
Amjad @ Amji S/o Haji Roshan Nizamani………………………..……….Applicant/Accused
Crime No.41/2015
PS:Tando Jam
U/S: 324, 353, 34 PPC
Ms. Samina Ajmaree, advocate for the applicant / accused.
Ms. Shazia Umrani, A.D.P.P for the State.

ORDER ON APPLICATION U/S 265-K Cr.P.C.

ORDER
14.01.2019

This order shall dispose of an application filed U/S 265-K Cr.P.C by

applicant/accused Amjad @ Amji through his learned counsel praying for his
acquittal on the ground that co-accused have been acquitted by this court vide
judgment dated 17.10.2016 as police with malafide intention involved him, firing
allegedly made went ineffective which also create a reasonable doubt in the
prosecution story; no specific role has been assigned to the applicant/accused; the
accused neither was present at the place of incident nor committed any offence;
allegations are general in nature; there is no evidence available against the
applicant/accused to connect him with the commission of offence;
applicant/accused is innocent and falsely involved and charge against him is
groundless and that there is no probability of his being convicted of any offence,
therefore, he may be acquitted.
Record shows that co-accused Shahzado @ Shedo and Muhammad
Hassan are already acquitted by this Court vide judgment dated 17.10.2016 by
keeping the case of present applicant / accused on dormant file. Thereafter present
applicant / accused was arrested and produced before this Court through
supplementary challan dated 06.10.2018 and subsequently day police papers were
supplied to him and charge was framed upon him. Today the matter was fixed for
evidence when learned counsel for applicant/accused appeared and submitted the
above application and notice whereof has been received by the State.
Learned counsel for applicant/accused in her arguments mostly
reiterated the grounds of her application and further contended that there will be
 -2-

no fruitful result if the case is proceeded on merit especially in view of the fact that
co-accused have already been acquitted and that the role against the present
applicant/accused is same to that of the role against co-accused.
Learned A.D.P.P for the State argued that dismissing the present
application, matter be proceeded and decided on merit after recording the evidence
of prosecution witnesses. However, he argued that if the witnesses are brought and
examined, they would adopt their earlier statements recorded by this court.
I have heard learned counsel for applicant/accused, learned A.D.P.P
for the State and further have gone through the material available on record.
The very charge against the applicant/accused is that on 18.03.2015
at 2130 hours at link road coming from Tando Jam to Tando Qaiser, he alongwith
acquitted co-accused Shahzado @ Shedo and Muhammad Hassan duly armed with
deadly weapons, deterred the police party of Tando Jam headed by SIP Muhammad
Usman Hingoro from discharging of their official duty being public servant and
further made direct firing upon the police party under such circumstances that if by
that act he has committed Qatl of police party, he would have been guilty of Qatl-i-
Amd and further used criminal force and insulted the complainant party and his
witnesses.
Admittedly, this Court examined two official witnesses in absence of
present applicant/accused and on the basis of such evidence acquitted co-accused
Shahzado @ Shedo and Muhammad Hassan vide judgment dated 17.10.2016
keeping the case against present applicant/accused on dormant record. Learned
A.D.P.P for the State has argued that if prosecution witnesses are brought and
examined they would adopt their earlier statements, therefore, I have no alternate
but to visit the evidence of official witnesses already recorded and pass a proper
order. A close look at the evidence of prosecution witnesses shows that they have
miserably failed to connect the applicant/accused with the commission of offence
though it was recorded in absence of applicant/accused. According to complainant
empties of encounter were not produced by them at either PS or before the Court
during evidence and no person received any injury during encounter, though the
same continued for seven minutes. He further deposed that after preparing the
memorandum of arrest and recovery he sealed case property while memorandum
expresses about the seal of case property. Further firing allegedly made by
applicant/accused also went infective. To my humble opinion charge against the
applicant/accused, in view of above discussion, has not only become groundless but
there appears no probability of the applicant/accused of his being convicted of any
offence. In the circumstances, I am of the considered view that there is no
probability of applicant/accused
Mann @ Murad S/o Khan Muhammad to be convicted of any offence as the charge
against him has become groundless. Accordingly, this application is allowed thereby
applicant/accused Mann @ Murad S/o Khan Muhammad is acquitted U/S 265-k
Cr.P.C. He is present on bail, his bail bond stands cancelled and surety discharged.
Announced in open Court.
Given under my hand and the seal of the Court this 08 th day of May,
2018.

(Muhammad Fazil Bohio)

3rd Assistant Sessions Judge,
Mirpurkhas
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IN THE COURT OF VITH ADDITIONAL SESSIONS JUDGE, HYDERABAD

Sessions Case No.941 OF 2015

The State-----------------------------------------Vs.---------------Shahzado @ Shedo & others

-x-x-x-x-
Amjad @ Amji S/o Haji Roshan Nizamani………………………..……….Applicant/Accused
Crime No.41/2015
PS: Tando Jam
U/S: 324, 353, 34 PPC
Ms. Samina Ajmaree, advocate for the applicant / accused.
Ms. Shazia Umrani, A.D.P.P for the State.

ORDER ON APPLICATION U/S 265-K Cr.P.C.

ORDER
14.01.2019
This order shall dispose of an application filed U/S 265-K Cr.P.C by
applicant/accused Amjad @ Amji through his learned counsel praying for his
acquittal on the ground that applicant / accused has concern with the commission of
offence, the material witnesses have been examined and they have not implicated
the applicant / accused, ingredients of Section 324, 353 PPC are lacking, therefore,
he may be acquitted.
Record shows that co-accused Shahzado @ Shedo and Muhammad
Hassan are already acquitted by this Court vide judgment dated 17.10.2016 by
keeping the case of present applicant / accused on dormant file. Thereafter present
applicant / accused was arrested and produced before this Court through
supplementary challan dated 06.10.2018 and copies of police papers were supplied
to him. Today the matter was fixed for framing the charge and before it could be
framed, learned counsel for applicant/accused appeared and submitted the above
application and notice whereof has been received by the State.
Learned counsel for applicant/accused in her arguments mostly
reiterated the grounds of her application and further contended that there will be
no fruitful result if the case is proceeded on merit especially in view of the fact that
co-accused have already been acquitted and that the role against the present
applicant/accused is same to that of the role against co-accused.
Learned A.D.P.P for the State argued that dismissing the present
application, charge may be framed upon the applicant / accused and matter be
proceeded and decided on merit after recording evidence of prosecution witnesses.
I have heard learned counsel for applicant/accused, learned A.D.P.P
for the State and further have gone through the material available on record.
The very charge against the applicant/accused is that on 18.03.2015
at 2130 hours at link road coming from Tando Jam to Tando Qaiser, he alongwith
 -2-
acquitted co-accused Shahzado @ Shedo, Muhammad Hassan and absconding co-
accused Ahmed Mirjat duly armed with deadly weapons, deterred the police party of
Tando Jam headed by SIP Muhammad Usman Hingoro from discharging of their
official duty being public servant and further made direct firing upon the police
party under such circumstances that if by that act he has committed Qatl of police
party, he would have been guilty of Qatl-i-Amd and further used criminal force and
insulted the complainant party and his witnesses.
Admittedly, this Court examined two official witnesses in absence of
present applicant/accused and on the basis of such evidence acquitted co-accused
Shahzado @ Shedo and Muhammad Hassan vide judgment dated 17.10.2016
keeping the case against present applicant/accused on dormant record. If these
prosecution witnesses are brought and examinedcertainly, they would not change
their earlier statements, therefore, I have no alternate but to visit the evidence of
official witnesses already recorded and pass a proper order. A close look at the
evidence of prosecution witnesses shows that they have miserably failed to connect
the applicant/accused with the commission of offence though it was recorded in his
absence. According to complainant they identified the accused with the help of torch
light at the distance of 20/30 paces, yet mashir of the incident has not supported the
said version. It is deposed by complainant that the empties of such shootout has not
been produced, though, mashir of the incident admitted that they took empties from
place of incident after encounter. Complainant admitted that empties of encounter
were not produced by them either Police Station or before the Court during
evidence and no person received any injury during encounter. He further deposed
that after preparing the memorandum of arrest and recovery he sealed case
property while memorandum expresses about the seal of case property. Further
firing allegedly made by applicant/accused also went infective. To my humble
opinion charge against the applicant/accused, in view of above discussion, has not
only become groundless but there appears no probability of the applicant/accused
of his being convicted of any offence. In the circumstances, I am of the considered
view that there is no probability of applicant/accused Amjad & Amji S/o Haji
Roshan Nizamani to be convicted of any offence as the charge against him has
become groundless. Accordingly, this application is allowed thereby
applicant/accused Amjad @ Amji S/o Haji Roshan Nizamani is acquitted U/S 265-k
Cr.P.C. He is produced in custody, he is remanded to custody with directions to Jail
authorities to release him forthwith if he is not required in any other custody
case/crime.
Announced in open Court.
Given under my hand and the seal of the Court this 14 th day of January,
2018.
(MUHAMMAD FAZIL BOHIO)
VITH ADDL: SESSIONS JUDGE, HYDERABAD
 HOW TO VERIFY THIS DOCUMENT
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QReader Software
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dc.php Document Code: E5CC61A35F2FC1A8604BFC6E0681C72B
IN THE COURT OF VIth ADDITIONAL DISTRICT JUDGE, HYDERABAD

Succession Application No. 27 of 2019

Hassan Mehdi S/o Ch: Ghullam Mehdi

Muslim, adult, R/o Bungalow on Plot No.13
Survey No.142, Defense Officer Housing Society,
Cantonment, Hyderabad…………………………………………………….Applicant

Versus

1. Shahzeb Mehdi S/o Ch. Ghullam Mehdi

2. Miss. Ambreen Sami D/o Ch. Ghulam Mehdi
Both are Muslim, adults,R/o Bungalow on Plot No.13
Survey No.142, Defense Officer Housing Society,
Cantonment, Hyderabad
3. Mukhtiarkar City, Hyderabad
4. Station House Officer of Police Station
Cantonment, Hyderabad
5. Cantonment Board through its
Cantonment Executive Officer, Hyderabad
6. Public at Large………………………………………………………Opponent

Mrs. Razia Ali Zaman Patoli, advocate for the applicant

ORDER
02.02.2019

This order shall dispose of present succession application

U/s 373 of Succession Act, 1925 filed by the applicant in which it is

stated that deceased Mst. Naheed Akhter Mehdi, mother of applicant

and opponent No.1 & 2 died on 18.12.2018 leaving behind her,

applicant and opponent No.1 & 2. During life time of deceased, she

was maintaining Account No.01021198251 in Sonari Bank Main Saddar

Branch, Hyderabad and on credit and debt basis she was having a TDR

certificate in the said bank shown in the schedule annexed with the

application. The Applicant approached the concerned bank for

providing bank statement and issuance of certificate of shown account

but to no avail.

In support of the case, the affidavits of two independent

witnesses namely Abdul Rashid S/o Abdul Karim and Muhammad

Hassan S/o Ali Muhammad are filed, who have stated that there is no

other legal heir of deceased except the applicant and opponent Nos.1

and 2. Apart from this, affidavits of opponent Nos. 1 & 2 are also filed,

who have extended their no objection in favour of applicant.

Heard learned counsel and perused the material available

on record.

The applicant has prayed for succession certificate in

favour of applicant and opponent No.1 & 2 to receive the TDR

certificate from the bank as shown in the schedule annexed with

application. The notice was published in daily newspaper express

Karachi dated 25.01.2019, however, nobody has come forward to

object to the prayer made by the applicant. In addition to this, report

was called from Mukhtiarkar concerned who vide his letter dated

20.1.2019 reported that deceased died on 18.12.2018 leaving behind

the applicant and opponent No.1 & 2 as her legal heirs. This is what

which is reported by SHO Police Station Cantonment vide letter dated

01.02.2019. However, the Deputy Director NADRA Hyderabad Zone in

his report dated 19.1.2019 has shown family details of deceased as

applicant, opponent No.1 and her husband. In addition to this Soneri

Bank Limited, Hyderabad in his report dated 31.1.2019 stated that the

deceased was having three accounts bearing Accounts

No.20001029108, 20005498229 and 20006081402 and so also one

TDR issued from Account No.200054982297. He has also shown in his

report the principle outstanding with mark-up as on 31.1.2019.

It is matter of record that the applicant has coated wrong

account number in the application and further as per NADRA report

opponent No.2 is not shown as daughter of deceased. Learned counsel

for the applicant states that he has also filed suit for declaration of

deceased in which opponent No.2 in additional to other legal heirs is

shown as legal heirs and NADRA authorities has issued CNIC to

opponent No.2 which is also renewed by them. As regards the

accounts introduced in the bank report, learned counsel contends that

in fact the applicant was not having knowledge about the accounts of

the deceased in the said bank for which the applicant requested the

Soneri Bank for issuance of bank statement which was refused and

that even he himself issued letters to Bank but no avail. Be that it may,

the accounts introduced in bank report are shown to had been run by

the deceased in her life time so mere mentioning wrong account

number, the applicant cannot be penalized nor NADRA report may be

presumed to be conclusive proof specially when the opponent No.2 is

possessing CNIC and further the same appears to have been renewed

also through Pakistan Embassy as she is reported to be residing

abroad. Furthermore, the applicant and opponent No.2 themselves do

admit the opponent No.2 as their real daughter. Therefore, for the

aforesaid reasons, the application is allowed. The Accountant District

and Sessions Court, Hyderabad is appointed as commissioner with

directions to withdraw the TDR certificate with sums lying in the above

three accounts of deceased and disburse the same to the heirs of

deceased Mst.Naheed Akhter according to their respective shares

subject to furnishing P.R. Bond of the applicant in equivalent amount

shown in the balance of the deceased and such report be submitted

before this court within 30 days. The applicant is directed to deposit

Rs.8,000/= as commissioner fee.

Pronounced in open Court.

Given under my hand and the seal of this Court.
On this 2nd day of February, 2019.

(MUHAMMAD FAZIL BOHIO)

VIth Additional District Judge, Hyderabad
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2A2F76C9AA6E20A4A6831DBAC6FAF18D

IN THE COURT OF VITH ADDITIONAL DISTRICT

JUDGE, HYDERABAD.
First Rent Appeal No.27 of 2018

Ashraf Sunny S/o Late Muhammad Asghar (Minor)

through uncle Imran S/o Ali Muhammad Rajput
Muslim, adult, Tenant in respect of Shop No.03-F/1166/2-1
Qazi Abdul Qayoom Road, Hyderabad.………………………...

………………...Appellant.

VERSUS

1. Manzoor Hussain Qureshi S/o Muhammad Ismail

through LRs;-
a) Musthaque Fatima Widow
b) Sajid Manzoor Son
c) Farrukh Manzor Son
d) Erum Manzoor Daughter
e) Kiran Manzoor Daughter
f) Sana Manzoor Daughter
All Adults, Muslims, R/o Flat No.09, united Center
Block “L” North Nazimabad Karachi
2. Muzaffar Ali Qureshi S/o Muhammad Ismail
3. Mst. Ameer Begum D/o Muhammad Ismail
since deceased through legal heir Zulfiqar
S/o Ghulam Ali Mirza, All Muslims, adults,
R/o H.No.F/1166/2-1, Qazi Qayoom Road

Hyderabad………………………………………………………………………………
…….Respondents.
Mr. Behzad Ali Umrani, learned counsel for the appellant.
Mr. Ahmed Murtuza A. Arab, learned counsel for respondent No.1.
None present for remaining respondents.
J U D G M E N T.
13-02-2019.
This First Rent Appeal is directed against the order dated
28.02.2018, passed by learned VIth Senior Civil Judge/Rent Controller,
Hyderabad, in Rent Application No.203 of 2015 (re-Manzoor Hussain
Qureshi Vs Ashraf Sunny), whereby the learned Rent Controller allowed
the rent application and directed the opponent to vacate the rented
shop in question within 60 days and handover its peaceful possession
to the applicants and also make payment of arrears of the rent.
2. The appeal was transferred to this Court by Honourable
District Judge, Hyderabad, on 17.01.2019 alongwith R&Ps for its
disposal according to law.
3. Succinctly, facts of Rent Application No.203 of 2015 filed
U/s 15 of Sindh Rented Premises Ordinance, 1979, are that the rented
shop bearing No.3 constructed over Plot No.F/1166/2-1 situated at Qazi
Abdul Qayoom Road, Gari Khata, Hyderabad, was let out to opponent
by the elder of
-2-
applicants namely Late Ali Bux S/o Ghulam Hussain vide rent
agreement dated 01.10.1984 at monthly rent of RS.450/- per month,
which was enhanced upto Rs.650/- per month in the year 1993. It is
further stated that the opponent was paying the monthly rent regularly
to said late Ali Bux and after his death he was paying the same to
applicant No.2 but subsequently he stopped the payment of rent and
thereby he committed default from February, 2005 to September,
2015. It is further pleaded that the rented shop is required to applicant
No.2 for his personal bonafide use as his service in SASSO stood
closed. It is further asserted that applicants sent legal notice dated
30.09.2015 to the opponent but he replied the same evasively, hence,
applicants filed instant rent application with the following prayers ;-
(a) it is therefore, prayed that this Honourable Court may be
pleased to direct the opponent to handover the vacant and
physical possession of rented premises / shop bearing No.3
constructed over plot No.F/1166/2-1 situated at Qazi Abdul
Qayoom Road, Gari Khata, Hyderabad in favour of
applicants as the same is required for the personal
bonafide need of applicant No.2 as opponent has made
willful default.

(b) The opponent be directed to deposit the arrears of rent as

well as current enhance rent Rs.1682/- from October, 2015
per month in the Honourable Court as required by law till
disposal of application;

(c) Any other relief(s) which this Honourable Court deems fits,
just and proper in favour of opponents.

(d) Cost of the case may be saddled upon the shoulders of

opponent.

4. After institution of the rent application, notices were issued

to the opponent and in response thereto, opponent filed written
objections wherein he denied the allegations of applicant stating that
the applicants suppressed the real facts from the Court as after they
refused to receive the monthly rent, he deposited the same in Court
and that he has not committed any default, hence, applicants have no
cause of action to file the present rent application, which is not
maintainable and the same is liable to be dismissed.
5. From the pleadings of the parties, the learned Rent
Controller settled the following points, for determination of the case.
 POINTS
1. Whether there is relationship of landlord and tenant
between the parties?

2. Whether the rented shop is required by the applicants for

their personal bonafide use?

3. Whether the opponent has committed default in payment

of monthly rent?

4. What should the order be?

-3-

6. In order to prove the case, both the parties led their

evidence and closed their side in evidence respectively.
7. After hearing both the parties counsel, learned trial Court
passed the impugned order whereby allowing the rent application.
8. Learned counsel for appellant, in his arguments repeating
the grounds of appeal, further argued that the appellant was tenant
in respect of the rented shop of respondents and he used to pay
monthly rent to one Ali Bux, the previous owner and thereafter he
started paying the same to respondent No.2. He further argued that
the appellant proved that he paid the rent to the respondents
regularly and thereafter through Court and the like evidence is not
appreciated by the trial Court. He further argued that the appellant
accepted that he already made payment of rent upto date so
question of default does not arise and as regards the personal
bonafide need, applicant No.2, attorney Muzaffar admitted that he
has not mentioned the nature of his business in the rent application
nor he has mentioned that he requires the demised shop for personal
use of his son and that he admitted too that applicant has two more
shops situated besides the rented shop. He further argued that the
appellant produced all the rent receipts in his evidence and
discharged the onus of proof successfully. He further argued that PW
Umair admitted that respondent has no experience for doing business
and that since last 07 years, appellant/opponent is doing business in
the rented shop, therefore, appeal may be allowed and order passed
by trial Court be set-aside.
9. On the other hand, learned counsel for respondents
argued that appeal is not maintainable, no ground is shown as to how
the appeal lies or is maintainable, it is the choice of landlord to seek
eviction of the premises, which he wants. He further argued that
respondent No.2, attorney Muzaffar deposed that rent receipt dated
04.09.2015 annexed to written reply, does not bear his signature
meaning thereby it was falsely made available. He further argued
that the rent receipts, which are hand written, are jolly one having
been prepared at one time, place and with same pen for which
opponent admitted that he sent three money orders in 10 days but
after filing of the rent application, which is an admitted default in
payment of rent. He further argued that opponent watching receipts
dated 01.10.2013 and 04.02.2015 deposed that the same might have
different signatures and this is the malafide on the part of opponent
who manufactured the same, therefore, appeal may be dismissed. He
relied upon the case law reported as 2018 SCMR 1441
 -4-

10. I have heard learned counsel for the parties at length and
gone through the relevant record carefully.
Now point for determination of the lis, are as under:

POINTS
(i) Whether impugned order dated 28.02.2018 requires
any interference of this Court.?.

(ii) What should the judgment be?

My findings on points (I) and (II) are as under:-

FINDINGS
POINT NO.I In negative.
POINT NO.II Appeal dismissed.

REASONS
POINT NO.I

11. Per contents of rent application and evidence brought on

record, the eviction of the opponent / tenant was sought on the two
grounds viz. personal bonafide use and the default in payment of rent.
As regards the ground of personal use, the applicant No.2/ landlord,
theattorney of remaining applicants, in his affidavit in evidence
deposed that the rented shop was required for his personal bonafide
use and that the opponent / tenant committed default in payment of
rent and this is what which was deposed by him in his cross. The
opponent/tenant filed his affidavit in evidence also and he in his cross
admitted that he has no knowledge that Muzafar Hussain Qureshi has
no source of income at present and he has seven sons and further
shown his ignorance that his those sons are jobless and due to which
he could not get them married. He also shown his ignorance that
Muzafar Hussain Qureshi intends to start his business in the rented
shop with his sons. It is also an admitted position in the evidence that
applicant Muzafar Hussain Qureshi having job in SASSO, had come to
an end and he is jobless. Furthermore, the applicants / landlords are
admittedly the registered owners of the rented premises. If it is so,
Section 15(2)(vii) of SRPO 1979 gives unfettered right to the
applicants/landlords to get the rented shop vacated for their own
occupation or use or occupation of their spouses or any of their
children. In the case law (supra) reported as 2018 SCMR 1441, it has
been held that;-
“Sole testimony of landlord was sufficient to establish
personal bona fide need, if such statement of landlord was
consistent with averments made in ejectment application---
Impugned order being in accordance with such principle of
law, leave to appeal was refused by Supreme Court”.
 -5-
So far ground of default in payment of rent, the applicant
deposed in his affidavit in evidence that the opponent / tenant made
default in payment of rent from February, 2005 to September, 2015.
He given legal notices to the opponent / tenant and some of them were
replied. In his cross, he watching the receipt dated 04.09.2015
annexed with the written reply deposed that it does not bear his
signature and rent sent to him through money order by the opponent
was refused by him and the opponent/tenant started depositing the
same in the Court, however, he made voluntarily disclosure that the
opponent/tenant started depositing the rent since September 2015.
The opponent / tenant he in his cross watching the receipts filed by
him with his affidavit in evidence vide Ex.40/B-1 to Ex.40/B-21 dated
06.10.2011 to 04.09.2015 shown his ignorance that these receipts are
written with one pen and ink on similar papers and further shown his
ignorance that these receipts bore forged signatures of Muzafar
Hussain Qureshi. He denied that these receipts are forged one but
admitted that such fact he did not mention in his affidavit in evidence
as well as in his written reply to rent application. As far as the rent sent
through money order, he admitted that he sent first money order on
26.11.2015 for two months rent while the rent application was filed on
27.05.2015. Thus, it stood proved that he sent money order after filing
of rent application and this is what which is admitted by him also.
Though, the opponent/tenant claimed that he sent the rent through
receipts dated 06.10.2011 to 04.09.2015 but admitted that nothing
like this is mentioned in his reply of legal notice in respect of those
receipts. He admitted that he in his reply of legal notice dated
12.10.2015, has not mentioned that he is not defaulter in payment of
rent. If it is so, the opponent/tenant committed default in payment of
rent. Thus from the above discussion, it appears that the
applicants/landlord remained consistent with the averments made in
the ejectment application. I therefore, hold that the impugned order
does not require interference by this Court, hence, point No.1 is replied
in negative.

POINT NO.II
12. In the light of the discussion aforesaid, instant appeal
stands dismissed, therefore, order passed by learned trial court/Rent
Controller shall hold the field. The parties to bear their own costs. The
restraining order dated 04.02.2019 passed by this Court is vacated. Let
certified true copy of order be transmitted to learned Rent Controller
alongwith R&Ps.
 Announced in open court,
Given under my hand & seal of this Court, this the 13thday of February, 2018

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.

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D0386982C5E4BF6D551E53B8D581EA32
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.

First Rent Appeal No.28 of 2018

Haji Abdul Rehman S/o Phool Khan

through son Irfan Ahmed Qureshi
S/o Haji Abdul Rehman Qureshi
Muslim, adult, Tenant in respect of Shop No.02-F/1166/2-1
Qazi Abdul Qayoom Road, Hyderabad.………………………...

…………………...Appellant.

VERSUS

1. Manzoor Hussain Qureshi S/o Muhammad Ismail

through LRs;-
a) Musthaque Fatima Widow
b) Sajid Manzoor Son
c) Farrukh Manzor Son
d) Erum Manzoor Daughter
e) Kiran Manzoor Daughter
f) Sana Manzoor Daughter
All Adults, Muslims, R/o Flat No.09, united Center
Block “L” North Nazimabad Karachi
2. Muzaffar Ali Qureshi S/o Muhammad Ismail
3. Mst. Ameer Begum D/o Muhammad Ismail
since deceased through legal heir Zulfiqar
S/o Ghulam Ali Mirza, All Muslims, adults,
R/o H.No.F/1166/2-1, Qazi Qayoom Road

Hyderabad………………………………………………………………………………
…….Respondents.
Mr. Behzad Ali Umrani, learned counsel for the appellant.
Mr. Ahmed Murtuza A. Arab, learned counsel for
respondent No.1.
None present for remaining respondents

J U D G M E N T.
13-02-2019.

This First Rent Appeal is directed against the order dated

28.02.2018, passed by learned VIth Senior Civil Judge/Rent Controller,
Hyderabad, in Rent Application No.204 of 2015 (re-Manzoor Hussain
Qureshi & others Vs Haji Abdul Rehman), whereby the learned Rent
Controller allowed the rent application and directed the opponent to
vacate the rented shop in question within 60 days and handover its
peaceful possession to the applicants and also make payment of
arrears of the rent.
2. The appeal was transferred to this Court by Honourable
District Judge, Hyderabad, on 17.01.2019 alongwith R&Ps for its
disposal according to law.
3. Succinctly, facts of Rent Application No.204 of 2015 filed
U/s 15 of Sindh Rented Premises Ordinance, 1979, are that the rented
shop bearing No.2 constructed over Plot No.F/1166/2-1 situated at Qazi
Abdul Qayoom Road, Gari Khata, Hyderabad, was let out to opponent
by the elder of
 -2-
applicants namely Late Ali Bux S/o Ghulam Hussain in the year 1984 at
monthly rent of RS.450/- per month, which was enhanced upto
Rs.1050/- per month in the year 1995. It is further stated that the
opponent was paying the monthly rent regularly to said late Ali Bux
and after his death he was paying the same to applicant No.2 but
subsequently he stopped the payment of rent and thereby he
committed default from July 2015 to October, 2015. It is further
pleaded that the rented shop is required to applicant No.2 for his
personal bonafide use as his service in SASSO stood closed. It is further
asserted that applicants sent legal notice dated 30.09.2015 to the
opponent but he replied the same evasively, hence, applicants filed
instant rent application with the following prayers ;-
(a) it is therefore, prayed that this Honourable Court may be
pleased to direct the opponent to handover the vacant and
physical possession of rented premises / shop bearing No.2
constructed over plot No.F/1166/2-1 situated at Qazi Abdul
Qayoom Road, Gari Khata, Hyderabad in favour of
applicants as the same is required for the personal
bonafide need of applicants as well as opponent has made
default from July, August, September 2015.
(b) The opponent be directed to deposit the arrears of rent in
the Honourable Court as required by law and future rent of
Rs.1050/- per month from October 2015 till handing over
the possession of demised rented premises / shop No.2;
(c) Any other relief(s) which this Honourable Court deems fit,
just and proper in favour of opponents/tenant.
(d) Cost of the case may be saddled upon the shoulders of
opponent/ tenant.

4. After institution of the rent application, notices were issued

to the opponent and in response thereto, opponent filed written
objections wherein he denied the allegations of applicant stating stated
that the applicants suppressed the real facts from the Court asafter
they refused to receive the monthly rent,he deposited the same in
Court and that he has not committed any default, hence, applicants
have no cause of action to file the present rent application, which is
not maintainable and the same is liable to be dismissed.
5. From the pleadings of the parties, the learned Rent
Controller settled the following points, for determination of the case.
POINTS
1. Whether there is relationship of landlord and tenant
between the parties?

2. Whether the rented shop is required by the applicants for

their personal bonafide use?
 3. Whether the opponent has committed default in payment
of monthly rent?

4. What should the order be?

-3-

6. In order to prove the case, both the parties led their

evidence and closed their side in evidence respectively.
7. After hearing both the parties counsel, learned trial Court
passed the impugned order whereby allowing the rent application.
8. Learned counsel for appellant, in his arguments repeating
the grounds of appeal, further argued that the appellant was tenant
in respect of the rented shop of respondents and he used to pay
monthly rent to one Ali Bux, the previous owner and thereafter he
started paying the same to respondent No.2. He further argued that
the appellant proved that he paid the rent to the respondents
regularly and thereafter through Court and the like evidence is not
appreciated by the trial Court. He further argued that the appellant
accepted that he already made payment of rent upto date so
question of default does not arise and as regards the personal
bonafide need, applicant No.2, attorney Muzaffar admitted that he
has not mentioned the nature of his business in the rent application
nor he has mentioned that he requires the demised shop for personal
use of his son and that he admitted too that applicant has two more
shopssituated besides the rented shop. He further argued that the
appellant produced all the rent receipts in his evidence and
discharged the onus of proof successfully. He further argued that PW
Umair admitted that respondent No.2 has no experience for doing
business and that since last 07 years, appellant / opponent is doing
business in the rented shop, therefore, appeal may be allowed and
order passed by trial Court be set-aside.
9. On the other hand, learned counsel for respondents
argued that appeal is not maintainable, no ground is shown as to how
the appeal lies or is maintainable, it is the choice of landlord to seek
eviction of the premises, which he wants. He further argued that rent
receipt dated 01.08.2015 for three months rent annexed to written
replyis false and does not bear signature of respondent No.2. He
further argued that the rent receipts, which are hand written,arejolly
one having been prepared at one time, place and with same pen for
which witness opponent admitted that he sent three money orders in
10 days but after filing of the rent application, which is an admitted
default in payment of rent, therefore, appeal may be dismissed. He
relied upon the case law reported as 2018 SCMR 1441.
10. I have heard learned counsel for the parties at length and
gone through the relevant record carefully.
 -4-

Now point for determination of the lis, are as under:

POINTS

(i) Whether impugned order dated 28.02.2018 requires

any interference of this Court.?.

(ii) What should the judgment be?

My findings on points (I) and (II) are as under:-

FINDINGS
POINT NO.I In negative.
POINT NO.II Appeal dismissed.

REASONS
POINT NO.I

11. Per contents of rent application and evidence brought on

record, the eviction of the opponent / tenant was sought on the two
grounds viz. personal bonafide use and the default in payment of rent.
The applicant No.2/ landlord and attorney of remaining applicants, in
his affidavit in evidence deposed that the rented shop was required for
his personal bonafide use and that the opponent / tenant committed
default in payment of rent and this is what which was deposed by him
in his cross. The attorney of opponent / tenant filed his affidavit in
evidence also and he in his cross denied that from July 2015 till
October 2015 opponent did not pay the rent of the shop and is
defaulter and receipt dated 01.08.2015 for rent of three months is
false. He admitted that all receipts except receipt dated 01.08.2015
bear stamp of two rupees revenue. He further admitted that:-
“it is correct applicants have sent a legal notice to me
dated 30.09.2015 . It is correct in the said legal notice it
was mentioned that I am a defaulter and applicant require
the shop for their personal use. It is correct I have also sent
reply of this legal notice through my advocate on
12.10.2015. It is correct I have not mentioned anything in
respect of receipts which I have produced before this Court
with affidavit. It is correct said legal notice it was clearly
mentioned that I am a defaulter for payment of rent for
July, August and September, 2015. It is correct that I have
not mentioned in my reply of legal notice that I am not a
defaulter in respect of payment rent from July, August
September, 2015. It is correct I had also not filed the copy
of receipt dated 01.08.2015 alongwith my reply of legal
notice”.

He also admitted that present rent application was filed on

27.10.2015 and the Court issued rent receipt on 01.12.2015 and as per
this receipt he deposited three months rent from September to
November, 2015. He admitted too that since 2004 Muzaffar Hussain is
jobless and further he has seven sons, who are unmarried.
Furthermore, the applicants/landlord are
-5-

admittedly the registered owners of the rented premises. If it is so,

Section 15(2)(vii) of S.R.P.O, 1979 gives unfettered right to the
applicants/landlords to get the rented shop vacated for their own
occupation or use or occupation of their spouses or any of their
children.In the case law (supra) reported as 2018 SCMR 1441, it has
been held as under:-
“Sole testimony of landlord was sufficient to establish
personal bona fide need, if such statement of landlord was
consistent with averments made in ejectment application---
Impugned order being in accordance with such principle of
law, leave to appeal was refused by Supreme Court”.

Thus in view of above discussion, I am of the considered

view that the applicants / landlords remained consistent with the
averments made in the rent application. I therefore, hold that the
impugned order does not require interference by this Court, hence,
point No.1 is replied in negative.

POINT NO.II
12. In the light of the discussion aforesaid, instant appeal
stands dismissed, therefore, order passed by learned trial court/Rent
Controller shall hold the field. The parties to bear their own costs. The
restraining order dated 04.02.2019 passed by this Court is vacated. Let
certified true copy of order be transmitted to learned Rent Controller
alongwith R&Ps.
Announced in open court,
Given under my hand & seal of this Court, this the 13th day of February, 2018

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
 HOW TO VERIFY THIS DOCUMENT
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99ADF9D2243C5BD69D28456E2768D385

IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,

HYDERABAD.

First Rent Appeal No.29 of 2018

Juma Khan S/o Muhammad Umer

Muslim, adult, Tenant in respect of Shop No.01-F/1166/2-1
Qazi Abdul Qayoom Road, Hyderabad.………………………...

………………...Appellant.

VERSUS

1. Manzoor Hussain Qureshi S/o Muhammad Ismail

through LRs;-
a) Musthaque Fatima Widow
b) Sajid Manzoor Son
c) Farrukh Manzor Son
d) Erum Manzoor Daughter
e) Kiran Manzoor Daughter
f) Sana Manzoor Daughter
All Adults, Muslims, R/o Flat No.09, united Center
Block “L” North Nazimabad Karachi
2. Muzaffar Ali Qureshi S/o Muhammad Ismail
3. Mst. Ameer Begum D/o Muhammad Ismail
since deceased through legal heir Zulfiqar
S/o Ghulam Ali Mirza, All Muslims, adults,
R/o H.No.F/1166/2-1, Qazi Qayoom Road

Hyderabad………………………………………………………………………………
…….Respondents.
Mr. Behzad Ali Umrani, learned counsel for the appellant.
Mr. Ahmed Murtuza A. Arab, learned counsel for
respondent No.1.
None present for remaining respondents

J U D G M E N T.
13-02-2019.

This First Rent Appeal is directed against the order dated

28.02.2018, passed by learned VIth Senior Civil Judge/Rent Controller,
Hyderabad, in Rent Application No.205 of 2015 (re-Manzoor Hussain
Qureshi & others Vs Jumo Khan), whereby the learned Rent Controller
allowed the rent application and directed the opponent to vacate the
rented shop in question within 60 days and handover its peaceful
possession to the applicants and also make payment of arrears of the
rent.
2. The appeal was transferred to this Court by Honourable
District Judge, Hyderabad, on 17.01.2019 alongwith R&Ps for its
disposal according to law.
3. Succinctly, facts of Rent Application No.205 of 2015 filed
U/s 15 of Sindh Rented Premises Ordinance, 1979, are that the rented
shop bearing No.1 constructed over Plot No.F/1166/2-1 situated at Qazi
Abdul Qayoom Road, Gari Khata, Hyderabad, was let out to opponent
by the elder of applicants namely Late Ali Bux S/o Ghulam Hussain
prior to 1995 at monthly
 -2-

rent of Rs.650/- per month. It is further stated that the opponent was
paying the monthly rent regularly to said late Ali Bux and after his
death he was paying the same to applicant No.2 but subsequently
opponent stopped the payment of rent and thereby he committed
default from January, 2013 to September 2015. It is further pleaded
that the rented shop is required to applicant No.2 for his personal
bonafide use as his service in SASSO stood closed. It is further asserted
that applicants sent legal notice dated 03.10.2015 to the opponent but
he replied the same evasively, hence, applicants filed instant rent
application with the following prayers:-
(a) it is therefore, prayed that this Honourable Court may be
pleased to direct the opponent to handover the vacant and
physical possession of rented premises / shop bearing No.1
constructed over plot No.F/1166/2-1 situated at Qazi Abdul
Qayoom Road, Gari Khata, Hyderabad in favour of
applicants as the same is required for the personal
bonafide need of applicants as well as opponent has made
default.

(b) The opponent be directed to deposit the arrears of rent in

the Honourable Court as required by law and future rent till
the physical possession over demised shop No.1 is not
handed over to the applicants.

(c) Any other relief(s) which this Honourable Court deems fit,
just and proper in favour of applicants.

(d) Cost of the case may be saddled upon the shoulders of

opponent/ tenant.

4. After institution of the rent application, notices were issued

to the opponent and in response thereto, opponent filed written
objections wherein he denied the allegations of applicant stating that
the applicants suppressed the real facts from the Court as after they
refused to receive the monthly rent he deposited the same in Court
and that while he has not committed any default, hence, applicants
have no cause of action to file the present rent application, which is
not maintainable and the same is liable to be dismissed.
5. From the pleadings of the parties, the learned Rent
Controller settled the following points, for determination of the case.
POINTS
1. Whether there is relationship of landlord and tenant
between the parties?

2. Whether rented shop is required by the applicants for their

personal bonafide use?

3. Whether the opponent has committed default in payment

of monthly rent?
 4. What should the order be?

-3-

6. In order to prove the case, both the parties led their

evidence and closed their side in evidence respectively.
7. After hearing both the parties counsel, learned trial Court
passed the impugned order whereby allowing the rent application.
8. Learned counsel for appellant, in his arguments repeating
the grounds of appeal, further argued that the appellant was tenant
in respect of the rented shop of respondents and he used to pay
monthly rent to one Ali Bux, the previous owner and thereafter he
started paying the same to respondent No.2. He further argued that
the appellant proved that he paid the rent to the respondents
regularly and thereafter through Court and the like evidence is not
appreciated by the trial Court. He further argued that the appellant
accepted that he already made payment of rent upto date so
question of default does not arise and as the personal bonafide need,
applicant No.2, attorney Muzaffar admitted that he has not
sufficiently mentioned the nature of his business in the rent
application nor he has mentioned that he requires the demised shop
for personal use of his son and that he admitted too that applicant
has two more shops situatedbesides the rented shop. He further
argued that the appellant produced all the rent receipts in his
evidence and discharged the onus of proof successfully. He further
argued that PW Umair admitted that respondent No.2 has no
experience for doing business and that since last 07 years,
appellant/opponent is doing business in the rented shop, therefore,
appeal may be allowed and order passed by trial Court be set-aside.
9. On the other hand, learned counsel for respondents
argued that appeal is not maintainable, no ground is shown as to how
the appeal lies or maintainable, it is the choice of landlord to seek
eviction of the premises, which he wants. He further argued that
respondent No.2, attorney of remaining respondents remained
consistent in his cross examination with the averments made in the
eviction application. He further argued that appellant admitted the
respondents as his landlords and that the rent receipts, which are
hand written, are jolly one having been prepared at one time, place
and with same pen for which tenant admitted that he sent three
money orders in 10 days which too after filing of the rent application
and this is an admitted default in payment of rent, therefore, appeal
may be dismissed. In support of his arguments he relied upon the
case law reported as 2018 SCMR 1441.
10. I have carefully heard learned counsel for the parties at
length and gone through the relevant record.
Now point for determination of the lis, are as under:
 -4-

POINTS

(i) Whether impugned order dated 28.02.2018 requires

any interference of this Court.?.

(ii) What should the judgment be?

My findings on points (I) and (II) are as under:-

FINDINGS
POINT NO.I In negative.
POINT NO.II Appeal dismissed.

REASONS
POINT NO.I

11. Per contents of rent application and evidence brought on

record, the eviction of the appellant/tenant was sought on the two
grounds viz. personal bonafide use and the default in payment of rent.
The applicant No.2/landlord, the attorney of remaining respondents, in
his affidavit in evidence deposed that the rented shop was required for
his personal bonafide use and that the opponent/tenant committed
default in payment of rent and this is what which was deposed by him
in his cross. The opponent also filed his affidavit in evidence and he in
his cross admitted that the rent application was filed on 27.10.2015
and he sent all three money orders after filing of the rent application.
He also admitted that one legal notice was also sent to him on
03.10.2015. He denied that he did not pay rent since January 2013 to
September 2015. He watching rent receipts dated 17.12.2012,
13.01.2013, 11.02.2014, 11.03.2014 and 12.12.2014 deposed that
those were filed by him with his affidavit in evidence but cannot say
that these all receipts are written with same and similar pen and bore
similar handwriting. He further shown his ignorance that these receipts
do bear forged signature of Muzaffar Hussain Qureshi. He watching
rent receipts dated 01.10.2013 and 04.02.2015 lying with his affidavit
in evidence deposed that both these receipts might bear different
signatures. He further shown his ignorance that it is not in his
knowledge that all these receipts are prepared in one day. He admitted
that since 2004 Muzaffar is jobless after closing of his department
SASSO. He made a volunteer disclosure that Muzaffar has sons and it is
not in his knowledge that his sons are jobless and still unmarried. He
further deposed that it is not in his knowledge that Muzaffar requires
rented premises for his personal use. He also shown his ignorance that
he did not mention in his reply of legal notice that he is
defaulter.Furthermore, the applicants / landlords are admittedly the
registered owners of the rented premises. If it is so, Section 15(2)(vii)
of SRPO
-5-

gives unfettered right to the applicants/landlords to get the rented

shop vacated for their own occupation or use or occupation of their
spouses or any of their children. In the case law supra reported as
2018 SCMR 1441, it has been held that:-
“Sole testimony of landlord was sufficient to establish
personal bona fide need, if such statement of landlord was
consistent with averments made in ejectment application---
Impugned order being in accordance with such principle of
law, leave to appeal was refused by Supreme Court”.

In view of the above discussion, I am of the humble view

that applicants / landlords are consistent with the averments made in
the rent application, I therefore, hold that the impugned order does not
require interference by this Court, hence, point No.1 is replied in
negative.

POINT NO.II
12. In the light of the discussion aforesaid, instant appeal
stands dismissed, therefore, order passed by learned trial court/Rent
Controller shall hold the field. The parties to bear their own costs. The
restraining order dated 04.02.2019 passed by this Court is vacated. Let
certified true copy of order be transmitted to learned Rent Controller
alongwith R&Ps.
Announced in open court,
Given under my hand & seal of this Court, this the 13th day of February, 2018

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
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Document Code: 27BAA88B85564FD4ED124F106C542102

IN THE COURT OF VITH ADDITIONAL SESSIONS JUDGE, HYDERABAD

Sessions Case No.1064 OF 2015

The State-----------------------------------------Vs.--------------------Hyder @ Suhail& others

-x-x-x-x-
Saleem S/o Amanullah Pathan………………………………………..………....Applicant/Accused
Crime No.47/2015
PS: Tando Yousuf
U/S: 324, 353, 147, 148, 149 PPC
Applicant/accused in person.
Mr. Nasir Durrani, D.D.P.P for the State.

ORDER ON APPLICATION U/S 265-K Cr.P.C.

ORDER
06.02.2019
This order shall dispose of an application filed U/S 265-K Cr.P.C by
applicant/accused Saleem praying for his acquittal on the grounds that co-accused
have already been acquitted and charge against him has become groundless, hence
he may be acquitted.
2. Record shows that co-accused Hyder @ Suhail, Ishtiaque and Abbas
Ali @ Moni are already acquitted by this Court vide order dated 17.10.2016, passed
U/S. 265-K Cr.P.C. by keeping the case of present applicant / accused on dormant
file. On 27.08.2018 present applicant/accused was arrested and on submission of
supplementary challan by police, the legal Magistrate sent the same to Honourable
Sessions Court and thereafter it was received by this Court on 11.12.2018, copies
were supplied to accused on 12.10.2018. Today the case was fixed at Camp Court
inside the Central Prison, Hyderabad for charge but job could have been done, the
applicant / accused filed above application in person and notice whereof was
received by learned DDPP for the State.
3. Applicant / accused mostly reiterated the grounds of his application
contending that prosecution examined two witnesses in his absence who did not
implicate him to the commission of alleged offence, therefore, no fruitful result
would come out if the case is proceeded on merit and decided especially in view of
the fact that co-accused have already been acquitted and that the alleged role
against him is same to that of the role assigned to co-accused. Therefore, the
application may be allowed and he may be acquitted.
 -2-

4. Learned A.D.P.P for the State argued that dismissing the present
application, matter be proceeded and decided on merit after recording the evidence
of prosecution witnesses. However, he argued that if the witnesses already
examined are brought and examined, they would adopt their earlier statements
recorded by this court.
5. I have heard the applicant/accused in person, learned A.D.P.P for the
State and further have gone through the material available on record.
6. The very charge against the applicant/accused is that on 27.08.2015
at 2030 hours at Ghujrati Paro, he alongwith acquitted co-accused armed with
deadly weapons opened straight firing upon complainant party with intention to
commit their murder and further restrained them from discharging their lawful
duties.
7. Admittedly, this Court examined two witnesses in absence of present
applicant/accused and on the basis of such evidence acquitted co-accused Hyder @
Suhail, Abbas Ali and Ishtiaque vide order dated 17.10.2016 keeping the case
against present applicant/accused on dormant record. Learned D.D.P.P for the State
at the very outset, argued that if prosecution witnesses whose evidence has already
been recorded are brought and examined, they would adopt their earlier
statements, therefore, I have no alternate but to visit the evidence of those
witnesses already recorded and the documents produced by them and pass a proper
order. A close look at the evidence of the two star prosecution witnesses recorded in
absence of applicant/accused shows that they have miserably failed to connect the
applicant/accused with the commission of offence.These two prosecution witnesses
are not consistent to each other on material aspects of the matter. It is mentioned in
the FIR as well as mashirnama that the applicant / accused with his companions
made their escape good by running towards Railway Phatak whereas both these
PWs examined remain silent and did not depose a single word in this regard. It is
admitted by both the PWs in their evidence that private persons were found
available but they were not associated to act as mashirs and no explanation was
brought on record in this regard. It is mentioned in the statement of PW-2 / mashir
of the incident that he made four fires and such fact is contradicted by him in his
evidence wherein he admitted that he made two or three aerial fires and such fact is
creating serious doubt in the prosecution case. Admittedly, this is a case of
ineffective firing as none from both sides received bullet injury nor bullet hit to
police mobile or surrounding area of place of incident nor any recovery from place
of incident was effected, though an encounter took place between the parties in
open sky. Further, the applicant / accused is not assigned specific role in the FIR in
the commission of the offence nor any recovery was effected from possession of
accused. To my humble opinion charge against the applicant/accused, in view of
 -3-

above discussion, has not only become groundless but there appears no probability
of the applicant/accused of his being convicted of any offence. Accordingly, this
application is allowed thereby applicant/accused Saleem S/o Amanullah Pathan is
acquitted U/S 265-k Cr.P.C. The applicant/accused is produced in custody, he is
remanded back to custody with directions to release him forthwith, he if is not
required in any other custody case/crime.
Announced in open Court.
Given under my hand and the seal of the Court this 6 thday of February, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL: SESSIONS JUDGE, HYDERABAD
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IN THE COURT OF VITH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.

Sessions Case No.23 of 2019
The State
Versus
Majid @ Maju S/o Khursheed Ahmed Syed……….…………………………Accused.

Crime No.165/2018
P.S.B-Section Latifabad
U/s 23-A Sindh Arms Act

1. Mr. Nasir Durrani, learned DDPP for the State

2. Mr. Muhammad Hanif, learned Advocate for accused

J U D G E M E N T
09-02-2019
The above named accused has been sent up to stand his
trial in the above case and crime by Police Station B-Section Latifabad
Hyderabad for the offence punishable U/s 23-A Sindh Arms Act, vide
challan admitted on 26.12.2018.
2. Facts of the present case in nutshell are that complainant
ASI Allah Wasayo Nohri, registered the present FIR on 18.12.2018 at
0015 hours stating that on 17.12.2018 vide Roznamcha entry No.16 at
2000 hours in Government Mobile vehicle No.SPC-605, he alongwith PC
Khalid Bhatti and PC Muhammad Saleem, left Police Station for patrol
and during patrol, they arrived near Imam Bargah Hussaini, Unit No.10,
Latifabad, where received espionage information that wanted accused
namely Majid @ Majoo and Jehanzaib @ Lala, of Crime No.162 of 2018,
U/S. 454, 380 PPC are sitting adjacent to the wall of Shaheed-e-Millat
School, Unit No.10, Latifabad. After receiving such information,
complainant party arrived at pointed place and found two persons
available, who watching police party, tried to slip but complainant
party de-boarded from the mobile and apprehended them at 2305
hours. Due absence of private persons, PC Khalid Bhatti and PC
Muhammad Saleem were associated as mashirs. On inquiry, first
person disclosed his name as Majid @ Majoo S/o Khursheed Ahmed
Syed and on his personal search one pistol without number with plastic
strips on the butt having inscription of VEETO on its barrel alongwith
magazine containing two live bullets, was found from his pent and on
further personal search nothing was recovered, which he declared as
unlicensed. Second person disclosed his name as Jehanzaib @ Lala S/o
Kabeer Ahmed Syed and on his personal search one pistol of black
colour without number having brown wooden strips alongwith
magazine containing two live bullets and words “Made in Pakistan Cal
7.63 MM.Auto MA” were
 -2-

inscribed on its barrel and “Special Gift” on other side, was recovered
from his pent whereas one Nokia keypad mobile phone model 230
bearing IMEI No.357318089132026 and 357318086954524 was also
recovered from front pocket of his pent. On inquiry, the accused
informed that the pistol is without license and mobile was snatched
about some days ago from the house, hence complainant inquired
about the mobile phone from police station on phone and came to
know that the same is required in Crime No.162/2018, U/S. 454, 457,
380 PPC. Thereafter recovered property was sealed in white colour
cloth bags separately, accused were arrested and such memorandum
of arrest and recovery was prepared on front seat of the mobile with
the help of cabin light and then accused and case property were
brought at Police Station where two separate FIRs were registered.
3. As result of investigation, the investigation officer
submitted challan against accused Majid @ Maju before the area
Magistrate, who accepted the challan and sent up the case to the
Court of Honourable Sessions Judge, Hyderabad, on jurisdictional
ground and wherefrom the R & Ps received by this Court for its
disposal according to law.
4. In compliance of Section 265-C Cr.P.C. necessary case
papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.2, to which he did
not plead guilty and claimed to be tried vide his plea at Ex.2/A.
5. Prosecution examined Investigation Officer SIP Mujahid
Hussain as PW-1 at Ex.3, who produced entry of Malkhana, letter for
FSL and FSL report as Ex.3/A to 3/C respectively, complainant ASI Allah
Wasayo as PW-2 at Ex.4, he produced departure and arrival entry,
mashirnama of arrest and recovery and FIR at Ex.4/A to 4/C
respectively and mashir PC Muhammad Khalid as PW-3 at Ex.5.
Thereafter learned DDPP for the State closed the side in evidence vide
his statement at Ex.6.
6. Statement U/s 342 Cr.P.C. of accused was recorded at
Ex.6, who denied all the allegations leveled against him by the
prosecution and claimed to be innocent, however, he did not opt
examine himself on oath or produce witnesses.
7. Learned D.D.P.P. for the State argued that prosecution
witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
8. Learned counsel for the accused, on the other hand,
argued that prosecution case is highly doubtful contending further that
there is no cogent evidence with the prosecution and that P.Ws
examined have contradicted to

-3-

each other on material facts. The accused is innocent, therefore, he

may be acquitted from the charge.
7. I have heard learned D.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-
(i) Whether on 17.12.2018 at 2305 hours accused was
arrested from Shaheed-e-Millat School Unit No.10,
Latifabad, Hyderabad, and was found possessing an
unlicensed pistol of 30-Bore alongwith magazine and two
live bullets.

(ii) What offence if any, has been committed by the accused?.

My findings on the above points with reasons thereto are
as under:-
FINDINGS

POINT NO.I Doubtful.

POINT NO.II Accused is acquitted U/s 265-H(i) Cr.P.C.

REASONS

POINT NO.I

8. Prosecution examined in all three witnesses, out of which,

PW-2 and PW-3 are star witnesses of arrest and recovery while PW-1 is
the officer, who conducted investigation. PW-2 and so also the PW-3
first of all are not in league to each other in their respective
examination-in-chiefs regarding the time by which the police party left
Police Station for patrol. PW-2 deposed that they left Police Station at
about 0800 hours vide Roznamcha entry No.16 for patrol of the area
whereas PW-3, the witness/mashir of arrest and recovery introduced
the time of departure from Police Station as 2050 hours. If the
statement of later PW is presumed to be correct then the entire
exercise done by party becomes doubtful because time of arrest in the
mashirnama Ex.4/B, is shown as 2000 hours. Further PW-2 in his chief
claimed that the memo of arrest and recovery was prepared at spot
but he in his cross deposed otherwise that mashirnama of arrest and
recovery produced before this Court at Ex.4/B, was prepared and
signed at Police Station. He made a voluntarily disclosure that rough
copy thereof was prepared at spot, however, he admitted that he did
not produce even that copy before this Court. In the mashirnama
Ex.4/B, the property is shown to had been sealed at spot whereas PW-2
remained silent in his chief as to this aspect of the matter and the
same too was admitted by him in his cross. Yet this PW produced
departure and arrival entry at Ex.4/A but he in his cross admitted that
it does not bear signature of its author and
-4-

further shown ignorance as to whether an unsigned document has any

credence in law or not. Both these PWs remained silent regarding
recovery of mobile in their respective examination-in-chief, which is
also shown in the memo, to had been recovered from co-accused
Jahanzaib. Memo Ex.4/B also shows wording viz. VEETO inscribed on
the barrel of the pistol allegedly recovered from present accused but
PW-2 and PW-3 both of them remained silent as to this disclosure. On
the contrary PW-2 in his cross admitted this fact also. As regard the
evidence of Investigation Officer, his statement appears to be formal,
who conducted investigation and submitted challan, therefore,
discussion as to evidence of this witness, is of no avail. It is settled
principle of law that even if a single contradictory statement is found in
the prosecution the benefit whereof could got to accused always, this
case in hand is full of flaws and material irregularities. Reliance in this
regard is respectfully placed upon the case reported as 2009 SCMR
230. In view of above discussion I am of the humble view that
prosecution has failed to prove its case against the accused beyond
any reasonable shadow of doubt. Accordingly, the point under
discussion are answered as doubtful and not proved.
POINT NO.II

11. In view of the aforementioned appraisal of evidence, I am

of the humble view that the prosecution has miserably failed to bring
home the charge against the accused beyond any shadow of
reasonable doubt, hence, accused Majid @ Majoo S/o Khursheed Syed
is given benefit of doubt and stands acquitted of the charge U/s 265-
H(i) Cr.P.C. He is produced in custody, he is remanded back to custody
with directions to Jail authorities to release him forthwith, if he is not
required in any other custody case / crime.
Pronounced in open Court this 9thday of February2019.

(MUHAMMAD FAZIL BOHIO)

 VITH ADDL. SESSIONS JUDGE,
HYDERABAD.

CASE PROPERTY ORDER U/S 517 CR.P.C

The case property viz. one 30-Bore pistol alongwith

magazine and two live bullets be deposited in District Armoury for its
disposal according to law. The directions be done after expiry of appeal
period.
Dated this 9thday of February, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
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IN THE COURT OF VITH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.

Sessions Case No.24 of 2019
The State
Versus
Jahanzaib @ Lala S/o Kabeer Ahmed Syed…………………………………Accused.

Crime No.166/2018
P.S. B-Section Latifabad
U/s 23-A Sindh Arms Act

1. Mr. Nasir Durrani, learned DDPP for the State

2. Mr. Sartar Iqbal Panhwar, learned Advocate for accused

J U D G E M E N T
09-02-2019
The above named accused has been sent up to stand his
trial in the above case and crime by Police Station B-Section Latifabad
Hyderabad for the offence punishable U/s 23-A Sindh Arms Act, vide
challan admitted on 26.12.2018.
2. Facts of the present case in nutshell are that complainant
ASI Allah Wasayo Nohri, caused the present FIR registered on
18.12.2018 at 0040 hours stating therein that already arrested
accused namely Jahanzaib @ Lala S/o Kabeer Ahmed, in Crime No.162
of 2018, U/S. 454, 457, 380 PPC and Crime No.165/2018, U/S. 23-A
Sindh Arms Act, was found in possession of one pistol of black colour
without number having brown wooden strips alongwith magazine
containing two live bullets and one Mobile phone Nokia Model 230
bearing IMEI No.357318089132026 and 357318086954524, hence,
present FIR was registered.
3. As result of investigation, the investigation officer
submitted challan against accused Jahanzaib @ Lala before the area
Magistrate, who accepted the challan and sent up the case to the
Court of Honourable Sessions Judge, Hyderabad, on jurisdictional
ground and wherefrom the R & Ps received by this Court for its
disposal according to law.
4. In compliance of Section 265-C Cr.P.C. necessary case
papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.2, to which he did
not plead guilty and claimed to be tried vide his plea at Ex.2/A.
5. Prosecution examined Investigation Officer SIP Mujahid
Hussain as PW-1 at Ex.3, who produced entry of Malkhana, letter for
FSL and FSL report as Ex.3/A to 3/C respectively, complainant ASI Allah
Wasayo as PW-2 at Ex.4, he produced departure and arrival entry,
mashirnama of arrest and recovery and
 -2-

FIR at Ex.4/A to 4/C respectively and mashir PC Muhammad Khalid as

PW-3 at Ex.5. Thereafter learned DDPP for the State closed the side in
evidence vide his statement at Ex.6.
6. Statement U/s 342 Cr.P.C. of accused was recorded at
Ex.6, who denied all the allegations leveled against him by the
prosecution and claimed to be innocent, however, he did not opt
examine himself on oath or produce witnesses.
7. Learned D.D.P.P. for the State argued that prosecution
witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
8. Learned counsel for the accused, on the other hand,
argued that prosecution case is highly doubtful contending further that
there is no cogent evidence with the prosecution and that P.Ws
examined have contradicted to each other on material facts. The
accused is innocent, therefore, he may be acquitted from the charge.
7. I have heard learned D.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-

(i) Whether on 17.12.2018 at 2305 hours accused was

arrested from Shaheed-e-Millat School Unit No.10,
Latifabad, Hyderabad, and was found possessing an
unlicensed pistol of 30-Bore alongwith magazine and two
live bullets and one Mobile Phone Nokia model 230 bearing
IMEI No.357318089132026 and 357318086954524?

(ii) What offence if any, has been committed by the accused?.

My findings on the above points with reasons thereto are
as under:-
FINDINGS

POINT NO.I Doubtful.

POINT NO.II Accused is acquitted U/s 265-H(i) Cr.P.C.

REASONS
POINT NO.I

8. Prosecution examined in all three witnesses, out of which,

PW-2 and PW-3 are star witnesses of arrest and recovery while PW-1 is
the officer, who conducted investigation. PW-2 and so also the PW-3
first of all are not in league to each other in their respective
examination-in-chiefs regarding the time by which the police party left
Police Station for patrol. PW-2 deposed that
-3-

they left Police Station at about 0800 hours vide Roznamcha entry
No.16 for patrol of the area whereas PW-3, the witness/mashir of arrest
and recovery introduced the time of departure from Police Station as
2050 hours. If the statement of later PW is presumed to be correct
then the entire exercise done by party becomes doubtful because time
of arrest in the mashirnama Ex.4/B, is shown as 2000 hours. Further
PW-2 in his chief claimed that the memo of arrest and recovery was
prepared at spot but he in his cross deposed otherwise that
mashirnama of arrest and recovery produced before this Court at
Ex.4/B, was prepared and signed at Police Station. He made a
voluntarily disclosure that rough copy thereof was prepared at spot,
however, he admitted that he did not produce even that copy before
this Court. In the mashirnama Ex.4/B, the property is shown to had
been sealed at spot whereas PW-2 remained silent in his chief as to
this aspect of the matter and the same too was admitted by him in his
cross. Yet this PW produced departure and arrival entry at Ex.4/A but
he in his cross admitted that it does not bear signature of its author
and further shown ignorance as to whether an unsigned document has
any credence in law or not. Both these PWs remained silent regarding
recovery of mobile in their respective examination-in-chief, which is
also shown in the memo, to had been recovered from present accused.
Memo Ex.4/B also shows wording viz. “Made in Pakistan Cal 7.63 MM
Auto MA” and “Special Gift“ on other side inscribed on the barrel of the
pistol allegedly recovered from present accused but PW-2 and PW-3
both of them remained silent as to this disclosure. On the contrary PW-
2 in his cross admitted this fact also. As regards the evidence of
Investigation Officer, his statement appears to be formal, who
conducted investigation and submitted challan, therefore, discussion
as to evidence of this witness, is of no avail. It is settled principle of law
that even if a single contradictory statement is found in the
prosecution the benefit whereof could go to accused always this case
in hand is full of flaws and material irregularities. Reliance in this
regard is respectfully placed upon the case reported as 2009 SCMR
230. In view of above discussion I am of the humble view that
prosecution has failed to prove its case against the accused beyond
any reasonable shadow of doubt. Accordingly, the point under
discussion are answered as doubtful and not proved.
POINT NO.II
11. In view of the aforementioned appraisal of evidence, I am
of the humble view that the prosecution has miserably failed to bring
home the charge against the accused beyond any shadow of
reasonable doubt, hence, accused Jahanzaib @ Lala S/o Kabeer Ahmed
Syed is given benefit of doubt and stands acquitted of the charge U/s
265-H(i) Cr.P.C. He is produced in custody,

-4-

he is remanded back to custody with directions to Jail authorities to

release him forthwith, if he is not required in any other custody case /
crime.
Pronounced in open Court this 9thday of February 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.

CASE PROPERTY ORDER U/S 517 CR.P.C

The case property viz. one 30-Bore pistol alongwith

magazine and two live bullets be deposited in District Armoury for its
disposal according to law. The directions be done after expiry of appeal
period whereas keypad Mobile Phone Nokia-230 be returned to its
original owner after proper verification and identification.
Dated this 9thday of February, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
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0BAFD0C93DE300F09573E798E29DA6EE
IN THE COURT OF VITH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.
Sessions Case No.19 of 2019
The State
Versus
Kashif S/o Mubashir Jat…………………………………….…………………………………Accused.

Crime No.306/2018
P.S. A-Section Latifabad
U/s 23-A Sindh Arms Act

1. Mr. Nasir Durrani, learned DDPP for the State

2. Mr. Muhammad Saleem Chohan, learned Advocate for accused

J U D G E M E N T
12-02-2019
The above named accused has been sent up to stand his
trial in the above case and crime by Police Station A-Section Latifabad
Hyderabad for the offence punishable U/s 23-A Sindh Arms Act, vide
challan admitted on 01.01.2019.
2. Facts of the present case in nutshell are that complainant
SIP Asif Ali Jatoi, registered the present FIR on 08.12.2018 at 0230
hours stating that on the said date, he alongwith his subordinate staff
PC Imran Zaidi, PC Zubair Ahmed and PC Shafique Ahmed vide
Roznamcha entry No.40 at 0030 hours left Police Station in
Government Mobile vehicle No.SPN-196 for patrol and during which
they arrived at main gate of Amani Shah graveyard where they saw a
person upon the headlight of police mobile in suspect position, who
watching police mobile, tried to enter in the graveyard but they de-
boarded from the mobile and apprehended him at 0130 hours. Due to
absence of private persons, PC Imran Zaidi and PC Shafique Ahmed
were associated as mashirs. On inquiry, captive disclosed his name as
Kashif S/o Mubashir Jatt and on his personal search he recovered one
black colour pistol of 30-Bore without number having wordings of
“COBRA 30-BORE FRONTIER ARMS CO. PESHAWAR” on its left side
barrel alongwith magazine which was unloaded and found three live
bullets, which he declared as unlicensed. On further personal search
one golden colour HUWAI mobile phone was recovered from backside
pocket of his pent, which was stolen from the house of Abdul Mabood
and required in Crime No.301/2018, U/S. 380, 457 PPC.Thereafter
recovered property was sealed in white colour cloth bag and such
memo of arrest and recovery was prepared in presence of aforesaid
mashirs with the help of torch light on the bonnet of mobile and then
accused and case property were brought at Police Station where
present FIR was registered.
 -2-

3. As result of investigation, the investigation officer

submitted challan against accused Kashif before the area Magistrate,
who accepted the challan and sent up the case to the Court of
Honourable Sessions Judge, Hyderabad, on jurisdictional ground and
wherefrom the R & Ps received by this Court for its disposal according
to law.
4. In compliance of Section 265-C Cr.P.C. necessary case
papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.2, to which he did
not plead guilty and claimed to be tried vide his plea at Ex.2/A.
5. Prosecution examined Investigation Officer ASI Kashif Khan
as PW-1 at Ex.3, who produced letter for FSL, memo of place of wardat,
FSL report and entry of Malkhana at Ex.3/A to 3/D respectively,witness
PC Zubair Ahmed as PW-2 at Ex.4, mashir of the incident PC Shafique
Ahmed as PW-3 at Ex.5, he produced memo of arrest and recovery at
Ex.5/A and complainant SIP Asif Ali Jatoi as PW-4 at Ex.6, he produced
FIR at Ex.6/A. Thereafter learned DDPP for the State closed the side in
evidence vide his statement at Ex.7.
6. Statement U/s 342 Cr.P.C. of accused was recorded at
Ex.8, who denied all the allegations leveled against him by the
prosecution and claimed to be innocent, however, he did not opt
examine himself on oath or produce witnesses.
7. Learned D.D.P.P. for the State argued that prosecution
witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
8. Learned counsel for the accused, on the other hand,
argued that prosecution case is highly doubtful contending further that
there is no cogent evidence with the prosecution and that P.Ws
examined have contradicted to each other on material facts. The
accused is innocent, therefore, he may be acquitted from the charge.
7. I have heard learned D.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-
(i) Whether on 08.12.2018 at about 0130 hours accused was
arrested from main gate of Amani Shah graveyard, Unit
No.11, Latifabad, Hyderabad and was found in possession
of an unlicensed rubbed number pistol alognwith magazine
containing three live bullets?

(ii) What offence if any, has been committed by the accused?.

 My findings on the above points with reasons thereto are
as under:-
 -3-

FINDINGS

POINT NO.I Doubtful.

POINT NO.II Accused is acquitted U/s 265-H(i) Cr.P.C.

REASONS
POINT NO.I

8. To prove its case, the prosecution examined as many as

four witnesses. PW-1 is examined as Investigation Officer, PW-2 as
witnss of occurrence, PW-3 as mashir of arrest and recovery and PW-4
as complainant of the case. PW-2 in his cross deposed that there was
dark of night and it was not possible at relevant point of time to write
some document or read over it contents, the complainant
apprehended the accused after he covered the distance of 15 paces
from mobile who was wearing camel colour shirt and that he does not
know what was the description of recovery. PW-3 in his chief deposed
that accused was apprehended after he covered about 10 paces and
that he was wearing suit pent of camel colour. However, he in his chief
remained silent as to description inscribed on the barrel of the pistol
which he also admitted in his cross. According to him, the pistol was
recovered from left side fold of Shalwar of accused whereas F.I.R and
memo mention that it was recovered from his right side fold of pent.
The complainant who also claimed that he prepared the mashirnama
of arrest and recovery, in his chief remained silent as to description
inscribed on the pistol whereas the pistol shown to had been recovered
from the accused was having wordings as “COBRA 30-BORE FRONTIER
ARMS CO. PESHAWAR” inscribed on its left side barrel. This is what
which is admitted by him in his cross. PW-3 admitted that there was
dark of night and he did not show the source of light upon which the
memo of arrest and recovery was prepared. He also remained silent as
to recovery of mobile from the accused. PW-4 also remained silent as
to this part of case property in his chief, for which he in his cross
admitted that the same is neither shown in the reserved column of
challan sheet of case property nor it is produced before this Court. Yet I
would repeat that according to PW-2 the accused was apprehended
after he covered about 15 paces, PW-3 introduced this distance as 10
paces from the mobile and graveyard whereas PW-4 disclosed this
distance as 60 feet away from the place where the accused was
available. As regards the evidence of PW-1, his statement is formal,
however, though he claimed that he visited the place of wardat and
prepared such memo inpresence of mashirs which document he also
brought on record as Ex.3/B but he in his cross admitted that he did
not depose that by which entry of
 -4-

Roznamcha Register and at which time he left and visited the place of
occurrence nor such document he exhibited on record. In addition to
this, there are also other contradictory pieces of evidence made by the
above witnesses but those are unnecessary to be discussed specially
in view of above discussion. It is settled principle of law that even if a
single contradictory statement is found in the prosecution the benefit
whereof could go to accused always this case in hand is full of flaws
and material irregularities. Reliance in this regard is respectfully placed
upon the case reported as 2009 SCMR 230. Thus, I am of the humble
view that prosecution has failed to prove its case against the accused
beyond any reasonable shadow of doubt. Accordingly, the point under
discussion are answered as doubtful and not proved.
POINT NO.II

11. In view of the aforementioned appraisal of evidence, I am

of the humble view that the prosecution has miserably failed to bring
home the charge against the accused beyond any shadow of
reasonable doubt, hence, accused Kashif S/o Mubashir Jatt is given
benefit of doubt and stands acquitted of the charge U/s 265-H(i) Cr.P.C.
He is present on bail, his bail bond stands cancelled and surety is
discharged.
Pronounced in open Court this 14thday of February 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
CASE PROPERTY ORDER U/S 517 CR.P.C

The case property viz. one 30-Bore pistol alongwith

magazine and three live bullets be deposited in District Armoury for its
disposal according to law. The directions be done after expiry of appeal
period whereas HUAWEI Mobile Phone recovered from accused be
returned to its original owner after proper verification and
identification.
Dated this 12thday of February, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
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IN THE COURT OF VITH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.
Sessions Case No.497 of 2018
The State
Versus
Abdul Hameed @ Kaloo S/o Abdul Rehman Ansari…………………Accused.

Crime No.225/2018
P.S. A-Section Latifabad
U/s 23-A Sindh Arms Act

1. Mr. Nasir Durrani, learned DDPP for the State

2. Mr. Muhammad Faraz Shaikh, learned Advocate for accused
J U D G E M E N T
12-02-2019
The above named accused has been sent up to stand his
trial in the above case and crime by Police Station A-Section Latifabad
Hyderabad for the offence punishable U/s 23-A Sindh Arms Act, vide
challan admitted on 26.12.2018.
2. Facts of the present case in nutshell are that complainant
ASI Shabran, registered the present FIR on 27.09.2018 at 0030 hours
stating that on 27.09.2018 he alongwith PC Atta Muhammad, PC
Shafique Ahmed and DPC Aftab vide Roznamcha entry No.33 at 0005
hours in Government Mobile vehicle No.SP-971, left Police Station for
patrol and during which, they arrived at 7/8 Chowk where received spy
information that a person is standing at PMG Chowk Unit No.8
Latifabad having pistol in his possession. After receiving such
information, complainant briefed the staff, thus arrived at pointed
place and found the said person available, who watching police mobile,
tried to slip but complainant party de-boarded from the vehicle and
apprehended him at 0030 hours. On inquiry he disclosed his name as
Abdul Hameed @ Kaloo S/o Abdul Rehman Ansari and on his personal
search one black colour 30-Bore T.T. pistol was recovered, which was
unloaded and found magazine containing 03 live bullets having black
colour strips on both sides of the butt and white tape was also wrapped
on it, which was declared as unlicensed. Thereafter recovered property
was sealed in white colour cloth bag, accused was arrested and such
memorandum of arrest and recovery was prepared in presence of
mashirs PC Atta Muhammad and PC Shafique Ahmed and then accused
and case property were brought at Police Station where present FIR
was registered.
3. As result of investigation, the investigation officer
submitted challan against accused Abdul Hameed @ Kala before the
area Magistrate, who accepted the challan and sent up the case to the
Court of Honourable Sessions Judge, Hyderabad, on jurisdictional
ground and wherefrom the R & Ps received by this Court for its
disposal according to law.
 -2-

4. In compliance of Section 265-C Cr.P.C. necessary case

papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.2, to which he did
not plead guilty and claimed to be tried vide his plea at Ex.3.
5. Prosecution examined complainant as PW-1 at Ex.4, he
produced departure and arrival entry, memo of arrest and recovery,
sketch of pistol and FIR at Ex.4/A to 4/D respectively, mashir of the
incident as PW-2 at Ex.5 and Investigation Officer SIP Tarique Baladi as
PW-3 at Ex.6, who produced letter for FSL and FSL report at Ex.6/A and
6/B respectively. Thereafter learned DDPP for the State closed the side
in evidence vide his statement at Ex.7.
6. Statement U/s 342 Cr.P.C. of accused was recorded at
Ex.8, who denied all the allegations leveled against him by the
prosecution and claimed to be innocent, however, he did not opt
examine himself on oath or produce witnesses.
7. Learned D.D.P.P. for the State argued that prosecution
witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
8. Learned counsel for the accused, on the other hand,
argued that prosecution case is highly doubtful contending further that
there is no cogent evidence with the prosecution and that P.Ws
examined have contradicted to each other on material facts. The
accused is innocent, therefore, he may be acquitted from the charge.
7. I have heard learned D.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-
(i) Whether on 27.09.2018 at 12:30 P.M. accused was
arrested from PMG Chowk, Unit No.8, Latifabad Hyderabad,
and found in possession of an unlicensed 30-Bore T.T pistol
alongwith magazine and three live bullets?

(ii) What offence if any, has been committed by the accused?.

My findings on the above points with reasons thereto are
as under:-
FINDINGS

POINT NO.I Doubtful.

POINT NO.II Accused is acquitted U/s 265-H(i) Cr.P.C.

 -3-
REASONS

POINT NO.I

8. To prove its case, prosecution examined 03 witnesses PW-

1 the complainant, PW-2 the mashir of arrest and recovery and PW-3
the Investigation Officer. The first two witnesses are examined by the
prosecution as star witnesses of arrest and recovery. PW-1 in his chief
tried to support the prosecution case as was set up, however, he in his
cross contradicted even to his own chief. In his examination in chief, he
claimed that he received spy information at 7/8 Chowk whereas he in
his cross deposed that he directly arrived at Mujahid Hotel and then
came at Mujahid Chowk, which is the place of information. PW-2 in his
examination in chief remained silent as to recovery of bullets. PW-1 in
his cross deposed that they did not conduct snap checking of any
passerby persons and vehicles whereas PW-2 deposed otherwise that
they conducted snap checking of 2/3 motorcyclists at Mujahid Hotel
and so also at 7/8 Chowk. According to PW-1, it is he who conducted
personal search of the accused and recovered 30-Bore T.T pistol
containing 03 live bullets in its magazine whereas PW-2 deposed
otherwise that it is he who conducted personal search of accused and
effected recovery. PW-2 in his chief shown time of arrival at place of
arrest and recovery as 0030 hours where he in his cross contradicted
his like statement deposing that they arrived there at 0026 hours.
According to complainant he prepared the memo of arrest and
recovery in standing position by keeping on the clip board upon source
of street light about three paces away from the mobile whereas PW-2
deposed otherwise that the memo of arrest and recovery was prepared
by complainant by keeping on the bonnet of mobile. Both these PWs
admitted that there is overwriting in the document Ex.4/B, memo of
arrest and recovery regarding the name of PC Atta Muhammad, the
PW-2 and such overwriting does not bear initial of its author. PW-1 also
admitted that document Ex.4/A, which is departure and arrival entry is
not signed by its author and that an unsigned document has no weight
in law, however, he made a volunteer disclosure that this question may
be put to Investigation Officer. If it is so, it is very strange statement
because on the one hand he claimed that this document was
maintained by him but question regarding such document be
suggested to be put from Investigation Officer. This PW also admitted
that he has not produced before this Court the entry by which the
property was deposited in the Malkhana. PW-2 also admitted that he
did not disclose in his chief that his 161 Cr.P.C. statement was
recorded by the Investigation Officer. As regards the evidence of PW-3,
the Investigation Officer, he in chief claimed that he conducted
investigation and sent the property to the expert but in his cross he
made very strange statement
 -4-
The document Ex.6/A by which property was sent to expert for report
bore the date of sending the property as 26.09.2018 and not
27.09.2018. If it is so, the like statement brushed aside the entire
episode as date of arrest and recovery of accused is shown as
27.09.2018 whereas the letter by which the property was sent to the
expert for opinion bore date as 26.09.2018 one day before the arrest
and recovery. It is settled principle of law that even if a single
contradictory statement is found in the prosecution the benefit
whereof could go to accused always this case in hand is full of flaws
and material irregularities. Reliance in this regard is respectfully placed
upon the case reported as 2009 SCMR 230. In view of above discussion
I am of the humble view that prosecution has failed to prove its case
against the accused beyond any reasonable shadow of doubt.
Accordingly, the point under discussion are answered as doubtful and
not proved.
POINT NO.II

11. In view of the aforementioned appraisal of evidence, I am

of the humble view that the prosecution has miserably failed to bring
home the charge against the accused beyond any shadow of
reasonable doubt, hence, accused Abdul Hameed S/o Abdul Rehman
Ansari is given benefit of doubt and stands acquitted of the charge U/s
265-H(i) Cr.P.C. He is produced in custody, he is remanded back to
custody with directions to Jail authorities to release him forthwith, if he
is not required in any other custody case / crime.
Pronounced in open Court this 12thday of February 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
CASE PROPERTY ORDER U/S 517 CR.P.C

The case property viz. one 30-Bore pistol alongwith

magazine and three live bullets be deposited in District Armoury for its
disposal according to law after expiry of appeal period.
Dated this 12thday of February, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
 IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.

Summary Suit No.28 of 2017

Ismail Khan S/o Toorani

Muslim, adult, R/o B-10
Gulshan-e-Khair Muhammad
SITE Area, Hyderabad………………...

……………….................................Plaintiff.

VERSUS

1. Muhammad Yousuf S/o Ali Ahmed

2. Taimoor S/o Ali Ahmed
3. Younis Soomro S/o Muhammad Yousuf
4. Muhammad Ismail S/o Nabi Bux
R/o Plot No.B-48, Faraz Villas
Phase-II, Qasimabad, Hyderabad…….

…………………………………………….Defendants.

Mr. Bisharat Ali Memon, learned counsel for the plaintiff.

Mr. Mansoor Ali, learned counsel for defendants.

O R D E R.
19-03-2019.

2. Brief facts of the case as disclosed in the above suit are

that one Ali Ahmed demanded One Crore as loan from plaintiff on the
ground of financial hardships and on 06.10.2016 plaintiff handed over
the same to said Ali Ahmed, who in lieu thereof, mortgaged his
Bungalow No.B-48, Faraz Villas, Phase-II, Qasimabad, Hyderabad by
executing mortgaged deed dated 06.10.2016 and also handed over
three vehicles i.e. Toyota XLI bearing No.AQQ-923 Model 2008, (2)
Toyota XLI bearing No.APN-517 Model 2007 and Toyota GLI bearing
No.BDW-148 Model 2015 as security and also executed three sale
agreements of said vehicles besides this he also executed two
Promissory Notes dated 06.10.2016 amounting to Rs.70 Lacs and
Rs.30 Lacs respectively, with the assurance that he will return the
amount within one month but he failed to do so. Thereafter plaintiff got
transferred the above vehicles in his name then said Ali Muhammad
demanded vehicles on hire basis with assurance that he will pay the
rent of said cars but he failed to do so. It is further stated that when
plaintiff forced for payment of amount on which said Ali Muhammad
issued seven cheques of Habib Bank Limited Tando Allahyar Branch
amounting to rupees One Crore, which were presented by the plaintiff
to the Bank but the same were bounced due to “funds insufficent” then
plaintiff tried to resolve the matter by negotiation but said Ali
Muhammad expired. It is further stated that thereafter plaintiff
approached the defendants being legal heirs of Ali Ahmed but they did
not pay any heed and extended threats, hence, plaintiff also served
the defendants with legal notices dated 25.03.2017 and 20.04.2017
but the same were not responded. Hence, plaintiff filed this suit with
the following prayers;-
(a) To direct the defendants to pay Rs.One Crore to the
plaintiff being legal heirs of late Ali Muhammad alongwith
mesne profit at the rate of 15% per annum since
06.10.2016 till realization of the decreetal amount.

(b) Cost of the suit be saddled upon the defendant.

(c) Any other relief(s) which this Honourable Court deems fit,
just and proper in favour of the plaintiff.
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Document Code: D771B23FAB89A5A2182407E2FAD2B6D4

IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,

HYDERABAD.

Civil Appeal No.124 of 2018

Abdul Hameed S/o Muhammad Hanif

Adults, Muslims, R/o H.No.238, Unit No.8
Eidgah Colony Latifabad Hyderabad Sindh…..………………...

………………...Appellant.

VERSUS

Muhammad Hussain S/o Muhammad Hanif

Occupant in shop No.3 & 4 Rafique Square
Proprietor of Chandi Juice near Shah Lateef Sweet House
Unit NO.07, Latifabad,

Hyderabad…………………………………………………….Respondent.

Mr. Muhammad Hanif Shaikh, learned counsel for the appellant.

Mr. Babar Bohio, learned counsel for respondent.

J U D G M E N T.
26-03-2019.

This Civil Appeal is directed against the order dated

21.07.2018, passed by learned VIth Senior Civil Judge, Hyderabad, in
F.C.Suit No.1270 of 2017 (re-Abdul Hameed Vs. Muhammad Hussain),
whereby the learned trial Court rejected the plaint U/O 07 Rule 11
C.P.C.
2. The appellant / plaintiff Abdul Hameed filed above suit for
Declaration, Possession, Mesne Profits and Injunction against
respondent/ defendant, his real brother, with following prayers;-
(a) To declare that the plaintiff is legal owner of the shops
bearing No.03 & 04, constructed over plot No.210 Block
“D” Unit No.07 Rafiq Square, Latifabad, Hyderabad.

(b) To direct the defendant to vacate the suit shops bearing

No.03 & 04, constructed over plot No.210 Block “D” Unit
No.07 Rafiq Square, Latifabad, Hyderabad and to deliver
the possession of the same to the plaintiff.

(c) To direct the defendant to pay mesne profit of last 03

years at the rate of Rs.10,000/- (Rupees Ten thousands
only) per month of each shops and also future manse profit
till the handing over the vacant physical possession of the
shops to the plaintiff.

(d) To restraining the defendant to not change or damages the

suit property neither handover the possession of suit shops
 to any other person is very necessary till the decision of
the suit.

(e) Cost of the suit be awarded to the plaintiff.

(f) Any other relief which this Honourable Court deems fit and
proper may be granted.
 -2-

It is inter alia stated in the plaint that appellant/plaintiff is

sole and absolute legal owner of shop Nos.3 & 4 constructed over Plot
No.210, Block-D, Unit No.7, Rafique Square, Latifabad, Hyderabad,
which were purchased by him by way of sale deed. It is further stated
that the respondent/ defendant is tenant in respect of suit shops since
1997/1998 against rent of Rs.3000/- per month of each shop excluding
utility bills. The monthly rent was enhanced to Rs.6000/- for each shop
since January, 2010 and at that time the respondent/defendant was
also defaulter for about 08 years in payment of previous rent and
despite requests by him and issuance of legal notice dated 01.10.2015,
respondent/defendant failed to pay the rent nor vacated the suit
shops; hence, he filed R.A. No.220 of 2015 in which
respondent/defendant denied the relationship of tenant and landlord,
the same proceeded and finally it was dismissed, the
respondent/defendant filed F.C.Suit No.46 of 2016 for Declaration and
Injunction against the appellant/plaintiff with the prayer that the shops
were transferred in favour of plaintiff by his father as benami which is
pending adjudication before the trial Court.
3. After service of notice, respondent/defendant filed his
written statement wherein he denied the allegations leveled against
him by stating that there is no relationship of landlord and tenant
between the parties and he is possessing the suit property with the
permission of his father and after his death, he is in possession of the
same as share holder. The learned counsel for respondent/defendant
filed application U/O 07 Rule 11 C.P.C, to which, objections were filed
and after hearing the parties, learned trial Court rejected the plaint
U/O. 07 Rule 11 C.P.C. vide impugned order dated 21.07.2018.
4. Learned counsel for appellant/plaintiff in his arguments
mostly re-urged the grounds of appeal contending further that the
learned trial Court has erred in law by not appreciating that the suit
filed by appellant/ plaintiff is purely of civil nature having been based
upon registered sale deed which has no nexus with the rent
proceedings and that the order passed by the trial Court suffers from
patent illegality and irregularity, the trial Court failed to understand the
nature of dispute and so also valuable rights of the appellant/plaintiff
involved in the matter, therefore, order dated 21.07.2018 may be set-
aside and case be remanded back with directions to trial Court to
proceed and decide the matter on merits rather on technicalities.
6. Conversely, the learned counsel for respondent/defendant
argued that in the rent application, the rented shop was shown as shop
bearing No.5 whereas in the suit filed by the appellant/plaintiff, the suit
property is shown as shop Nos.3 & 4. He further argued that Para
Nos.4 to 8 particularly of the
 -3-

plaint are stated in respect of the rent proceedings, which have

already been adjudicated upon and decided by the trial Court vide
order dated 21.10.2017 and this order has attained its finality as the
same has not been challenged by the appellant/plaintiff. He further
argued that the suit filed by the appellant/ plaintiff is nothing but
counterblast of F.C.Suit No.46 of 2016 filed by respondent/defendant
regarding declaration of sale deed as benami transaction which was
executed by his father in the name of appellant/ plaintiff, as benami.
He further argued that the appellant/plaintiff accrued no cause of
action to file suit nor he has any legal character in the suit property
and that the suit is barred under Article 142 of Limitation Act and so
also Section 42 of Specific Relief Act as the time is to be counted from
the date of dispossession while the respondent/defendant is in
possession since 1996/1997. He finally argued that the order passed
by learned trial Court is lawful, legal and does not require interference
by this Court, therefore, appeal may be dismissed. In support of his
arguments, he relied upon the case laws reported as 2010 YLR 2759
(Lahore) and 2007 YLR 2134 (Karachi).
7. I have heard learned counsel for the parties and gone
through the material available on record including the case laws relied
upon by learned counsel for respondent.
Now point for determination of the lis, are as under:

POINTS

(i) Whether impugned order dated 21.07.2018 requires

any interference of this Court?.

(ii) What should the judgment be?

My findings on points (I) and (II) are as under:-

FINDINGS
POINT NO.I Affirmative.
POINT NO.II Appeal allowed as under.

REASONS
POINT NO.I

8. Per material available on record, the plaintiff in Para No.2

of the plaint has claimed himself as sole, absolute and legal owner of
shop Nos.3 & 4 constructed upon Plot No.210 Block-D, Unit No.7,
Rafique Square Latifabad Hyderabad having been purchased by him by
way of registered sale deed. This is what which is prayed for by him at
prayer clause-(a) of the plaint and this
 -4-

particular statement made in the plaint and so also relief sought at

prayer clause-(a) is denied by respondent/defendant in his written
statement. If it is so; it is an important issue which requires evidence.
No doubt, in most of the paras of the plaint, the appellant has narrated
the facts regarding the dispute arose in between the appellant and
respondent with regard to monthly rent in respect of suit property and
the rent application filed by appellant/ plaintiff was proceeded and
ultimately dismissed but this particular fact gives sufficient and fresh
cause to the appellant/plaintiff to file suit for Declaration regarding his
legal character and status in respect of the suit property based upon
the registered sale deed which is also questioned by the
respondent/defendant as benami transaction vide F.C.Suit No.46 of
2016 pending before the trial Court. The arguments of the learned
counsel for respondent/defendant that the rent application filed by the
appellant/plaintiff was proceeded and dismissed by trial Court and such
order attained its finality also as the same was not challenged by filing
rent appeal and that appellant cannot agitate such grounds in the suit,
the same arguments are devoid of substance because dismissal of rent
application filed by appellant/plaintiff would not mean that he is
precluded from seeking declaration regarding his status in respect of
suit property. Even otherwise, the Rent Controller while deciding the
rent application has limited scope only to decide the relationship in
between the parties as landlord and tenant and so also other issues
relating to the rent and he while deciding such dispute has no
authority to declare title of any party regarding the property in dispute
and for that purpose it is only the Civil Court to adjudicate upon such
rights of the parties and decide it in accordance with law. His next
argument that the appellant/plaintiff in prayer of the rent application
only sought eviction of the respondent/defendant of shop No.5 and no
prayer was made regarding shops Nos.3 & 4, his like argument is also
of no help to him as in Para No.2 of the rent application, the
appellant/plaintiff had shown himself as owner of shops Nos.3 & 4. Yet,
if the appellant/plaintiff did not make such prayer in the rent
application, again, I would say that this is no ground which may be put
in defence. His further argument that the suit is barred by law of
limitation, it transpires that order in question was passed on
21.07.2018 while the appeal is preferred on 20.08.2018 and thus it is
filed within the time. The case law relied upon by learned counsel for
respondent/defendant reported as 2010 YLR 2759 (Province of Punjab
and others Vs. Muhammad Iqbal & others) is on the point that suit
without seeking declaration would not be maintainable whereas
present is the suit in which not only declaration is sought by the
appellant regarding his ownership in respect of the suit shops but
consequential reliefs are also sought for. The other
 -5-

plasitum viz. (c) of this authority is in respect of delay of 117 days in

filing of revision application while the present appeal is filed within the
time and thus the same is quite different to that of the facts of case in
hand. The other authority (supra) reported as 2007 YLR 2134 (Karachi)
(Dhani Bux Vs. Ali Sher and others) is one which goes in favour of the
appellant in which it has been held that;-
Plasitum-(b)
“Article 120---Suit for declaration of title of disputed land---
Limitation---Such suit cannot be barred by limitation so
long as plaintiff ‘s right is a subsisting right and has not
been extinguished as this gives a right to a continuing
cause of action since every invasion thereof is a fresh
cause”.

It has further been held in the said authority at plasitum-(c)

that;-
“Right to sue accrues when the right in respect of which
the declaration is sought is denied or challenged by the
defendants and time would only start running when such
rights are actually interfered with---In such cases any fresh
cause of action would arise from the date of last attack of
the plaintiff’s right or denial thereof”.

Same is the position in the case in hand as firstly the

appellant/plaintiff filed rent application in which he could not succeed
and since he was claiming his ownership of suit property on the basis
of registered sale deed and the fact that respondent/defendant’s suit
bearing No.46/2016 for declaration of said registered sale deed of
appellant/plaintiff in respect of suit property as benami transaction, is
pending before the trial Court and this is the last attack as to his right
and character to the suit property, thus, he accrued fresh and
continuing cause to sue.
10. In view of above discussion, I am of the humble opinion
that the order passed by learned trial Court requires interference by
this Court. I therefore, answer point No.1 in affirmative.

POINT NO.II
11. In the light of the discussion aforesaid, the impugned order
passed by learned trial Court calls for interference by this Court.
Accordingly, the instant appeal is allowed and impugned order dated
21.07.2018 is set-aside and the matter is remanded back with
directions to learned trial Court to decide the same on merits after
framing issues and recording evidence of both the parties. The parties
to bear their own costs. Let the office to prepare such decree.
Announced in open court,
Given under my hand & seal of this Court, this the 26th day of March, 2019
 (MUHAMMAD FAZIL BOHIO)
VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
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B531A47AA678B91760B34C816736F4A4
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
Succession Application No.34 of 2019
Junaid Shamim S/o Shamim Akhtar Khan
Adult, Muslim, R/o House No.223, Block-A
Unit No.10, Latifabad Hyderabad………………………………………………
Applicant.
Versus
1. Mst. Shamim Ara Wd/o Shamim Akhtar Khan
2. Javed Shamim Khan S/o Shamim Akhtar Khan
3. Naveed Shamim Khan S/o Shamim Akhtar Khan
4. All Widow/sons of late S/o Shamim Akhtar Khan
Adults, Muslims, R/o House No.223, Block-A
Unit No.10, Latifabad, Hyderabad
5. General Public at Large Hyderabad………………………………..Opponents.

Mr. Muhammad Ahmed, advocate for the applicant

ORDER
19.03.2019
This order shall dispose of present succession application
filed U/s 372 of Succession Act, 1925 by the applicant in which it is
stated that deceased Shamim Akhtar Khan S/o Abdul Samad Khan,
father of applicant, opponents Nos.1 to 3 and husband of opponent
No.1 died on 12.09.2018 leaving behind him, applicant and opponent
No.1 to 3 as his surviving legal heirs. The deceased was government
employee, who during his service was maintaining an Account bearing
No.3011502043 in National Bank of Pakistan, Unit No.7, Latifabad
Branch, Hyderabad shown in the schedule annexed with the
application. The Applicant approached the concerned bank for
providing bank statement and issuance of certificate of shown account
but to no avail.

In support of the case, the affidavits of two independent

witnesses namely Kamil Baig S/o Naseem Baig and Rizwan Ahmed
Qureshi S/o Abdul Bashir are filed, who have stated that there is no
other legal heir of deceased except the applicant and opponent Nos.1
to 3. Apart from this, affidavit of opponent No.3 showing himself as
attorney of opponents Nos.1 & 2 is also filed, who has extended his no
objection in favour of applicant. As regards the appearance of two legal
heirs viz opponent Nos.1 & 2, learned counsel for the applicant argued
that opponent No.1 is old age lady lying on bed while opponent No.2 is
at Karachi and unable to attend for which he drawn Court attention to
the case law reported as 2018 SCMR 762 wherein it has been observed
as fallows;-

“Not necessary for each and every legal heir to be properly

represented and appear before the Court to get a
succession certificate---Court on receiving such application
had to issue / grant succession certificate in favour of all
the legal heirs by considering and determining their
respective share by complying with procedural
requirements of law in such regard”
-2-

Heard learned counsel and perused the material available

on record.

The applicant has prayed for succession certificate in

favour of applicant and opponent No.1 to 3 to receive the amount of
Rs.216,861.31 lying in Account No.3011502043 from the bank as
shown in the schedule annexed with application. The notice was
published in daily newspaper “Express” Karachi dated 28.01.2019,
however, nobody has come forward to object to the prayer made by
the applicant. In addition to this, report was called from Mukhtiarkar
concerned who vide his letter dated 04.02.2019 reported that
deceased died leaving behind the applicant and opponent No.1 to 3 as
his legal heirs. This is what which is reported by SHO Police Station B-
Section Latifabad vide letter dated 31.01.2019. The Deputy Director
NADRA Hyderabad Zone in his report dated 28.01.2019 has also shown
family details of deceased as applicant, opponent No.1 to 3 as his legal
heirs. In addition to this Branch Manager National Bank of Pakistan
Latifabad No.8 Branch, Hyderabad in his report dated 30.01.2019
stated that the deceased was having PLS Account No.3011502043
(Joint). He has also shown in his report the principle amount with mark-
up as Rs.219,594.08 as on 12.01.2019.

Record shows that there is no impediment nor any will has

been found. Therefore, for the aforesaid reasons, the application is
allowed. The Accountant District and Sessions Court, Hyderabad is
appointed as Commissioner with directions to withdraw amount of
Rs.219,594.08 from National Bank of Pakistan, Latifabad No.8 Branch,
Hyderabad lying in Account No.3011502043 and disburse the same to
the heirs of deceased Shamim Akhtar as per their respective shares
according to Muhammadan Law subject to furnishing P.R. Bond of the
applicant in equivalent amount shown in the balance of the deceased
and such report be submitted before this court within 30 days. The
Succession Application stands disposed of accordingly.

Pronounced in open Court.

 Given under my hand and the seal of this Court on this 19 th day
of March, 2019.

(MUHAMMAD FAZIL BOHIO)

VIth Additional District Judge, Hyderabad
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C15D0326267D1939D0112F34F0DFA57A
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
Succession Application No.07 of 2019
Muhammad Arsalan Sheikh
S/o Late Muhammad Ahsan Shaikh
Adult, Muslim, resident of House No.G-55
Shakhipir Road Liaquat Colony, Hyderabad Sindh………………….Applicant

Versus

1. Mst. Shahida Wd/o Late Muhammad Ahsan Sheikh

2. Mst. Sara Sheikh D/o Late Muhammad Ahsan Sheikh
3. Mst. Zara Sheikh D/o Late Muhammad Ahsan Sheikh
4. Aiman Sheikh D/o Late Muhammad Ahsan Sheikh
5. Afshan Sheikh D/o Late Muhammad Ahsan Sheikh
Sr. No.1 to 3 adults, Sr. No.4 & 5 minors, through
their mother and natural guardian opponent No.1
Residents of House No.G-55, Sakhipir Road
Liaquat Colony, Hyderabad
6. Manager Allied Bank Limited
Saddar Branch, Hyderabad
7. General Public at large…………………………………………………Opponents.
Mr. Inayat Ali Khatri, advocate for the applicant

ORDER
20.03.2019
This order shall dispose of present succession application
filed U/s 373 of Succession Act, 1925 by the applicant in which it is
stated that deceased Muhammad Ahsan Sheikh S/o Haji Abdul Ghani,
father of applicant, opponents Nos.2 to 5 and husband of opponent
No.1 died on 22.08.2018 leaving behind him, applicant and opponent
No.1 to 5 as his surviving legal heirs. The deceased was government
employee of H.D.A, who during his lifetime was maintaining an Account
bearing No.0010003036650011 in Allied Bank Limited Saddar Branch
such schedule is annexed with the application. The Applicant
approached the concerned bank for providing bank statement and
issuance of certificate of shown account but to no avail.

In support of the case, the affidavits of two independent

witnesses namely Muhammad Fareed S/o Muhammad Qasim and Abid
Khan S/o Ghulam Muhammad are filed, who have stated that there is
no other legal heir of deceased except the applicant and opponent
Nos.1 to 5. Apart from this, affidavits of opponent Nos.1 to 3 are also
filed extending no objection in favour of applicant, however, opponent
No.3 did not appear before the Court and as per applicant and
opponent Nos.1 & 2, she has gone to Karachi and is unable to attend.
 -2-

Heard learned counsel and perused the material available

on record.

The applicant has prayed for succession certificate in

favour of applicant and opponents Nos.1 to 5 to receive the amount
from the bank as shown in the schedule annexed with application. The
notice was published in daily newspaper “UMMAT” Hyderabad dated
18.01.2019, however, nobody has come forward to object to the prayer
made by the applicant. In addition to this, report was called from
Mukhtiarkar concerned who vide his letter dated 08.02.2019reported
that deceased died leaving behind the applicant and opponent No.1 to
5 as his legal heirs. This is what which is reported by SHO Police
Station Sakhi Pir vide letter dated 22.01.2019 and the Deputy Director
NADRA Hyderabad Zone in his report dated 21.01.2019. In addition to
this, the Manager Allied Bank Saddar Branch, Hyderabad in his report
dated 20.03.2019 stated that the deceased was having Account
No.0010003036650011. He has also shown in his report the principle
amount with mark-up as Rs.848,798.82 as on 20.03.2019.

Record shows that there is no impediment nor any will has

been found. Therefore, for the aforesaid reasons, the application is
allowed. The Accountant District and Sessions Court, Hyderabad is
appointed as Commissioner with directions to withdraw amount of Rs.
848,798.82 from Allied Bank Saddar Branch, Hyderabad lying in
Account No.0010003036650011 and disburse the same to the heirs of
deceased Muhammad Ahsan Shaikh i.e. opponents Nos.1 to 3 as per
their respective shares according to Muhammadan Law subject to
furnishing P.R. Bond of the applicant in equivalent amount shown in
the balance of the deceased and such report be submitted before this
court within 30 days. However, opponents Nos.4 & 5 are minors,
therefore, their share be deposited in a profitable Government scheme,
which shall be withdrawn by them on attaining the age of majority
after proper verification and identification. The Succession Application
stands disposed of accordingly.

Pronounced in open Court.

Given under my hand and the seal of this Court on this 20 th day
of March, 2019.

(MUHAMMAD FAZIL BOHIO)

VIth Additional District Judge, Hyderabad
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Document Code: C6E2576CD29D62229B2698F66F25197C
IN THE COURT OF IXTH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.

Sessions Case No.16 of 2019

The State

Versus

1. Muhammad Afaque S/o Muhammad Ilyas

2. Aijaz S/o Muhammad Saeed Shaikh……………..…………………………Accused.

Crime No.155/2018
PS B-Section Latifabad
U/s 324, 353, 34 PPC

Mr. Nasir Durrani, learned DDPP for the State

Mr. Amjad Hussain Shar, learned counsel for accused

J U D G E M E N T
25-03-2019
The above named accused have been sent up to stand
their trial in the above case and crime by Police Station B-Section
Latifabad Hyderabad for the offence punishable U/s 324, 353, 34 PPC,
vide challan admitted on 17.12.2018.
2. Facts, in brief, are that on 03.12.2018 at 0445 hours SIP
Amjad Hussain Chandio, registered FIR of present case complaining
that on the same say he alongwith his staff PC Khalid, PC Basit Ali and
PC Shafique left Police Station in Government Mobile No.SPC-605, vide
entry No.25 at 0010 hours. During patrol, they arrived near Bilal Masjid
Unit No.10, Latifabad where they noticed two persons riding on
motorcycle coming towards them and they watching the police party
turned their motorcycle back, to whom they warned to stop but they
opened direct firing upon police party with intention to commit their
murder and they also, in retaliation also made firing and further
chased them and during encounter one person fell down and
motorcycle was also slipped. As a result, they came near to the
accused who raised their hands up. The complainant disarmed both
the accused. They also saw that blood was oozing from one of the
accused from his right leg below the knee to whom they provided first
aid. The complainant appointed PC Khalid and PC Basit Ali as mashirs
and on inquiry one accused disclosed his name as Muhammad Afaque
S/o Muhammad Ilyas and the pistol recovered from him unlicensed
which was checked and found empty. It was of black colour with plastic
strips on its butt having words inscribed on its barrel as “MADE AS
ITALY BY MILLATRP CAL MM 30”. The other accused disclosed his name
as Aijaz S/o Muhammad Saeed Ahmed. The pistol recovered from his
possession was of black colour
 -2-
having plastic strips on its butt with wording inscribed on its barrel as
“MADE IN PAKISTAN CAL7.63 MM 30 BR” with one empty magazine
which he introduced as unlicensed. The motorcycle was also taken into
custody, which was without number of Unique company, black colour,
Model unknown, Engine No.DSE-1563367, Chassis No.DSC-2565351,
which was disclosed by the accused without papers, therefore, the
same was seized U/S. 550 Cr.P.C. The complainant also recovered 04
empty shells of 30-Bore and 05 empty cartridges of SMG from the
place of occurrence. Further, the recovered property was sealed at
spot and thereafter complainant prepared such memo of arrest and
recovery by keeping on the bonnet of mobile upon the torch light and
then brought the accused and property at Shah Bhitai Government
Hospital for treatment and leaving the police guard there, he came at
Police Station and registered the present FIR against the accused and
so also two other FIRs U /S. 23-A Sindh Arms Act against them
respectively.
3. As result of investigation, the investigation officer
submitted challan against both the accused before the area
Magistrate, who accepted the challan and sent up the case to the
Court of Honourable Sessions Judge, Hyderabad, on jurisdictional
ground and wherefrom the R & Ps received by this Court for its
disposal according to law.
4. In compliance of Section 265-C Cr.P.C. necessary case
papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.2, to which they
did not plead guilty and claimed to be tried vide their pleas were
recorded at Ex.2/A & 2/B respectively.
5. Prosecution examined complainant as PW-1 at Ex.3, he
produced departure and arrival entry, memo of arrest and recovery
and FIR at Ex.3/A to 4/C respectively, mashir of the incident as PW-2 at
Ex.4 and Investigation Officer SIP Mujahid Hussain as PW-3 at Ex.5, he
produced letter for FSL at Ex.5/A, FSL report at Ex.5/B and entry of
Malkhana at Ex.5/C. Thereafter learned DDPP for the State closed the
side in evidence vide his statement at Ex.6.
6. Statements U/s 342 Cr.P.C. of accused were recorded at
Ex.7 & 8 respectively, who denied all the allegations leveled against
them by the prosecution and claimed to be innocent, however, they
did not opt to examine themselves on oath or produce witnesses in
defence.
7. Learned D.D.P.P. for the State argued that prosecution
witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
8. Learned counsel for the accused, on the other hand,
argued that prosecution case is highly doubtful contending further that
there is no cogent
-3-

evidence with the prosecution and that P.Ws examined have

contradicted to each other on material facts. He further argued that
the accused are innocent, therefore, they may be acquitted from the
charge.
9. I have heard learned D.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-
(i) Whether on 03.12.2018 at 0330 hours near Bilal Masjid at
the road leading to Naichani Goth, Unit No.10, Latifabad,
Hyderabad both accused in furtherance of their common
intention to commit their murder, fired upon complainant
party with intention to commit their murder and did an act
with such intention and under such circumstances that if
by the said act they had committed Qatl of complainant
party they would have been guilty of Qatl-e-Amd and also
prevented them from discharging their lawful duties?

(ii) What offence if any, has been committed by the accused?

My findings on the above points with reasons thereto are

as under:-
FINDINGS

POINT NO.I Doubtful.

POINT NO.II Accused are acquitted U/s 265-H(i) Cr.P.C.

REASONS

POINT NO.I

10. To prove this appoint, the prosecution examined 03

witnesses out of which, PW-1 and PW-2 are examined as star witnesses
of the entire episode. As far as the examination-in-chief of these PWs is
concerned, they tried to shift their burden, however, they made
contradictory statements to each other. PW-1 in his examination-in-
chief deposed that the accused only tried to escape and this PW in his
cross to a question deposed that the accused did not start running
towards either side whereas PW-2, the mashir of arrest and recovery
and so also witness of occurrence in his chief deposed that the
accused on watching police mobile started plying their motorcycle
towards their backside to whom they followed and after they covered
about 30/40 yards, they came closure to them and firing started. This
PW in his cross made a volunteer disclosure supporting his stance
taken in his chief as to this aspect of the matter. PW-1 in his cross
deposed that there was distance of about 15 meters in between police
party and accused at the time of firing whereas PW-2 introduced this
distance as 40/50 feet. PW-1 in his chief deposed that the incident
taken place about 200 feet away from Bilal Masjid and at this distance
-4-

from Masjid they arrested the accused and effected recovery from
them whereas PW-2 deposed otherwise that the accused were arrested
about 40 meters away from Bilal Masjid which becomes the distance of
about 131 feet plus. PW-1 deposed that they all made five fires in air
whereas PW-2 deposed otherwise that they made in all 7/8 fires in air.
PW-1 in his chief first of all did not show the source of light upon which
he prepared the memo of arrest and recovery. This is what which is the
version of PW-2 made by him in his chief. PW-1 in his cross admitted
that there was dark of night at place of incident; admitting further that
he did not show the source of light in his chief upon which he prepared
the mashirnama. This PW further claimed in his cross that he prepared
mashirnama by keeping on the bonnet of mobile whereas PW-2
deposed differently that the memo of arrest and recovery was
prepared for about 4/5 feet away from the mobile. Admittedly, the joint
memo of arrest and recovery do mention specific wording/description
inscribed on the barrels of pistols allegedly recovered from the
accused respectively. Both these PWs in their chief remained silent as
to such disclosure. This is what which is admitted by these PWs in their
respective cross examinations. Not only this but they deposed that
they do not remember as to what kind of description was inscribed on
the barrels of the pistols. PW-1 deposed that Naichani road leads from
north to south whereas PW-2 shown his ignorance as to this aspect of
the matter. In addition to above though it was claimed by the
prosecution that accused Afaque received firearm injury during
encounter at place of occurrence and he was also admitted in Hospital
for treatment but nothing is brought on record to support their like
stance. As regards the evidence of PW-3, the Investigation Officer, his
statement is formal and needs no discussion. However, he admitted
that he sent the property to the expert for opinion after delay of 04
days. He denied that he did not explain such position in his chief. It is
settled principle of law that even if a single contradictory statement is
found in the prosecution case the benefit whereof could got to accused
always, this case in hand is full of flaws and material irregularities.
Reliance in this regard is respectfully placed upon the case reported as
2009 SCMR 230. In view of above discussion I am of the humble view
that prosecution has failed to prove its case against the accused
beyond any reasonable shadow of doubt. Accordingly, the point under
discussion is answered as doubtful and not proved.
POINT NO.II

11. In view of the aforementioned appraisal of evidence, I am

of the humble view that the prosecution has miserably failed to bring
home the charge against the accused beyond any shadow of
reasonable doubt, hence,
 -5-

accused Muhammad Afaque S/o Muhammad Ilyas Yousuf Zai Pathan

and Aijaz S/o Muhammad Saeed Shaikh are given benefit of doubt and
stand acquitted of the charge U/s 265-H(i) Cr.P.C. Accused Aijaz is
present on bail, his bail bond stands cancelled and surety is discharged
whereas accused Muhammad Afaque produced in custody, is
remanded back to custody with directions to Jail Superintendent to
release him forthwith, if he is not required in any other custody
case/crime.
Pronounced in open Court this 25th of March 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.

CASE PROPERTY ORDER U/S 517 CR.P.C

The case property as shown in the charge sheet viz. 04

empties of 30-Bore and 05 empty cartridges of SMG be deposited in
District Armoury for its disposal according to law after expiry of appeal
period.
Dated this 25th of March, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
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8B6B913035DE7279DD6A67ACA541FA93
IN THE COURT OF IXTH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.
Sessions Case No.17 of 2019
The State
Versus
Muhammad Afaque S/o Muhammad Ilyas……………..…………………………Accused.

Crime No.156/2018
PS B-Section Latifabad
U/s 23-A Sindh Arms Act

Mr. Nasir Durrani, learned DDPP for the State

Mr. Amjad Hussain Shar, learned counsel for accused

J U D G E M E N T
25-03-2019
The above named accused has been sent up to stand his
trial in the above case and crime by Police Station B-Section Latifabad
Hyderabad for the offence punishable U/s 23-A Sindh Arms Act, vide
challan admitted on 17.12.2018.
2. Facts of the present case in nutshell are that complainant
SIP Amjad Hussain Chandio, registered the present FIR on 13.12.2018
at 0515 hours alleging therein that already arrested accused namely
Muhammad Afaque S/o Muhammad Ilyas Yousuf Zai in injured
condition, in Crime No.155/2018, U/S. 324, 353, 34 PPC was found
possessing an unlicensed pistol without number alongwith empty
magazine, hence, present FIR was registered.
3. As result of investigation, the investigation officer
submitted challan against both the accused before the area
Magistrate, who accepted the challan and sent up the case to the
Court of Honourable Sessions Judge, Hyderabad, on jurisdictional
ground and wherefrom the R & Ps received by this Court for its
disposal according to law.
4. In compliance of Section 265-C Cr.P.C. necessary case
papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.2, to which they
did not plead guilty and claimed to be tried vide his plea was recorded
at Ex.2/A.
5. Prosecution examined complainant as PW-1 at Ex.3, he
produced departure and arrival entry, memo of arrest and recovery
and FIR at Ex.3/A to 4/C respectively, mashir of the incident as PW-2 at
Ex.4 and Investigation Officer SIP Mujahid Hussain as PW-3 at Ex.5, he
produced letter for FSL at Ex.5/A, FSL report at Ex.5/B and entry of
Malkhana at Ex.5/C. Thereafter learned DDPP for the State closed the
side in evidence vide his statement at Ex.6.
 -2-

6. Statement U/s 342 Cr.P.C. of accused was recorded at

Ex.8, who denied all the allegations leveled against him by the
prosecution and claimed to be innocent, however, he did not opt to
examine himself on oath or produce witnesses in defence.
7. Learned D.D.P.P. for the State argued that prosecution
witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
8. Learned counsel for the accused, on the other hand,
argued that prosecution case is highly doubtful contending further that
there is no cogent evidence with the prosecution and that P.Ws
examined have contradicted to each other on material facts. He further
argued that the accused are innocent, therefore, they may be
acquitted from the charge.
9. I have heard learned D.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-
(i) Whether on 03.12.2018 at 0330 hours near Bilal Masjid at
the road leading to Naichani Goth, Unit No.10, Latifabad
Hyderabad, accused was arrested in Crime No.155/2018,
U/S. 324, 353, 34 PPC after an encounter and was found
possessing an unlicensed pistol without number alongwith
empty magazine.

(ii) What offence if any, has been committed by the accused?.

My findings on points (I) and (II) are as under:-
FINDINGS

POINT NO.I Doubtful.

POINT NO.II Accused is acquitted U/s 265-H(i) Cr.P.C.

REASONS
POINT NO.I

10. To prove this appoint, the prosecution examined 03

witnesses out of which, PW-1 and PW-2 are examined as star witnesses
of the entire episode. As far as the examination-in-chief of these PWs is
concerned, they tried to shift their burden, however, they made
contradictory statements to each other. PW-1 in his examination-in-
chief deposed that the accused only tried to escape and this PW in his
cross to a question deposed that the accused did not start running
towards either side whereas PW-2, the mashir of arrest and recovery
and so also witness of occurrence in his chief deposed that the
accused on watching police mobile started plying their motorcycle
towards their backside to whom they followed and after they covered
about 30/40 yards, they came
 -3-

closure to them and firing started. This PW in his cross made a

volunteer disclosure supporting his stance taken in his chief as to this
aspect of the matter. PW-1 in his cross deposed that there was
distance of about 15 meters in between police party and accused at
the time of firing whereas PW-2 introduced this distance as 40/50 feet.
PW-1 in his chief deposed that the incident taken place about 200 feet
away from Bilal Masjid and at this distance from Masjid they arrested
the accused and effected recovery from him whereas PW-2 deposed
otherwise that the accused was arrested about 40 meters away from
Bilal Masjid which becomes the distance of about 131 feet plus. PW-1
in his chief first of all did not show the source of light upon which he
prepared the memo of arrest and recovery. This is what which is the
version of PW-2 made by him in his chief. PW-1 in his cross admitted
that there was dark of night at place of incident; admitting further that
he did not show the source of light in his chief upon which he prepared
the mashirnama. This PW further claimed in his cross that he prepared
mashirnama by keeping on the bonnet of mobile whereas PW-2
deposed differently that the memo of arrest and recovery was
prepared for about 4/5 feet away from the mobile. Admittedly, the joint
memo of arrest and recovery do mention specific wording/description
inscribed on the barrel of pistol allegedly recovered from the accused.
Both these PWs in their chief remained silent as to such disclosure.
This is what which is admitted by these PWs in their respective cross
examinations. Not only this but they deposed that they do not
remember as to what kind of description was inscribed on the barrel of
the pistol. PW-1 deposed that Naichani road leads from north to south
whereas PW-2 shown his ignorance as to this aspect of the matter. As
regards the evidence of PW-3, the Investigation Officer, his statement
is formal and needs no discussion. However, he admitted that he sent
the property to the expert for opinion after delay of 04 days. He denied
that he did not explain such position in his chief but his like denial is
reluctant. It is settled principle of law that even if a single contradictory
statement is found in the prosecution case the benefit whereof could
got to accused always, this case in hand is full of flaws and material
irregularities. Reliance in this regard is respectfully placed upon the
case reported as 2009 SCMR 230. In view of above discussion I am of
the humble view that prosecution has failed to prove its case against
the accused beyond any reasonable shadow of doubt. Accordingly,
point under discussion is answered as doubtful and not proved.
POINT NO.II
11. In view of the aforementioned appraisal of evidence, I am
of the humble view that the prosecution has miserably failed to bring
home the charge against the accused beyond any shadow of
reasonable doubt, hence,
 -4-

accused Muhammad Afaque S/o Muhammad Ilyas Yousuf Zai Pathan is

given benefit of doubt and stands acquitted of the charge U/s 265-H(i)
Cr.P.C. He is produced in custody, is remanded back to custody with
directions to Jail Superintendent to release him forthwith, if he is not
required in any other custody case/crime.
Pronounced in open Court this 25th of March 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.

CASE PROPERTY ORDER U/S 517 CR.P.C

The case property as shown in the charge sheet viz. one

black colour pistol having black putties over the butt alongwith empty
magazine be deposited in District Armoury for its disposal according to
law after expiry of appeal period.
Dated this 25th of March, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
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3D859460613EE84A9B0544A4848F21C5
IN THE COURT OF IXTH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.
Sessions Case No.18 of 2019
The State
Versus
Aijaz S/o Muhammad Saeed Shaikh…….……………..…………………………Accused.

Crime No.157/2018
PS B-Section Latifabad
U/s 23-A Sindh Arms Act

Mr. Nasir Durrani, learned DDPP for the State

Mr. Amjad Hussain Shar, learned counsel for accused

J U D G E M E N T
25-03-2019
The above named accused has been sent up to stand his
trial in the above case and crime by Police Station B-Section Latifabad
Hyderabad for the offence punishable U/s 23-A Sindh Arms Act, vide
challan admitted on 17.12.2018.
2. Facts of the present case in nutshell are that complainant
SIP Amjad Hussain Chandio, registered the present FIR on 13.12.2018
at 0530 hours alleging therein that already arrested accused namely
Aijaz S/o Muhammad Saeed Ahmed Shaikh in Crime No.155/2018, U/S.
324, 353, 34 PPC was found possessing an unlicensed pistol without
number alongwith empty magazine, hence, present FIR was registered.
3. As result of investigation, the investigation officer
submitted challan against both the accused before the area
Magistrate, who accepted the challan and sent up the case to the
Court of Honourable Sessions Judge, Hyderabad, on jurisdictional
ground and wherefrom the R & Ps received by this Court for its
disposal according to law.
4. In compliance of Section 265-C Cr.P.C. necessary case
papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.2, to which they
did not plead guilty and claimed to be tried vide his plea was recorded
at Ex.2/A.
5. Prosecution examined complainant as PW-1 at Ex.3, he
produced departure and arrival entry, memo of arrest and recovery
and FIR at Ex.3/A to 4/C respectively, mashir of the incident as PW-2 at
Ex.4 and Investigation Officer SIP Mujahid Hussain as PW-3 at Ex.5, he
produced letter for FSL at Ex.5/A, FSL report at Ex.5/B and entry of
Malkhana at Ex.5/C. Thereafter learned DDPP for the State closed the
side in evidence vide his statement at Ex.6.
 -2-

6. Statement U/s 342 Cr.P.C. of accused was recorded at

Ex.8, who denied all the allegations leveled against him by the
prosecution and claimed to be innocent, however, he did not opt to
examine himself on oath or produce witnesses in defence.
7. Learned D.D.P.P. for the State argued that prosecution
witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
8. Learned counsel for the accused, on the other hand,
argued that prosecution case is highly doubtful contending further that
there is no cogent evidence with the prosecution and that P.Ws
examined have contradicted to each other on material facts. He further
argued that the accused are innocent, therefore, they may be
acquitted from the charge.
9. I have heard learned D.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-
(i) Whether on 03.12.2018 at 0330 hours near Bilal Masjid at
the road leading to Naichani Goth, Unit No.10, Latifabad
Hyderabad, accused was arrested in Crime No.155/2018,
U/S. 324, 353, 34 PPC after an encounter and was found
possessing an unlicensed pistol without number alongwith
empty magazine.

(ii) What offence if any, has been committed by the accused?.

My findings on points (I) and (II) are as under:-
FINDINGS

POINT NO.I Doubtful.

POINT NO.II Accused is acquitted U/s 265-H(i) Cr.P.C.

REASONS
POINT NO.I

10. To prove this appoint, the prosecution examined 03

witnesses out of which, PW-1 and PW-2 are examined as star witnesses
of the entire episode. As far as the examination-in-chief of these PWs is
concerned, they tried to shift their burden, however, they made
contradictory statements to each other. PW-1 in his examination-in-
chief deposed that the accused only tried to escape and this PW in his
cross to a question deposed that the accused did not start running
towards either side whereas PW-2, the mashir of arrest and recovery
and so also witness of occurrence in his chief deposed that the
accused on watching police mobile started plying their motorcycle
towards their backside to whom they followed and after they covered
about 30/40 yards, they came
 -3-

closure to them and firing started. This PW in his cross made a

volunteer disclosure supporting his stance taken in his chief as to this
aspect of the matter. PW-1 in his cross deposed that there was
distance of about 15 meters in between police party and accused at
the time of firing whereas PW-2 introduced this distance as 40/50 feet.
PW-1 in his chief deposed that the incident taken place about 200 feet
away from Bilal Masjid and at this distance from Masjid they arrested
the accused and effected recovery from him whereas PW-2 deposed
otherwise that the accused was arrested about 40 meters away from
Bilal Masjid which becomes the distance of about 131 feet plus. PW-1
in his chief first of all did not show the source of light upon which he
prepared the memo of arrest and recovery. This is what which is the
version of PW-2 made by him in his chief. PW-1 in his cross admitted
that there was dark of night at place of incident; admitting further that
he did not show the source of light in his chief upon which he prepared
the mashirnama. This PW further claimed in his cross that he prepared
mashirnama by keeping on the bonnet of mobile whereas PW-2
deposed differently that the memo of arrest and recovery was
prepared for about 4/5 feet away from the mobile. Admittedly, the joint
memo of arrest and recovery do mention specific wording/description
inscribed on the barrel of pistol allegedly recovered from the accused.
Both these PWs in their chief remained silent as to such disclosure.
This is what which is admitted by these PWs in their respective cross
examinations. Not only this but they deposed that they do not
remember as to what kind of description was inscribed on the barrel of
the pistol. PW-1 deposed that Naichani road leads from north to south
whereas PW-2 shown his ignorance as to this aspect of the matter. As
regards the evidence of PW-3, the Investigation Officer, his statement
is formal and needs no discussion. However, he admitted that he sent
the property to the expert for opinion after delay of 04 days. He denied
that he did not explain such position in his chief but his like denial is
reluctant. It is settled principle of law that even if a single contradictory
statement is found in the prosecution case the benefit whereof could
got to accused always, this case in hand is full of flaws and material
irregularities. Reliance in this regard is respectfully placed upon the
case reported as 2009 SCMR 230. In view of above discussion I am of
the humble view that prosecution has failed to prove its case against
the accused beyond any reasonable shadow of doubt. Accordingly,
point under discussion is answered as doubtful and not proved.
POINT NO.II
11. In view of the aforementioned appraisal of evidence, I am
of the humble view that the prosecution has miserably failed to bring
home the charge against the accused beyond any shadow of
reasonable doubt, hence,
 -4-

accused Aijaz S/o Muhammad Saeed Shaikh is given benefit of doubt

and stands acquitted of the charge U/s 265-H(i) Cr.P.C. He is present
on bail, his bail bond stands cancelled and surety is discharged.
Pronounced in open Court this 25th of March 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.

CASE PROPERTY ORDER U/S 517 CR.P.C

The case property as shown in the charge sheet viz. one

black colour pistol having black putties over the butt alongwith empty
magazine be deposited in District Armoury for its disposal according to
law after expiry of appeal period.
Dated this 25th of March, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
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B0DB89E8FC9360D4D8CFCF75E4B65FD5
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
Succession Application No.91 of 2019
Muhammad Salman Khan S/o Muhammad Imran Khan
Muslim, adult, by caste Khan, R/o House No.1546
Muhallah Mumtaz Colony, Gari Khata, Hyderabad………………………Applicant.
Versus
1. Saba Khan D/o Muhammad Imran Khan
2. Eraj Khan D/o Muhammad Ikran Khan
3. Taluka Education Officer Primary Female
Latifabad Hyderabad
4. District Education Officer Hyderabad
5. Public at Large…………………………………………………………..Opponents.

Mr. Sabir Hussain, advocate for the applicant

ORDER
25.03.2019

This order shall dispose of present succession application filed U/s 372 of
Succession Act, 1925 by the applicant in which it is stated that deceased Najma Naz W/o
Muhammad Imran Khan, mother of applicant and opponents Nos.1 & 2 died on
02.12.2017 leaving behind her, applicant and opponent No.1 & 2 as her surviving legal
heirs. The deceased was government employee of Education Department serving as
Primary School Teacher in Grade-9, who left certain debts i.e. pension, G.P. Fund, LPR,
Death Claim, Benevolent Fund, Financial Assistance and Group Insurance shown in the
schedule annexed with the application. The Applicant approached the concerned bank
for providing the service benefits but to no avail.
In support of the case, the affidavits of two independent witnesses
namely Muhammad Rizwan S/o Muhammad Ahsan and Rehan Khan S/o Munna Khan
are filed, who have stated that there is no other legal heir of deceased except the
applicant and opponent Nos.1 & 2. Apart from this, affidavit of opponent No.1 is also
filed while opponent No.2 is shown minor of about 15 years, who has extended her no
objection in favour of applicant.
Heard learned counsel and perused the material available on record.
The applicant has prayed for succession certificate in favour of applicant
and opponent No.1 & 2 to receive service benefit of the deceased shown in the
schedule annexed with the instant application as she was serving in Education
Department as Primary School Teacher. The notice was published in daily newspaper
“Qaumi” dated 20.03.2019, however, nobody has come forward to object to the prayer
made by the applicant. In addition to this, report was called from Mukhtiarkar
concerned who vide his letter dated 21.03.2019 reported that deceased died leaving
behind the applicant and opponent No.1 & 2 as her legal heirs. This is what which is
reported by SHO Police Station Makki Shah, Hyderabad vide letter dated 21.03.2019.
 -2-

The Deputy Director NADRA Hyderabad Zone in his report dated 19.03.2019 has also
shown family details of deceased as applicant, opponent No.1 & 2 as her legal heirs. In
addition to this, Taluka Education Officer (F.P) City, Hyderabad vide letter dated
21.03.2019, has reported that deceased Najma Naz left Rs.14,29,274/- as Gratuity,
Rs.289,191/- as LPR, Rs.33,576/- as pension, Rs.12,00,000/- as Financial Assistance,
Rs.600,000/- as Group Insurance whereas GP Fund, Funeral Expenses and Benevolent
Fund will be decided by D.A.O Hyderabad and D.C. Hyderabad respectively.
Record shows that there is no impediment nor any will has been found.
To a query, regarding the husband of deceased namely Muhammad Imran Khan because
his name does not find place in the memo of application as one of the legal heirs of
deceased, the learned counsel for applicant argued that Muhammad Imran Khan had
given divorce to the deceased in writing on 12.01.2016 and such document is annexed
with the application and that since the deceased was Government employee, the
Mukhtiarkar Taluka City on the application submitted by her son, conducted spot
enquiry and issued Heirship Certificate which does not reflect Muhammad Imran Khan
as legal heir of deceased due to the fact that he had given divorce to her. Admittedly,
the notice was published in the daily newspaper “Qaumi” but nobody turned up which
fact goes to support the arguments advanced by learned counsel for applicant.
Therefore, for the aforesaid reasons, the application is allowed. The Accountant District
and Sessions Court, Hyderabad is appointed as Commissioner with directions to collect
the entire due amount of service benefits of deceased i.e. Gratuity, LPR, Pension,
Financial Assistance, Group Insurance, GP Fund, Funeral Expenses and Benevolent Fund
from concerned quarter as per Government/Pensionary Rules and disburse in between
applicant and opponent No.1 being legal heirs of deceased Najma Naz as per their
respective shares subject to furnishing P.R. Bond of the applicant in equivalent amount
shown in the balance of the deceased and such report be submitted before this Court.
However, opponent No.2 is minor, therefore, her share be deposited in a profitable
Government scheme, which shall be withdrawn by her on attaining the age of majority
after proper verification and identification. The Succession Application stands disposed
of accordingly.
Pronounced in open Court.
Given under my hand and the seal of this Court on this 25th day of March, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE, HYDERABAD
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AA13948EF4FEE733D9D956BE746AF4AF
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
Succession Application No.44 of 2019
Saeed Ahmed Khan S/o Rashid Ahmed Khan
Adult, Muslim, R/o House No.C/45, Block-A
Muhallah Unit No.8, Latifabad, Hyderabad………………………………….Applicant

Versus

1. Manager
National Bank of Pakistan
Latifabad Branch 91 Hyderabad
2. General Public at large…..…………………………………………………Opponents.

Mr. Asim Shabir Soomro, advocate for the applicant

ORDER
25.03.2019
This order shall dispose of present succession application
filed U/s 373 of Succession Act, 1925 by the applicant in which it is
stated that deceased Rashid Ahmed Khan S/o Shamshad Ahmed Khan,
father of applicant died on 10.01.2019 leaving behind him, applicant as
his surviving legal heir only. His mother also died on 28.01.2016 prior
to death of his father. The deceased during his lifetime was
maintaining an Account bearing No.4011586088 in National Bank of
Pakistan, Latifabad Unit No.8 Branch, Hyderabad and such schedule is
annexed with the application. The Applicant approached the concerned
bank for providing bank statement and issuance of certificate of shown
account but to no avail.

In support of the case, the affidavits of two independent

witnesses namely Fahad Ahmed S/o Iftikhar Ahmed Siddiqui and Mst.
Mehreen Zahra Saeed W/o Saeed Ahmed Khan are filed, who have
stated that there is no other legal heir of deceased except the
applicant.

Heard learned counsel and perused the material available

on record.

The applicant has prayed for succession certificate in his

favour being only surviving legal heir of deceased, to receive the
amount from the bank as shown in the schedule annexed with
application. The notice was published in daily newspaper “UMMAT”
Hyderabad dated 08.02.2019, however, nobody has come forward to
object to the prayer made by the applicant. In addition to this, report
was called from Mukhtiarkar concerned who vide his letter dated
14.02.2019 reported that deceased died leaving behind the applicant
as his legal heir. This is
 -2-

what which is reported by SHO Police Station A-Section Latifabad

Hyderabad vide letter dated 21.03.2019 and the Deputy Director
NADRA Hyderabad Zone in his report dated 21.03.2019. The applicant
has also obtained a declaratory decree in F.C.Suit No.182/2019 vide
judgment dated 21.02.2019 from the Court of learned VIth Senior Civil
Judge, Hyderabad regarding his being only surviving legal heir of
deceased. In addition to this, the Manager, National Bank of Pakistan,
Latifabad No.8 Branch, Hyderabad in his report dated 21.02.2019
stated that the deceased was having Current Account No.4011586088.
He has also shown in his report the principle amount with mark-up as
Rs.461,613.75/- as on 18.02.2019.

Record shows that there is no impediment nor any will has

been found. Therefore, for the aforesaid reasons, the application is
allowed in favour of applicant with directions to withdraw amount of
Rs.461,613.75/- from National Bank of Pakistan, Latifabad No.8 Branch,
Hyderabad lying in Account No.4011586088 subject to furnishing P.R.
Bond of the applicant in equivalent amount shown in the balance of the
deceased within 30 days with the office of this Court. The Succession
Application stands disposed of accordingly.

Pronounced in open Court.

Given under my hand and the seal of this Court on this 25 th day
of March, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE, HYDERABAD
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0DF8D1ED90B3443810621343C2BD31C2

IN THE COURT OF VITH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.

Sessions Case No.75 of 2019

The State

Versus

1. Kanji S/o Hemon Kolhi (in custody)

2. Ghulam Ali S/o Imam Bux Brohi (absconder)…………………Accused.
Crime No.212/2018
P.S. Husri, Hyderabad
U/s 324, 353, 34 PPC

Mr. Nasir Durrani, learned DDPP for the State

Mr. Muhib Ali Laghari, learned counsel for accused

J U D G E M E N T
27-03-2019
The above named accused have been sent up to stand
their trial in the above case and crime by Police Station Husri
Hyderabad for the offence punishable U/s 324, 353, 34 PPC, vide
challan admitted on 12.12.2018.
2. Facts, in brief, are that on 24.11.2018 at 2245 hours ASI
Mushtaque Sikandar Rind, registered FIR of present case alleging that
on the same day he alongwith his staff PC Muhammad Suleman, PC
Rehan Shabbir, PC Masood Ali Khoso and DHC Ghulam Ali Siyal left
Police Station for patrol of the area in Government Mobile No.SPC-104
vide entry No.19 at about 2030 hours. After patrol of different places
they arrived at Almani Chowk and started snap checking of the
vehicles. During checking, at about 2145 hours complainant party
noticed two persons riding on motorcycle having one plastic sack in
the middle coming, who were signaled to stop but they throwing
plastic sack and motorcycle opened straight firing upon police party
with intention to commit their murder and police party also getting
position made firing in defence. The encounter lasted for about 4/5
minutes and thereafter firing was stopped by the accused.
Complainant party saw upon headlight and torch light that one person
was lying on soil having pistol in his right hand and blood was oozing
from right side knee of his leg. The pistol was taken into police
custody, which was unloaded and found with empty magazine. On
inquiry, captive disclosed his name as Kanji S/o Hemo Kolhi and the
name of his companion as Ghulam Ali Brohi. On further inquiry, captive
disclosed the recovery of pistol as unlicensed and as to plastic sack
containing transformer coils, he disclosed that the same was stolen
from the jurisdiction of Police Station SERI and they were coming to sell
out the same at Hyderabad and it transpired that the same property
was
 -2-

required Crime No.208/2018 registered U/S. 381-A, 392, 34 PPC of that

Police Station. Upon personal search, complainant further recovered
three Pak currency notes of Rs.100/- denomination and one mobile
phone VGO-TEL. Complainant also made recovery of 06 empty shells of
30-Bore and 05 empty shells of SMG. Thereafter PC Suleman and PC
Masood were appointed as mashirs, property was sealed at spot
separately and complainant prepared such memo of arrest and
recovery and then brought the accused and property at Police Station
and after sending the accused with letter to Civil Hospital for treatment
complainant lodged present FIR and so also another FIR U/S. 23-A
Sindh Arms Act against the accused.
3. As result of investigation, the investigation officer
submitted challan against both the accused before the area
Magistrate, who accepted the challan and sent up the case to the
Court of Honourable Sessions Judge, Hyderabad, on jurisdictional
ground and wherefrom the R & Ps received by this Court for its
disposal according to law.
4. In compliance of Section 265-C Cr.P.C. necessary case
papers were supplied to the accused vide Ex.3. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.4, to which they
did not plead guilty and claimed to be tried vide his plea was recorded
at Ex.4/A.
5. Prosecution examined complainant as PW-1 at Ex.5, he
produced departure and arrival entry, memo of arrest and recovery
and FIR at Ex.5/A to 5/C respectively, mashir of the incident as PW-2 at
Ex.6 and Investigation Officer SIP Atta Muhammad Kaka as PW-3 at
Ex.7, he produced entry No.25, entry No.27, entry No.11, memo of
place of incident, entry No.12, letter for FSL, FSL report, entry No.63
and medical record at Ex.7/A to 7/I respectively. Thereafter learned
DDPP for the State closed the side in evidence vide his statement at
Ex.8.
6. Statement U/s 342 Cr.P.C. of accused was recorded at
Ex.9, who denied all the allegations leveled against him by the
prosecution and claimed to be innocent, however, he did not opt to
examine himself on oath or produce witnesses in defence.
7. Learned D.D.P.P. for the State argued that prosecution
witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
8. Learned counsel for the accused, on the other hand,
argued that prosecution case is highly doubtful contending further that
there is no cogent evidence with the prosecution and that P.Ws
examined have contradicted to each other on material facts. He further
argued that the accused is innocent as

-3-

he was arrested from Jhudo City and then involved in this case after
making him half fry, therefore, they may be acquitted from the charge.
9. I have heard learned D.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-

(i) Whether on 24.11.2018 at 2145 hours at Almani Chowk

Road near Tando Fazal, Hyderabad accused alongwith
absconding accused in furtherance of their common
intention to commit their murder, fired upon complainant
party with intention to commit their murder and did an act
with such intention and under such circumstances that if
by the said act they had committed Qatl of complainant
party they would have been guilty of Qatl-e-Amd and also
prevented them from discharging their lawful duties?

(ii) What offence if any, has been committed by the accused?

My findings on the above points with reasons thereto are

as under:-
FINDINGS

POINT NO.I Doubtful.

POINT NO.II Accused Kanji is acquitted U/s 265-H(i) Cr.P.C.

REASONS
POINT NO.I

10. To prove this point, the prosecution examined 03

witnesses out of which, PW-1 and PW-2 are examined as star witnesses
of the entire episode. A minute look at the examinations-in-chief of
these two star witnesses transpires that they have made contradictory
statements to each other. According to PW-1 when they were available
at Almani Chowk they saw two persons riding on the motorcycle
coming carrying a plastic sack from Husri side whereas PW-2 to this
aspect of the matter spoken otherwise that they were coming from
Sehri side towards Hyderabad. PW-1 is silent as to getting position by
the accused and so also by them before firing started whereas PW-2
deposed that the accused got positions behind the banks of the road
and they too got the positions. It is matter of record that PW-1 claimed
in his chief that he prepared the mashirnama of arrest and recovery at
the spot, however, he in his cross as to this aspect of the matter made
a volunteer statement that “since there was dark, I prepared rough
copy of memo of arrest and recovery at spot while the copy produced
before this Court was prepared and signed at Police Station. It is fact
that I have not produced the rough copy prepared on the
-4-

spot”. Yet, PW-2 in his chief remained entirely silent as to whether the
memo of arrest either copy produced before this Court or the rough
copy thereof was prepared over there or not. They also in their
respective cross examinations made serious contradictory statements
altogether difference to each other. According to PW-1, they after
leaving Police Station patrolled firstly Tando Alam Mari, then Tando
Fazal and thereafter arrived at Almani Chowk, the place of occurence
whereas PW-2 contradicting this statement of PW-1, deposed otherwise
that after leaving Police Station they directly came at Almani Chowk
and after about 05 minutes’ time the accused arrived there and that
they did not patrol any other place before or after the incident. It is
very surprising to be noted that though a cell phone which is shown in
the challan sheet as case property was allegedly recovered from
accused but both these PWs remained silent as to whether it was also
recovered from the accused. Furthermore, PW-2 deposed that
complainant also effected recovery of three Pak currency notes of
rupees 100 denomination but neither such amount is shown in the
challan sheet as part of case property nor those notes are produced
before this Court nor such fact is deposed by PW-1. Further, PW-1
remained silent as to whether he recovered the empty shells from the
place of occurrence whereas PW-2 deposed that six empty shells of 30-
Bore T.T. pistol were recovered from the pocket of the accused and
five empty shells of SMG were recovered by the complainant from the
place. Availability of six empty shells of 30-Bore pistol in the pocket of
the accused is very much surprising and creates serious doubt which is
even otherwise accumulated from the above discussion. As regards the
evidence of PW-3, the Investigation Officer, his statement is formal and
needs no discussion, however, he admitted that he sent the property
to the expert for opinion after delay of three days and the same was
not explained by him. It is settled principle of law that even if a single
contradictory statement is found in the prosecution case the benefit
whereof could got to accused always, this case in hand is full of flaws
and material irregularities. Reliance in this regard is respectfully placed
upon the case reported as 2009 SCMR 230. In view of above discussion
I am of the humble view that prosecution has failed to prove its case
against the accused beyond any reasonable shadow of doubt.
Accordingly, the point under discussion is answered as doubtful and
not proved.
POINT NO.II

11. In view of the aforementioned appraisal of evidence, I am

of the humble view that the prosecution has miserably failed to bring
home the charge against the accused beyond any shadow of
reasonable doubt, hence, accused Kanji S/o Hemon Kolhi is given
benefit of doubt and stands acquitted of the charge U/s 265-H(i) Cr.P.C.
He is produced in custody, is remanded back
 -5-

to custody with directions to Jail Superintendent to release him

forthwith, if he is not required in any other custody case/crime. As
regards the case against absconding co-accused namely Ghulam Ali
S/o Imam Bux Brohi, keeping the case against him on dormant record
till his arrest would be without any result as nothing has come on
record against this accused more particular his identification. None
from the prosecution witnesses in their respective statements recorded
by this Court, claimed that they themselves identified the absconding
accused or he was known to them previously. Only the statement
made by present accused which too before police that his companion
was Ghulam Ali, is not sufficient in absence of his like statement which
could have been recorded before magistrate, therefore, having such
position, the absconding accused Ghulam Ali S/o Imam Bux Brohi is
also acquitted under the same provision of law. Copy of this judgment
be sent to concerned Police Station for information and record.
Pronounced in open Court this 27th of March 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.

CASE PROPERTY ORDER U/S 517 CR.P.C

The case property as shown in the charge sheet viz. one

30-Bore T.T. pistol without number six empties of 30-Bore and five
empty shells of SMG be deposited in District Armoury for its disposal
according to law whereas one red colour Jinan motorcycle, Engine
No.SS-84760, Chassis No.SS-85008 and one VGOTEL Mobile Phone be
returned to its original owner after proper verification and
identification. As regards the part of case property viz. two coils of
transformer that is property of Crime No.208/2018, U/S. 381-A, 392, 34
PPC of Police Station Husri, Hyderabad, the same may be disposed of
after disposal of that case according to law.
Dated this 27th of March, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
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3A0D62FF8290EE5658835772B84AEF23
IN THE COURT OF VITH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.
Sessions Case No.711 of 2018
The State
Versus
Kanji S/o Hemon Kolhi……………………….…….……………..…………………………Accused.

Crime No.213/2018
P.S Husri, Hyderabad
U/s 23-A Sindh Arms Act

Mr. Nasir Durrani, learned DDPP for the State

Mr. Muhib Ali Laghari, learned counsel for accused

J U D G E M E N T
27-03-2019

The above named accused has been sent up to stand his

trial in the above case and crime by Police Station Husri Hyderabad for
the offence punishable U/s 23-A Sindh Arms Act, vide challan admitted
on 12.12.2018.
2. Facts of the present case in nutshell are that complainant
ASI Mushtaque Sikandar, registered the present FIR on 24.11.2018 at
2300 hours alleging therein that already arrested accused namely
Kanji S/o Hemon Kolhi in Crime No.212/2018, U/S. 324, 353, 34 PPC
was found possessing an unlicensed 30-Bore pistol alongwith empty
magazine, hence, present FIR was registered.
3. As result of investigation, the investigation officer
submitted challan against both the accused before the area
Magistrate, who accepted the challan and sent up the case to the
Court of Honourable Sessions Judge, Hyderabad, on jurisdictional
ground and wherefrom the R & Ps received by this Court for its
disposal according to law.
4. In compliance of Section 265-C Cr.P.C. necessary case
papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.2, to which they
did not plead guilty and claimed to be tried vide his plea was recorded
at Ex.2/A.
5. Prosecution examined complainant as PW-1 at Ex.3, he
produced departure and arrival entry, memo of arrest and recovery
and FIR at Ex.3/A to 3/C respectively, mashir of the incident as PW-2 at
Ex.4 and Investigation Officer SIP Atta Muhammad Kaka as PW-3 at
Ex.5, he produced entry No.25, entry No.27, entry No.11, memo of
place of incident, entry No.12, letter for FSL, FSL report and entry
No.63 at Ex.5/A to Ex.5/H respectively. Thereafter learned DDPP for the
State closed the side in evidence vide his statement at Ex.6.
 -2-
6. Statement U/s 342 Cr.P.C. of accused was recorded at
Ex.7, who denied all the allegations leveled against him by the
prosecution and claimed to be innocent, however, he did not opt to
examine himself on oath or produce witnesses in defence.
7. Learned D.D.P.P. for the State argued that prosecution
witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
8. Learned counsel for the accused, on the other hand,
argued that prosecution case is highly doubtful contending further that
there is no cogent evidence with the prosecution and that P.Ws
examined have contradicted to each other on material facts. He further
argued that the accused are innocent, he was arrested from Jhudo City,
then he was made half fry then involved in this false case, therefore,
they may be acquitted from the charge.
9. I have heard learned D.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-
(i) Whether on 24.11.2018 at 0945 hours at Almani Chowk
Road, Tando Fazal, Hyderabad, accused was arrested in
Crime No.212/2018, U/S. 324, 353, 34 PPC after an
encounter in injured condition and was found possessing
an unlicensed 30-Bore pistol alongwith empty magazine?

(ii) What offence if any, has been committed by the accused?.

My findings on points (I) and (II) are as under:-
FINDINGS

POINT NO.I Doubtful.

POINT NO.II Accused is acquitted U/s 265-H(i) Cr.P.C.

REASONS
POINT NO.I

10. To prove this point, the prosecution examined 03

witnesses out of which, PW-1 and PW-2 are examined as star witnesses
of the entire episode. A minute look at the examinations-in-chief of
these two star witnesses transpires that they have made contradictory
statements to each other. According to PW-1 when they were available
at Almani Chowk they saw two persons riding on the motorcycle
coming carrying a plastic sack from Husri side whereas PW-2 to this
aspect of the matter spoken otherwise that they were coming from
Sehri side towards Hyderabad. PW-1 is silent as to getting position by
the accused and so also by them before firing started whereas PW-2
deposed that the accused got positions behind the banks of the road
and they too got the
-3-

positions. It is matter of record that PW-1 claimed in his chief that he

prepared the mashirnama of arrest and recovery at the spot, however,
he in his cross as to this aspect of the matter made a volunteer
statement that “since there was dark, I prepared rough copy of memo
of arrest and recovery at spot while the copy produced before this
Court was prepared and signed at Police Station. It is fact that I have
not produced the rough copy prepared on the spot”. Yet, PW-2 in his
chief remained entirely silent as to whether the memo of arrest either
copy produced before this Court or the rough copy thereof was
prepared over there or not. According to PW-1, they after leaving
Police Station patrolled firstly Tando Alam Mari, then Tando Fazal and
thereafter arrived at Almani Chowk, the place of occurence whereas
PW-2 contradicting this statement of PW-1, deposed otherwise that
after leaving Police Station they directly came at Almani Chowk and
after about 05 minutes’ time the accused arrived there and that they
did not patrol any other place before or after the incident. It is very
surprising to be noted that though a cell phone which is shown in the
challan sheet as case property was allegedly recovered from accused
but both these PWs remained silent as to whether it was also
recovered from the accused. Furthermore, PW-2 deposed that
complainant also effected recovery of three Pak currency notes of
rupees 100 denomination but neither such amount is shown in the
challan sheet as part of case property nor those notes are produced
before this Court nor such fact is deposed by PW-1. Further, PW-1
remained silent as to whether he recovered the empty shells from the
place of occurrence whereas PW-2 deposed that six empty shells of 30-
Bore T.T. pistol were recovered from the pocket of the accused and
five empty shells of SMG were recovered by the complainant from the
place. Availability of six empty shells of 30-Bore pistol in the pocket of
the accused is very much surprising and creates serious doubt which is
even otherwise accumulated from the above discussion. As regards the
evidence of PW-3, the Investigation Officer, his statement is formal and
needs no discussion, however, he admitted that he sent the property
to the expert for opinion after delay of three days and the same was
not explained by him. It is settled principle of law that even if a single
contradictory statement is found in the prosecution case the benefit
whereof could got to accused always, this case in hand is full of flaws
and material irregularities. Reliance in this regard is respectfully placed
upon the case reported as 2009 SCMR 230. In view of above discussion
I am of the humble view that prosecution has failed to prove its case
against the accused beyond any reasonable shadow of doubt.
Accordingly, the point under discussion is answered as doubtful and
not proved.
 -4-

POINT NO.II
11. In view of the aforementioned appraisal of evidence, I am
of the humble view that the prosecution has miserably failed to bring
home the charge against the accused beyond any shadow of
reasonable doubt, hence, accused Kanji S/o Hekon Kolhi is given
benefit of doubt and stands acquitted of the charge U/s 265-H(i) Cr.P.C.
He is produced in custody, is remanded back to custody with directions
to Jail Superintendent to release him forthwith, if he is not required in
any other custody case/crime.
Pronounced in open Court this 27th of March 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.

CASE PROPERTY ORDER U/S 517 CR.P.C

The case property as shown in the charge sheet viz. one

30-Bore T.T. pistol without number, six empties of 30-Bore and five
empty shells of SMG be deposited in District Armoury for its disposal
according to law whereas one red colour Jinan motorcycle, Engine
No.SS-84760, Chassis No.SS-85008 and one VGOTEL Mobile Phone be
returned to its original owner after proper verification and identification
after expiry of appeal period. As regards the part of case property viz.
two coils of transformer that is property of Crime No.208/2018, U/S.
381-A, 392, 34 PPC of Police Station Husri, Hyderabad, the same may
be disposed of after disposal of that case according to law.
Dated this 27th of March, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
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50F6C9CBC399B3D1E995A53D8611259E

IN THE COURT OF VITH ADDITIONAL SESSIONS JUDGE, HYDERABAD

Sessions Case No.232 OF 2019

The State-----------------------------------------Vs.-------------------------------Lateef & others.

-x-x-x-x-
Dost Ali @ Ashraf S/o Abdul Hakeem……………………………..………....Applicant/Accused

Crime No.05/2002
PS: Lundo
U/S: 17(3) H.O, 364, 324, 147, 148, 149
PPC
Mr. Shabbir Hussain Umrani, Advocate for applicant/accused.
Mr. Nasir Durrani, D.D.P.P for the State.

ORDER ON APPLICATION U/S 265-K Cr.P.C.

ORDER
29.03.2019
This order shall dispose of an application filed U/S 265-K Cr.P.C by
applicant/accused Dost Ali alias Ashraf praying for his acquittal on the grounds that
co-accused have already been acquitted and charge against him has become
groundless, hence he may be acquitted.
2. Very charge against the accused is that on 14.03.2002 at 1400 hours
at the Otaq of complainant situated in Village Muhammad Sadique Rind, Deh Dibhro
Taluka Shahdadpur accused alongwith acquitted accused Latif, Ameer Ali alias Jaro,
Sahib, Muhammad, Akbar alias Jamal Khan, Manik and Agoo alias Sardar Ahmed and
absconding accused Sajjan, Sadoro, Imam Bux, Peerano and Jalal being armed with
deadly weapons in furtherance of their common intention made straight firing upon
complainant party with intention to kill them and so also caused butt blows to
Muhammad Siddique and Sikandar Ali and kidnapped complainant party and
robbed one Rifle 7 M.M alongwith license, one DBBL Gun alongwith license, 35
bullets of 7 M.M Rifle, 16 Cartridges of 12-Bore, one Rado Watch and cash amount of
Rs.17,400/- from complainant party.
3. Record shows that co-accused Latif, Ameer Ali alias Jaro, Sahib,
Muhammad, Akbar alias Jamal Khan, Manik and Agoo alias Sardar Ahmed are
already acquitted by the Court of learned Additional Sessions Judge, Shahdadpur
vide judgment dated 23.05.2006 keeping the case against present applicant/accused
on dormant file. Since the accused was arrested in another case and he was confined
in Central Prison, Hyderabad, therefore, he sent an application for reopening his
case, hence, production order was issued by Additional Sessions Judge, Shahdadpur
but the Superintendent Central Prison, Hyderabad could not produce the accused by
intimating the Court that accused has already been notified to be tried inside the Jail.
 -2-
Subsequently Honourable High Court of Sindh, upon reference made by learned
Additional Sessions Judge, Shahdadpur, transferred the above case vide letter
No.1019 / MIT-II/DJ-Sanghar/2019 dated 13.03.2019 from the Court of learned
Additional Sessions Judge, Shahdadpur to Honourable Sessions Court, Hyderabad
wherefrom the R & Ps received by this Court by way of transfer on 20.03.2019.
Today the case was fixed at Camp Court inside the Central Prison, Hyderabad for
supplying the copies and the same were too supplied to him at Ex.39 when his
learned counsel also appeared and filed above application and the notice whereof
was received by learned DDPP for State.
4. The applicant/accused in his application has stated that the case
against him is false and fabricated; co-accused are already acquitted after facing full-
fledged trial, role assigned to applicant/accused is same to that of the role assigned
to co-accused already acquitted, therefore, if the case is proceeded, the ultimate
result will be acquittal as there is probability of conviction of the applicant/accused
and proceedings further shall be futile exercise, the charge against
applicant/accused has become groundless, therefore, he be acquitted.
5. Conversely, learned DDPP for the State formally opposed the instant
application arguing further that if the prosecution witnesses are called, they would
depose their statements earlier recorded.
7. The complainant in his evidence recorded at Ex.21 deposed that he
does not remember the exact date, month and year of incident, which taken place
about 4/5 years back when 15/16 persons with muffled faces came in the jeep and
four motorcycles, entered into his Otaq, beaten him with lathies and weapons and
they taken them and left outside their Otaq and that he reported the matter against
unknown persons. He was declared hostile by the State and though subjected to the
cross but did not support the version of FIR. PW-2 Sikandar Ali also given the same
version deposing further that the present incident taken place about 3/4 years back
when about 12/13 persons came with muffled faces who taken them and left them
about 02 miles away from the Otaq and that his 161 Cr.P.C. statement was not
recorded by the I.O. PW-3 Ghulam Abbas in his evidence supported the evidence of
PW-2 deposing further that 10/12 persons with muffled faces came. PW-4 is
Investigation Officer who supported the role assigned to him deposing that he
inspected the place of occurrence, prepared such memo in presence of mashirs and
so also effected recovery from the arrested co-accused but the mashirs in whose
presence he did such job, did not support the like version of the Investigation
Officer. Very surprising to be noted that PW Muhammad Yusuf whose evidence is
recorded at Ex.27 as witness of occurrence claimed that the present incident taken
place about one year back when in the morning three persons with muffled faces
duly armed with weapons came at the house of complainant. The prosecution also
 -3-

examined Dr. Muhammad Bachal at Ex.28, according to whom the injured Ghulam
Abbas was examined by him, who was having different kinds of injuries on his
person and he also given him treatment but injured Ghulam Abbas, examined at
Ex.23 did not speak a single word as to whether he was brought to Hospital and
given treatment and that any kind of injury was sustained by him. Thus, proceedings
further shall be wastage of precious time of this Court and even if the case is
proceeded and decided on merits after recording evidence, the ultimate result
would be acquittal and nothing more than that as the charge against the applicant/
accused has become groundless. Accordingly, this application is allowed thereby
applicant/accused Dost Ali alias Ashraf S/o Abdul Hakeem is acquitted U/S 265-k
Cr.P.C. The applicant/accused is produced in custody, he is remanded back to
custody with directions to release him forthwith, he if is not required in any other
custody case/crime.
Announced in open Court.
Given under my hand and the seal of the Court this 29thday of March, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL: SESSIONS JUDGE, HYDERABAD
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EAF14297CB2591A2F795B69B1FC3C0F9
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
Succession Application No.88 of 2019
Muhammad Awais Khan S/o Muhammad Aslam
Adult, Muslim, Afridi Pathan by caste, resident of
Flat No.3, Al-Hamra Cottages, Unit No.9 Latifabad
Hyderabad………………………………………………………...
………………….Applicant

Versus

1. Seema Aslam Wd/o Muhammad Aslam

2. Muhammad Ayoub Khan S/o Muhammad Aslam
3. Abeer Aslam D/o Muhammad Aslam
4. Anees Alishba S/o Muhammad Aslam
All muslim, r/o Flat No.3, Al-Hamra Cottages
Unit No.9, Latifabad Hyderabad Nos.1 to 3
adult, while No.4 is minor through her
next-friend and mother Seema Aalam
5. Sarwat Waqas D/o Muhammad Aslam
W/o Syed Waqas Hussain, adult, muslim
r/o A/78 Mir Hassanabad Housing Scheme
Hyderabad
6. General Public……………..…………………………………………………Opponents.
Mr. Abdul Ahad Sahito, advocate for the applicant

ORDER
29.03.2019
This order shall dispose of present succession application
filed U/s 373 of Succession Act, 1925 by the applicant in which it is
stated that deceased Muhammad Aslam S/o Abdul Faheem Khan,
father of applicant, opponents Nos.2 to 5 and husband of opponent
No.1 died on 13.02.2019 leaving behind him, applicant and opponent
No.1 to 5 as his surviving legal heirs. The deceased during his lifetime
was maintaining an Account bearing No.10910981008215014, in Bank
Al-Habib, Unit No.7 Branch, Latifabad, Hyderabad, such schedule is
annexed with the application. The applicant approached the concerned
bank for providing bank statement and issuance of certificate of shown
account but to no avail.

In support of the case, the affidavits of two independent

witnesses namely Syed Ali Ahsan S/o Syed Touseef Hussain and
Muhammad Arif Rajput S/o Muhammad Siddique are filed, who have
stated that there is no other legal heir of deceased except the
applicant and opponent Nos.1 to 5. Apart from this, affidavits of
opponent Nos.1 to 3 and 5 are also filed extending no objection in
favour of applicant, however, opponent No.4 is shown minor aged
about 15 years.
 Heard learned counsel and perused the material available
on record.
 -2-

The applicant has prayed for succession certificate in

favour of applicant and opponents Nos.1 to 5 to receive the amount
from the above bank as shown in the schedule annexed with
application. The notice was published in daily newspaper “UMMAT”
Hyderabad dated 20.03.2019, however, nobody has come forward to
object to the prayer made by the applicant. In addition to this, report
was called from Mukhtiarkar concerned who vide his letter dated
22.03.2019 reported that deceased died leaving behind the applicant
and opponent No.1 to 5 as his legal heirs. This is what which is
reported by SHO Police Station B-Section Latifabad vide letter dated
25.03.2019 and the Deputy Director NADRA Hyderabad Zone in his
report dated 11.03.2019. In addition to this, the Manager Bank Al-
Habib Limited, Latifabad Unit No.7 Branch Hyderabad in his report
dated 22.03.2019 stated that the deceased was having Account
No.10910981008215014. He has also shown in his report the principle
amount with mark-up as Rs.9,128,178.07/- as on 21.03.2019.

Record shows that there is no impediment nor any will has

been found. Therefore, for the aforesaid reasons, the application is
allowed. The Accountant District and Sessions Court, Hyderabad is
appointed as Commissioner with directions to withdraw amount of
Rs.9,128,178.07/- from Bank Al-Habib Limited, Latifabad Unit No.7
Branch Hyderabad lying in Account No. 10910981008215014 and
disburse the same to the heirs of deceased Muhammad Aslam i.e.
applicant and opponents Nos.1 to 3 and 5 as per their respective
shares according to Muhammadan Law subject to furnishing P.R. Bond
of the applicant in equivalent amount shown in the balance of the
deceased and such report be submitted before this court within 30
days. However, opponent No.4 is minor, therefore, her share be
deposited in a profitable Government scheme, which shall be
withdrawn by her on attaining the age of majority after proper
verification and identification. The Succession Application stands
disposed of accordingly.

Pronounced in open Court.

Given under my hand and the seal of this Court on this 29 th day
of March, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE, HYDERABAD
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4A1E81E3B7A5428AB0C3EA6C4C6829C5
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
Succession Application No.96 of 2019
Muhammad Amir S/o Umar Din
Adult, Muslim, R/o House No.209-A
Gali No.1 Muhallah Sarfaraz Colony, Hyderabad……...………………….Applicant

Versus

1. Mst. Bibi Amina Khatoon W/o Umar Din

2. Mst. Nadra D/o Umer Din
3. Muhammad Asif S/o Umar Din
4. Muhammad Kashif S/o Umar Din
5. Adnan S/o Umar Din
6. Ambreen D/o Umar Din
7. Waqar Arain S/o Umar Din
8. Babar Ali S/o Umar Din
9. Mohsin Arain S/o Umar Din
10. Manoor D/o Umar Din
11. Saba D/o Umar Din
12. General Public at Large………………………………………………Opponents.
Mr. Sohail Ahmed Baloch, advocate for the applicant

ORDER
29.03.2019
This order shall dispose of present succession application
filed U/s 373 of Succession Act, 1925 by the applicant in which it is
stated that deceased Umar Din S/o Allah Bux, father of applicant,
opponents Nos.2 to 11 and husband of opponent No.1 died on
13.02.2019 leaving behind him, applicant and opponent No.1 to 11 as
his surviving legal heirs. The deceased during his lifetime was
maintaining two Saving Accounts bearing No.0178382951000636 and
Account No.0144401010001719 in MCB Bank Limited, Fruit Market
Branch, Hyderabad, such schedule is annexed with the application. The
applicant approached the concerned bank for providing bank
statements and issuance of certificates of shown accounts but to no
avail.

In support of the case, the affidavits of two independent

witnesses namely Muhammad Shakir S/o Muhammad Aslam and
Muhammad Zahid S/o Moinuddin are filed, who have stated that there
is no other legal heir of deceased except the applicant and opponent
Nos.1 to 11. Apart from this, affidavits of opponent Nos.1 to 11 are also
filed extending no objection in favour of applicant.

Heard learned counsel and perused the material available

on record.
 -2-

The applicant has prayed for succession certificate in

favour of applicant and opponents Nos.1 to 11 to receive the amount
from the above bank as shown in the schedule annexed with
application. The notice was published in daily newspaper “QAUMI”
Hyderabad dated 11.03.2019, however, nobody has come forward to
object to the prayer made by the applicant. In addition to this, report
was called from Mukhtiarkar concerned who vide his letter dated
14.03.2019 reported that deceased died leaving behind the applicant
and opponent No.1 to 11 as his legal heirs. This is what which is
reported by SHO Police Station City, Hyderabad vide letter dated
28.03.2019 whereas Deputy Director NADRA Hyderabad Zone in his
report dated 21.03.2019 has not shown opponents Nos.5 and 11 as
family inmates of deceased. In addition to this, the Manager MCB Bank
Limited, Fruit Market Branch, Hyderabad in his report dated
18.03.2019 stated that the deceased was having two Accounts bearing
Nos.0178382951000636 with amount of Rs.30,35,289.19 and
0144401010001719 with amount of Rs.35,43,412.02 as on 18.03.2019.

Record shows that there is no impediment nor any will has

been found. Therefore, for the aforesaid reasons, the application is
allowed. The Accountant District and Sessions Court, Hyderabad is
appointed as Commissioner with directions to withdraw amount of
Rs.30,35,289.19 lying in Account No.0178382951000636 and
Rs.35,43,412.02 lying in Account No.0144401010001719 from MCB
Bank Limited, Fruit Market Branch, Hyderabad and disburse the same
to the heirs of deceased Umar Din i.e. applicant and opponents Nos.1
to 11 as per their respective shares according to Muhammadan Law
subject to furnishing P.R. Bond of the applicant in equivalent amount
shown in the balance of the deceased and such report be submitted
before this court within 30 days. The Succession Application stands
disposed of accordingly.

Pronounced in open Court.

Given under my hand and the seal of this Court on this 29 th day
of March, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE, HYDERABAD
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Document Code: 01F13B965897635A09040EEFAA6BE026

IN THE COURT OF VI-ADDITIONAL DISTRICT JUDGE,

HYDERABAD
Civil Revision Appln. No.01 of 2017
1. Muhammad Hashim S/o Akk
2. Shafi Muhammad S/o Akk
3. Muhammad Bux S/o Akk
4. Malook S/o Akk
5. Yousuf S/o Akk
6. Piyaro S/o Akk
7. Mst. Mithan D/o Akk
All Muslims, adults, by caste Shoro
R/o Village Kiran Khan Shoro
Taluka Qasimabad, District Hyderabad
8. Lalo S/o Kedhar
9. Pathan S/o Kedhar
10. Mst. Wadhul D/o Kedhar
11. Mst. Safia Wd/o Kedhar
12. Bachu S/o Din Muhammad S/o Kedhar
13. Abu S/o Din Muhammad S/o Kedhar
All Muslims, Adults, R/o Village Shakir Shoro
District Hyderabad through General Attorney
Muhammad Hashim S/o Akk, Muslim, adult
Resident of Village Kiran Khan Shoro
Taluka Qasimabad, PS Qasimabad District

Hyderabad……………………..Applicants.

VERSUS

1. Mst. Hurmat D/o Bhuro Shoro

W/o Mangi Ladho (junior) died
leaving behind following legal heirs;-
1-a Lakhano S/o Mangi Ladho (Junior)
1-b Mehar S/o Mangi Ladho (Junior)
1-c Allah Dino S/o Mangi Ladho (Junior)
1-d Muharram S/o Mangi Ladho (Junior)
1-e Bhooro S/o Mangi Ladho (Junior)
1-f Mst: Naimat D/o Mangi Ladho (Junior)
1-f Mst: Hajra D/o Mangi Ladho (Junior)
Serial No.1-a Lakhano died leaving behind
following legal heirs;-

1-a-i Mst: Maryam Wd/o Lakhano

1-a-ii Mst: Sughra D/o Lakhano
1-a-iii Mst: Zubaida D/o Lakhano
1-a-iv Mst: Zahida D/o Lakhano
1-a-v Mst: Shahnaz D/o Lakhano
1-a-vi Mst: Farzana D/o Lakhano
1-a-vii Mst: Nazia D/o Lakhano
1-a-viii Muhammad Usman S/o Lakhano
1-a-ix Muhammad Suhail S/o Lakhano
All Muslims, Serial No.1-a-i, 1-a-ii & 1-a-iii
Adults, Serial No.1-a-iv to 1-a-ix minors
Serial No.1-b Mehar died leaving behind
1-b-i. Mangi Ladho S/o Mehar
1-b-ii Ghulam Hussain alias Gullan S/o Mehar
Serial No.1-d Muharram died issueless

2. Mst. Rehmat D/o Bhuro Shoro

died issueless, husband pre-deceased
 All Muslims, Adults, R/o Village Sanwan Shoro
Deh Shah Bukhari, Now R/o Village Kiran Khan Shoro
Taluka Qasimabad, PS Qasimabad District Hyderabad

-2-

3. Mst. Amnat D/o Khan Muhammad Shoro

4. Mst. Sharifan D/o Khan Muhammad Shoro
Both Muslims, Adults, r/o Deh Hatri
Taluka & District Hyderabad
5. Taluka Mukhtiarkar, Hyderabad
6. Government of Sindh to be served through
Senior Member, Board of Revenue
Shahbaz Building, Hyderabad……………………………………….
……..Respondents.
Mr. Muhammad Arshad S. Pathan, Advocate for applicants.
Mr. Waseem-ul-Haq, DDA for official respondents.
None for private respondents.
ORDER
08.04.2019
This order shall dispose of above Civil Revision Application
filed by the applicants against order dated 30.09.2016, passed by Ist.
Senior Civil Judge, Hyderabad whereby application U/S. 12(2) C.P.C.
was dismissed.
2. Facts, in brief, as disclosed in the application U/S. 12(2)
C.P.C. filed by applicants before Honourable High Court of Sindh,
Circuit Court, Hyderabad are that the applicants assailed order dated
19.04.2006 whereby, Revision Application No.45 of 2006 filed against
the judgment and decree dated 16.12.2005 and 18.12.2005 by which
learned Ist. Additional District Judge, Hyderabad upheld the judgment
and decree passed by learned IIIrd Senior Civil Judge, Hyderabad in
F.C.Suit Old No.211 of 2000 (New F.C.Suit No.13 of 2002), was
dismissed.
The Honourable High Court of Sindh, Circuit Court,
Hyderabad considering the fact that the dismissal order passed in the
Revision Application as well as the judgment and decree passed in the
appeal by learned Ist. Additional District Judge, Hyderabad, judgment
and decree passed by learned IIIrd Senior Civil Judge, Hyderabad
passed in F.C.Suit Old No.211 of 2000 (New F.C.Suit No.13 of 2002)
were upheld, therefore, by order dated 21.02.2011 returned the same
to present it before the trial Court for deciding the same in accordance
with law and the applicants following directions of Honourable High
Court of Sindh, Circuit Court, Hyderabad came and filed it before the
Court of learned IIIrd Senior Civil Judge, Hyderabad on 08.03.2007 but
it was dismissed vide impugned order dated 30.09.2016 on th ground
of limitation.
3. Learned counsel for applicants, in his arguments mostly
reiterated the grounds of the application while none has appeared on
behalf of private respondents, though they were lastly served through
publication. The learned DDA for official respondents, at the very
outset, argued that it is the case which may be remanded to the trial
Court with directions to frame issue and record evidence because
appellant asserts that they are one of the legal heirs of deceased. He,
while arguing the point of limitation, contended that it is mixed
question of law and fact which requires evidence.
 -3-

6. I have carefully considered the submissions of learned

counsel for the parties and perused the material available on record.
7. Indeed, no limitation is provided by law for filing
application U/S. 12(2) CPC as in the like cases time of limitation starts
from the date of knowledge. In this case record shows that the
Honourable High Court of Sindh, Circuit Court, Hyderabad, dismissed
the Revision Application on 19.04.2006 while the present application
was filed on 08.03.2007 after 11 months and 11 days, therefore,
Article 181 of the Limitation Act would apply to the case of applicants
which provides 03 years time within which an application can be filed
by the aggrieved person. The next ground of dismissal of the
application is that the applicant presented the application before the
learned trial Court after 12 days delay from the date of returning of his
application by the Honourable High Court, I think there is no wrong
with it nor filing application after period of 12 days would amount any
delay so that the applicants could have supported it with application of
Sections 5 or 14 of the Limitation Act. Thus the present application was
filed within the period of limitation. It is settled principle of law that
Court of law should ordinarily refrain from taking a hypertechnical view
in respect of procedural requirement of law and should not permit
procedural techanalities to become stumbling block in the way of
administration of justice. The Court should liberally exercise its
discretion to remove such hurdles with the object of deciding cases on
merits. So far the facts of the case, at ground No.11 of the application,
it has been stated that in the month of February, 2007, the applicants
when contacted with Tapedar and Mukhtiarkar they came to know
about proceedings initiated by the respondents and the applicants
getting such information, filed present application without delay. If it is
so; it is mixed question of law and fact which requires evidence. At
Paras Nos.3, 4 & 5 of the application, it is alleged that the respondents
in league with official respondents without getting orders from the
Revenue officers got deleted the names of their elders from entry
No.82 Village Form VII-II Deh Hatri Taluka and District Hyderabad.
Further a copy of particular entry is lying on record which, at serial
No.3 to 5, shows the names of persons which were deleted/crossed
and the same deletion is silent as to on whose directions those names
were deleted and further on the backside of this document detail of
transfer of inheritance is written and to see whether this particular
entry is genuine or not and whether those names were deleted with or
without order of any competent authority, the same certainly requires
evidence.
8. In view of the above discussion, I am of the opinion that
the order of learned trial Court dated 30.09.2016 suffers from illegality,
therefore, same is set-aside and consequently instant civil revision
stands allowed, however,
-4-

with no order as to costs, with direction to learned trial Court to decide

the application U/S. 12(2) CPC filed by the applicants after framing
issues and recording evidence. The office to transmit the copy of this
order to learned trial Court for compliance.
Pronounced in open Court.
Given under my hand and the seal of this Court on this 8 th day of
April, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE, HYDERABAD
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IN THE COURT OF VITH ADDITIONAL SESSIONS JUDGE, HYDERABAD

Sessions Case No.1104 OF 2015

The State-----------------------------------------Vs.---------------------Norang Mallah & others

-x-x-x-x-
Lakhmir @ Lakho S/o Ali Nawaz…………………………………..………....Applicant/Accused
Crime No.149/2015
PS: Pinyari, Hyderabad
U/S: 324, 353, 34 PPC
Applicant/accused in person.
Mr. Nasir Durrani, D.D.P.P for the State.

ORDER ON APPLICATION U/S 265-K Cr.P.C.

ORDER
30.03.2019
This order shall dispose of an application filed U/S 265-K Cr.P.C by
applicant/accused Lakhmir @ Lakho praying for his acquittal on the grounds that
co-accused have already been acquitted and charge against him has become
groundless, hence he may be acquitted.
2. Record shows that co-accused Norang Mallah is already acquitted by
this Court U/S. 265-H(i) Cr.P.C. vide judgment dated 24.11.2016 by keeping the case
of present applicant/accused on dormant file. On 27.08.2018 present
applicant/accused was arrested and on submission of supplementary challan by
police, the learned Magistrate sent the same to Honourable Sessions Court and
thereafter it was received by this Court on 22.03.2019 when copies were supplied to
accused. Today the case was fixed for framing of the charge but before this job could
have been done, the applicant/accused filed above application in person and notice
whereof was received by learned DDPP for the State.
3. Applicant / accused mostly reiterated the grounds of his application
contending that he is innocent and that co-accused has already been acquitted and
the alleged role against him is same to that of the role assigned to co-accused.
Therefore, the application may be allowed and he may be acquitted.
4. Learned A.D.P.P for the State argued that dismissing the present
application, matter be proceeded and decided on merits after recording the
evidence of prosecution witnesses. However, he argued that if the witnesses already
examined are brought and examined, they would adopt their earlier statements
recorded by this Court.
5. I have heard the applicant/accused in person, learned D.D.P.P for the
State and further have gone through the material available on record.
6. The very charge against the applicant/accused is that on 19.12.2014
at 1900 hours at main road, Noorani Basti, Hyderabad, he alongwith acquitted
 -2-

co-accused armed with deadly weapons opened straight firing upon complainant
party with intention to commit their murder and further restrained them from
discharging their lawful duties.
7. Admittedly, this Court examined two witnesses in absence of present
applicant/accused and on the basis of such evidence acquitted co-accused Norang
Mallah U/S. 265-H(i) Cr.P.C. vide judgment dated 24.11.2016 keeping the case
against present applicant/accused on dormant record. Learned D.D.P.P for the State
at the very outset, argued that if prosecution witnesses whose evidence has already
been recorded are brought and examined, they would adopt their earlier
statements, therefore, I have no alternate but to visit the evidence of those
witnesses already recorded and the documents produced by them and pass a proper
order. A close look at the evidence of the two star prosecution witnesses recorded in
absence of applicant/accused shows that they have miserably failed to connect the
applicant/accused with the commission of offence. These two prosecution witnesses
are not consistent to each other on material aspects of the matter. It is deposed by
complainant PW-1 SIP Abdul Karim that after leaving the Police Station, they visited
Bakra Mandi, Kali Mori, Phuleli but PW-2 Mumtaz Ali mashir of the incident deposed
otherwise as Kari Mori, Fareed Plaza and the place of incident. It is deposed by
complainant that all the accused at the spot made straight fires on them but
surprisingly mashir of the incident does not know such fact, who deposed that he
could not say as to whether all of the accused fired at them. There is also
contradictory version with regard to consumption time of mashirnama as
complainant deposed that he took about 45 minutes in preparing the mashirnama,
securing the case property and sealing the same on the spot whereas mashir of the
incident deposed that he does not remember as to how much time was consumed
for preparation of memorandum. It is admitted by both the PWs in their evidence
that place of incident is thickly populated area but they did not make any effort to
associate private person to act as mashirs and no explanation was brought on
record in this regard. Admittedly, this is a case of ineffective firing as none from both
sides received bullet injury nor bullet hit to police mobile or surrounding area of
place of incident nor any recovery from place of incident was effected, though an
encounter took place between the parties in open sky. Further, the applicant /
accused is not assigned specific role in the FIR in the commission of the offence.
8. In view of the aforesaid discussion, to my humble opinion charge
against the applicant/accused, in view of above discussion, has not only become
groundless but there appears no probability of the applicant/accused of his being
convicted of any offence. This is what which has been held in the case law reported
as 2000 SCMR 122 (Mairaj Khan Vs Gul Ahmed & others). Accordingly, this
 -3-

application is allowed thereby applicant/accused Lakhmir @ Lakho S/o Ali Nawaz is

acquitted U/S 265-k Cr.P.C. The applicant/accused is present on bail, his bail bond
stands cancelled and surety is discharged.
Announced in open Court.
Given under my hand and the seal of the Court this 30thday of March, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL: SESSIONS JUDGE, HYDERABAD
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2024C24DED83181B66FF9F0A320A548B

IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,

HYDERABAD.
Succession Application No.87 of 2019
Mst. Jameela Khatoon Wd/o Sharfuddin Ansari (Late)
Adult Muslim R/o H.No.196 Sachal Sarmast Colony
Husri, Taluka Latifabad Hyderabad……….
…………………………………..Applicant.
Versus
General Public at large…..………………………………………………………
Opponent.

Mr. Shabbir Hussain, advocate for the applicant

ORDER
30.03.2019
This order shall dispose of present succession application
filed U/s 373 of Succession Act, 1925 by the applicant in which it is
stated that deceased Sharfuddin Ansari S/o Ibrahim Siddique, husband
of applicant died on 08.08.2018 leaving behind him, applicant as his
sole surviving legal heir. The deceased during his lifetime was
maintaining an Account bearing No.PK21NBPA-1064001303736940 in
National Bank of Pakistan, Commercial Area Branch, Unit No.7,
Latifabad Hyderabad and such schedule is annexed with the
application. The applicant approached the concerned bank for
providing bank statement and issuance of certificate of shown account
but to no avail.

In support of the case, the affidavits of two independent

witnesses namely Muhammad Junaid S/o Muhammad Fakhar Alam and
Muhammad Saad Khan S/o Abdul Wahid are filed, who have stated that
there is no other legal heir of deceased except the applicant.

Heard learned counsel and perused the material available

on record.

The applicant has prayed for succession certificate in her

favour being only surviving legal heir of deceased, to receive the
amount from the bank as shown in the schedule annexed with
application. The notice was published in daily newspaper daily
“QAUMI” Karachi dated 25.03.2019, however, nobody has come
forward to object to the prayer made by the applicant. In addition to
this, report was called from Mukhtiarkar concerned who vide his letter
dated 29.03.2019 reported that deceased died leaving behind only the
applicant as his legal heir. This is what which is reported by SHO Police
Station SITE Hyderabad vide letter dated 30.03.2019 and the Deputy
Director NADRA Hyderabad Zone in his report dated 28.03.2019. In
addition to this, the Manager,
 -2-

National Bank of Pakistan Commercial Area Branch, Latifabad,

Hyderabad in his report dated 22.03.2019 stated that the deceased
was having Account No.PK76NBPA106400300376940. He has also
shown in his report the principle amount with mark-up as
Rs.161,118.80/- as on 22.03.2019. On query, regarding account
number of deceased, as application some-what shows different digit of
account number of deceased to that of the one which is reported by
the Bank, learned counsel for applicant submits that due to
typographical mistake/error, account number of deceased was
mentioned as PK21NBPA-1064001303736940 instead of Account
No.PK76NBPA106400300376940. Be that as it may, the Account No.
PK76NBPA106400300376940 is shown by the Bank to had been issued
in the name of deceased.

Record shows that there is no impediment nor any will has

been found. Therefore, for the aforesaid reasons, the application is
allowed in favour of applicant with directions to withdraw amount of
Rs.161,118.80/- from NBP, Commercial Area Branch, Latifabad
Hyderabad lying in Account No. PK76NBPA106400300376940 subject
to furnishing P.R. Bond of the applicant in equivalent amount shown in
the balance of the deceased within 30 days with the office of this
Court. The Succession Application stands disposed of accordingly.

Pronounced in open Court.

Given under my hand and the seal of this Court on this 30 th day
of March, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE, HYDERABAD
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.

Civil Appeal No.176 of 2017

Fida Hussain Jatoi S/o Abdul Wahid Jatoi

Muslim, adult resident of Bihar colony, Kotri
District Jamshoro………….
……………………………………………………………………PLAINTIFF.

Versus

1. Malhar S/o Ahmed

(since deceased) through his
legal representatives:
(i) Abdul Aziz S/o Malhar
(ii) Dildar Ali S/o Malhar
(iii) Mst. Salma D/o Malhar
(iv) Mst. Sodhi D/o Malhar
(v) Mst. Shamim D/o Malhar
(vi) Mst. Gulshan D/o Malhar
(vii) Mst. Rukhsana D/o Malhar

2. Mst Fatima D/o Ahmed W/o Ditoo

3. Mst Rasti D/o Ahmed W/o Umer
4. Siddique S/o not known
5. Khudadin S/o Siddique
6. Mst. Phapoo D/o Siddique
7. Sudheer S/o Allahdino
8. Dileep S/o Allahdino
9. Ahmed S/o Allahdino
10. Mst. Rehmat D/o Allahdino
11. Mst Gulan D/o Allahdino
12. Mst. Pathani D/o Allahdino
13. Mst. Kari D/o Allahdino
14. Mst Sakina D/o Allahdino
All Muslims, adults, resident of Village Bachal Shar
Near Gaja Mori, Deh Noral, Taluka and District Hyderabad

15. Dr. Hadi Bux S/o Nabi Bux Jatoi

Muslim, adult resident of A-18, Unit No.3
Latifabad, Hyderabad

16. Nafeez Khanzada S/o Rafique Khanzada

Muslim, adult resident of House No.377, Block-B,
Unit No.9 Latifabad, Hyderabad ………………..
…...............DEFENDANTS.

Mr. Arbab Ali Hakro, Advocate for appellant.

Mr. Abdul Jabbar Qureshi, Advocate for respondents Nos.1 to 3,5 to 14.
Mr. Parkash Kumar, Advocate for respondent No.15.
Mr. Riaz Ahmed, Advocate for respondent No.16.
Nemo for respondents Nos.4
-2-

J U D G M E N T.
____-04-2019.

This Civil Appeal is directed against the judgment and

decree dated 17.05.2017, passed by learned IVth Senior Civil Judge,
Hyderabad, in F.C.Suit No.227 of 2010, whereby the learned trial Court
dismissed the suit.
2. The appellant/plaintiff Fida Hussain filed above suit for
Specific Performance of Contract and Permanent against
respondents/defendants with following prayers;-
(a) That defendants do perform their part of contract and
execute the sale deed in favour of plaintiff after performing
the legal formalities and receiving the balance amount of
Rs.20,000/- from the plaintiff. In the alternate the Nazir of
this Court may be directed to execute the sale deed;

(b) Permanent injunction be issued restraining the defendants

from alienating the suit land and in any manner from
interfering with the possession of the plaintiff of the suit
land;

(c) Any other relief this Honourable Court deems fit may be
granted;

(d) That costs of the suit be borne by the defendants;

3. It is inter alia stated in the plaint that the suit land viz
agricultural land bearing Survey No.453/A admeasuring 7-01 acres Deh
Narai Tapo Seri Taluka and District Hyderabad was granted to Ahmed
s/o Usman the predecessor-in-title of defendants No.1 to 14, who died
prior to year 1979 left the following legal heirs:-
(a) Mst. Begi Widow
(b) Alahdino Son
(c) Malhar Son (defendant No.1)
(d) Usman Son
(e) Mst Fatima Daughter (defendant No.2)
(f) Mst Rasti Daughter (defendant No.3)
(g) Mst Manan Daughter
It is further stated that the above said son Usman died in the year
1985 without any issue and that above said legal heirs of Ahmed
namely (a) Allahdino, (b) Malhar, (c) Mst. Beggi, (d) Mst Fatima,
(e) Mst. Rasti, (f) Mst. Manan executed registered irrevocable general
power of attorney No.4586 dated 28.12.1986 in favour of defendant
No.15, who agreed to sell the suit land to plaintiff vide sale agreement
dated 20-5-1987 at the rate of Rs.15000/- acre and received
Rs.85,375/- and put the plaintiff in possession of the suit land and that
the remaining amount of Rs.20,000/- was payable at the time of
registration of sale deed. The plaintiff has developed the suit land after
incurring huge cost and has been ready and willing to perform his part
of contract. In the year 2002 defendant No.2 has illegally and
malafidely mortgaged his 24 paisa share in suit
 -3-

land with Zarai Taraqiati Bank Limited. The plaintiff has been
requesting the defendants to get the record of right mutated in their
favour, obtain the sale certificate, redeem the mortgage and execute
the sale deed who had been avoiding on one or the other pretext but
in the first week of April 2010 refused to perform their part of contract
and execute the sale deed in favour of plaintiff.
4. After service of notice, respondents/defendants Nos.1 to 14
in their written statement denied about sale of suit land through
agreement dated 20-5-1987 and that the defendants executed power
of attorney to defendant No.15 but due to some differences same was
cancelled in the year 1989. It is further stated that defendant No.15
due to enmity has prepared forged agreement of sale in collusion with
plaintiff, in the back dates and no alleged sale amount was received by
them. The plaintiff is not in possession of suit land. The suit is
undervalued and not maintainable, hence, is liable to be dismissed.
5. Defendant No.15 in his written statement stated that he as
general attorney of defendants, sold the suit land to plaintiff, received
payment and handed over the possession to plaintiff and if this Court
grant permission, he is ready to execute the sale deed in favour of
plaintiff.
6. The defendant No.16 in written statement stated that suit
is not maintainable, suit is time barred, the suit land has been given to
him by defendants on lease/makata and since he is in possession of
suit land and running a fish farm by investing huge amount on it,
plaintiff is not entitled for any relief.
4. From the pleadings of the parties following issues were
framed by learned trial Court:-
ISSUES
1. Whether the suit is maintainable under the law?
2. Whether the plaintiff is entitled to seek Specific
Performance of Contract in respect of property purchased
by plaintiff is fully described in plaintiff?
3. What should the decree be?

5. On the above issues, both the parties adduced their

respective evidence and closed side in evidence respectively.
6. Learned trial Court after hearing the counsel for the
parties, passed the impugned judgment whereby dismissed the suit of
appellant/ plaintiff.
7. Learned counsel for appellant argued that appellant /
plaintiff filed suit against respondent/defendant Nos.1 to 15 while the
defendant No.16 was joined on application moved. The defendant
No.15 is attorney of remaining
 -4-

defendants, who executed agreement to sale in respect of suit land on

30.05.2007 on the basis of irrevocable power of attorney executed in
his favour by the remaining defendants. Since the vendee did not
perform part of the contract, the suit was filed in which written
statements were filed by the respondent No.1 to 14 and 15
respectively. Matter did not succeed in reconciliation and only three
issues were framed on account of maintainability, the other was in
respect of contract and third one regarding order of the Court. Plaintiff
examined himself and so also attesting witnesses of the agreement to
sell. There was certain issues which were to be framed by trial Court
but it ignored the same because it was pleaded in the plaint that the
plaintiff was lying with the plaintiff and this very contents of the plaint
were denied in the written statement. This particular issue was not
framed. Addition to this other issues which were appearing keeping in
view the contents of the pleadings regarding cancellation of power of
attorney and its revocation by remaining defendants and so also the
execution of the agreement but the same were not framed as is
envisage provided under Order 14 Rule 1 to 3 (5). Therefore, this Court
has powers U/O 41 Rule 21, 22 and 25 CPC to remand the suit with
directions to frame the issues and deliver the judgment. His next
arguments that particularly Para No.7 of the plaint, plaintiff has
claimed that he is in possession and the very content is denied by
defendants Nos.1 to 15 in their written statement Para No.13. If it is so
the same was the issue and it was not framed nor discussed in the
judgment. He argued that the learned trial Court did not appreciate the
material including that of the evidence brought on record. Since there
was no date fixed in the agreement to sell the suit was to be filed from
the date of its refusal, he relied upon the wording of Article 113 of the
Limitation Act, IInd Part. He argued that at Para No.10 of the affidavit
in evidence of plaintiff, he categorically deposed on oath that in first
week of April 2010 the other side refused to perform part of contract,
therefore, period of limitation started from this the very date,
therefore, finding on issue no.1 is illegal and without application of
judicial mind. He argued that no doubt the plaintiff did not examine
stamp vendor but he examined the attesting witnesses of the
agreement and observation in this regard is not tenable in law. The
execution of irrevocable power of attorney is admitted by the
remaining defendants and even if they claimed that it was cancelled
this was particular issue requiring evidence but it was not framed. He
argued that the case in hand is fit case in which either the appeal may
be allowed, suit remanded back with directions to frame the relevant
issues, record evidence and it be decided on merits and this Court may
decree the suit.
7. I have heard learned counsel for the parties and gone
through the material available on record including the case laws relied
upon by learned counsel for respondent.
Now point for determination of the lis, are as under:

POINTS

(i) Whether impugned order dated 21.07.2018 requires

any interference of this Court?.

(ii) What should the judgment be?

My findings on points (I) and (II) are as under:-

FINDINGS
POINT NO.I Affirmative.
POINT NO.II Appeal allowed as under.

REASONS
POINT NO.I

8. Per material available on record, the plaintiff in Para No.2

of the plaint has claimed himself as sole, absolute and legal owner of
shop Nos.3 & 4 constructed upon Plot No.210 Block-D, Unit No.7,
Rafique Square Latifabad Hyderabad having been purchased by him by
way of registered sale deed. This is what which is prayed for by him at
prayer clause-(a) of the plaint and this
 -4-

particular statement made in the plaint and so also relief sought at

prayer clause-(a) is denied by respondent/defendant in his written
statement. If it is so; it is an important issue which requires evidence.
No doubt, in most of the paras of the plaint, the appellant has narrated
the facts regarding the dispute arose in between the appellant and
respondent with regard to monthly rent in respect of suit property and
the rent application filed by appellant/ plaintiff was proceeded and
ultimately dismissed but this particular fact gives sufficient and fresh
cause to the appellant/plaintiff to file suit for Declaration regarding his
legal character and status in respect of the suit property based upon
the registered sale deed which is also questioned by the
respondent/defendant as benami transaction vide F.C.Suit No.46 of
2016 pending before the trial Court. The arguments of the learned
counsel for respondent/defendant that the rent application filed by the
appellant/plaintiff was proceeded and dismissed by trial Court and such
order attained its finality also as the same was not challenged by filing
rent appeal and that appellant cannot agitate such grounds in the suit,
the same arguments are devoid of substance because dismissal of rent
application filed by appellant/plaintiff would not mean that he is
precluded from seeking declaration regarding his status in respect of
suit property. Even otherwise, the Rent Controller while deciding the
rent application has limited scope only to decide the relationship in
between the parties as landlord and tenant and so also other issues
relating to the rent and he while deciding such dispute has no
authority to declare title of any party regarding the property in dispute
and for that purpose it is only the Civil Court to adjudicate upon such
rights of the parties and decide it in accordance with law. His next
argument that the appellant/plaintiff in prayer of the rent application
only sought eviction of the respondent/defendant of shop No.5 and no
prayer was made regarding shops Nos.3 & 4, his like argument is also
of no help to him as in Para No.2 of the rent application, the
appellant/plaintiff had shown himself as owner of shops Nos.3 & 4. Yet,
if the appellant/plaintiff did not make such prayer in the rent
application, again, I would say that this is no ground which may be put
in defence. His further argument that the suit is barred by law of
limitation, it transpires that order in question was passed on
21.07.2018 while the appeal is preferred on 20.08.2018 and thus it is
filed within the time. The case law relied upon by learned counsel for
respondent/defendant reported as 2010 YLR 2759 (Province of Punjab
and others Vs. Muhammad Iqbal & others) is on the point that suit
without seeking declaration would not be maintainable whereas
present is the suit in which not only declaration is sought by the
appellant regarding his ownership in respect of the suit shops but
consequential reliefs are also sought for. The other
 -5-

plasitum viz. (c) of this authority is in respect of delay of 117 days in

filing of revision application while the present appeal is filed within the
time and thus the same is quite different to that of the facts of case in
hand. The other authority (supra) reported as 2007 YLR 2134 (Karachi)
(Dhani Bux Vs. Ali Sher and others) is one which goes in favour of the
appellant in which it has been held that;-
Plasitum-(b)
“Article 120---Suit for declaration of title of disputed land---
Limitation---Such suit cannot be barred by limitation so
long as plaintiff ‘s right is a subsisting right and has not
been extinguished as this gives a right to a continuing
cause of action since every invasion thereof is a fresh
cause”.

It has further been held in the said authority at plasitum-(c)

that;-
“Right to sue accrues when the right in respect of which
the declaration is sought is denied or challenged by the
defendants and time would only start running when such
rights are actually interfered with---In such cases any fresh
cause of action would arise from the date of last attack of
the plaintiff’s right or denial thereof”.

Same is the position in the case in hand as firstly the

appellant/plaintiff filed rent application in which he could not succeed
and since he was claiming his ownership of suit property on the basis
of registered sale deed and the fact that respondent/defendant’s suit
bearing No.46/2016 for declaration of said registered sale deed of
appellant/plaintiff in respect of suit property as benami transaction, is
pending before the trial Court and this is the last attack as to his right
and character to the suit property, thus, he accrued fresh and
continuing cause to sue.
10. In view of above discussion, I am of the humble opinion
that the order passed by learned trial Court requires interference by
this Court. I therefore, answer point No.1 in affirmative.

POINT NO.II
11. In the light of the discussion aforesaid, the impugned order
passed by learned trial Court calls for interference by this Court.
Accordingly, the instant appeal is allowed and impugned order dated
21.07.2018 is set-aside and the matter is remanded back with
directions to learned trial Court to decide the same on merits after
framing issues and recording evidence of both the parties. The parties
to bear their own costs. Let the office to prepare such decree.
Announced in open court,
Given under my hand & seal of this Court, this the 26th day of March, 2019
 (MUHAMMAD FAZIL BOHIO)
VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.

IN THE COURT OF VITH ADDITIONAL DISTRICT

JUDGE, HYDERABAD.
First Rent Appeal No.76 of 2018

Abdul Samad S/o Muhammad Rashid

Muslim, adult, by caste Shaikh
R/o House No.G-2125, Goods Naka
Hyderabad………………………………..………………………...

………………...Appellant/Tenant.

VERSUS

Malik Muhammad Sadique

S/o Malik Ali Bux
through his son and attorney
Muhammad Irfan Malik, Muslim adult
R/o G-2093/12-A Mukhi Bagh
Islamabad

Hyderabad………………………………………………………….Opponent/Landl

ord.

Mr. Aayatullah Khuwaja, learned counsel for appellant.

Mr. Ghulam Murtaza Shaikh, learned counsel for opponent.

J U D G M E N T.
____-04-2019.
This First Rent Appeal is directed against the order dated
14.09.2018, passed by learned VIIth Senior Civil Judge/Rent Controller,
Hyderabad, on application U/S. 16(2) of Sindh Rented Premises
Ordinance, 1979, in Rent Application No.175 of 2016 (re-Malik
Muhammad Saddique Vs. Muhammad Akram & others), whereby the
learned Rent Controller struck off the defense of the opponent and
allowed the rent application.
2. The appeal was transferred to this Court by Honourable
District Judge, Hyderabad, on 11.01.2019 alongwith R&Ps for its
disposal according to law.
3. Succinctly, facts of Rent Application No.175 of 2016 filed
U/s 15 of Sindh Rented Premises Ordinance, 1979, are that
applicant/opponent is owner of Plot No.C/22, SITE Area, Hyderabad,
who in the year 2014 rented out an area admeasuring 60 x 60 of
above plot to Muhammad Rashid being father of opponent No.2 and
that said Muhammad Rashid has been in use and occupation of above
said portion as tenant till 17.09.2016 but he left the said portion by
executing and signing stamp paper on 22.11.2015. It is further pleaded
that on 20.09.2015 opponent No.1 who is brother-in-law of Muhammad
Rashid and maternal uncle of opponent No.2 took the said portion of
plot through rent
 -2-

agreement between applicant and opponent No.1 dated 20.11.2015 for

three months tenancy at the rent of Rs.30,000/- per month then tenant
started the business in the rented premises but on 07.12.2015
Muhammad Rashid expired, hence, opponent Nos.1 & 2 started
running business in the rented premises jointly as tenant, who did not
pay Electricity and Sui Gas Bills regularly and become default in
payment of utility bills and also damaged the Electricity Transformer
installed on plot and so also walls. It is further pleaded that the rented
premises is required for personal bonafide use of applicant and his son
Muhammad Irfan Malik, who is jobless and to do business of Cotton
waste in the rented premises. It is further pleaded that opponents have
also committed default in payment of rent from March 2016 till to date,
hence, applicant requested them to handover possession of rented
premises but they avoided, hence, applicant filed instant rent
application with the following prayers ;-
(a) To direct opponent No.1 and 2 to handover vacant physical
possession of above said portion of plot bearing No.C/22,
SITE Area, Hyderabad which is bounded as under;-
On North Prime Packages Paper
On South Main Road Tando Yousuf
On East Portion of Ex-Tenant Tariq Shah
now is in possession of
applicant
On West Liaquat Daal Mill

(b) Cost of the suit may be awarded.

(c) Any other relief which this Honourable Court deems fit and
proper in the circumstances of above case.

4. After institution of the rent application, notices were issued

to the opponents and in response thereto, they filed written objections
separately wherein denied the allegations of applicant. It is stated by
opponent No.1 in his written statement that he has no concern with the
rented premises nor he was in possession of the same nor any
agreement was executed between him and applicant as rented
premises is in possession of opponent No.2, who is running factory. It is
further stated that father of opponent No.2 was tenant of applicant and
answering opponent just tried to settle the affairs of Rashid and
applicant, hence, he played the role only as mediator and nothing else.
5. Opponent No.2 in his written statement denied the
allegations leveled against him and stated that the area of rented
premises is 60 x 100 and its boundaries are also different but applicant
is trying to change the boundaries to dispossess the opponent from
rented premises. It is further pleaded that father of answering
opponent remained tenant till his death and after his death he is
running factory being his legal heir and that no any affidavit was
signed by the father of answering opponent and that affidavit dated
22.11.2015 is denied. It is further stated that opponent No.1 was not
 -3-

remained in possession of rented premises but he only tried to mediate

the dispute between applicant and answering opponent and in this
regard, he also filed F.C.Suit No.205 of 2016 in the Court of 3 rd Senior
Civil Judge, Hyderabad, which was decreed vide judgment and decree
dated 24.12.2016. It is further stated that applicant has already got the
electricity connection disconnected and there is no electricity in the
rented premises but applicant has become dishonest and is trying to
run the factory by dispossessing the answering opponent and that he
has not committed any default in payment of rent and it is applicant,
who himself granted time to opponent till the year 2019, therefore,
rent application is liable to be dismissed.
6. In order to prove their case, both the parties filed affidavit
in evidence and they were cross examined respectively. Thereafter
counsel for applicant filed application U/S. 16(2) of Sindh Rented
Premises Ordinance, 1979, which after hearing the parties, was
allowed and defense of opponent No.2 was struck off and he was
directed to vacate the premises within sixty days and handover vacant
possession to the applicant.
7. Learned counsel for appellant, in his arguments repeating
the grounds of appeal, further argued that
the appellant was tenant in respect of the rented shop of respondents
and he used to pay monthly rent to one Ali Bux, the previous owner
and thereafter he started paying the same to respondent No.2. He
further argued that the appellant proved that he paid the rent to the
respondents regularly and thereafter through Court and the like
evidence is not appreciated by the trial Court. He further argued that
the appellant accepted that he already made payment of rent upto
date so question of default does not arise and as regards the
personal bonafide need, applicant No.2, attorney Muzaffar admitted
that he has not mentioned the nature of his business in the rent
application nor he has mentioned that he requires the demised shop
for personal use of his son and that he admitted too that applicant
has two more shops situated besides the rented shop. He further
argued that the appellant produced all the rent receipts in his
evidence and discharged the onus of proof successfully. He further
argued that PW Umair admitted that respondent has no experience
for doing business and that since last 07 years, appellant/opponent is
doing business in the rented shop, therefore, appeal may be allowed
and order passed by trial Court be set-aside.
9. On the other hand, learned counsel for respondents
argued that appeal is not maintainable, no ground is shown as to how
the appeal lies or is maintainable, it is the choice of landlord to seek
eviction of the premises, which he wants. He further argued that
respondent No.2, attorney Muzaffar deposed that rent receipt dated
04.09.2015 annexed to written reply, does not bear his signature
meaning thereby it was falsely made available. He further argued
that the rent receipts, which are hand written, are jolly one having
been prepared at one time, place and with same pen for which
opponent admitted that he sent three money orders in 10 days but
after filing of the rent application, which is an admitted default in
payment of rent. He further argued that opponent watching receipts
dated 01.10.2013 and 04.02.2015 deposed that the same might have
different signatures and this is the malafide on the part of opponent
who manufactured the same, therefore, appeal may be dismissed. He
relied upon the case law reported as 2018 SCMR 1441
 -4-

10. I have heard learned counsel for the parties at length and
gone through the relevant record carefully.
Now point for determination of the lis, are as under:

POINTS
(i) Whether impugned order dated 28.02.2018 requires
any interference of this Court.?.

(ii) What should the judgment be?

My findings on points (I) and (II) are as under:-

FINDINGS
POINT NO.I In negative.
POINT NO.II Appeal dismissed.

REASONS
POINT NO.I

11. Per contents of rent application and evidence brought on

record, the eviction of the opponent / tenant was sought on the two
grounds viz. personal bonafide use and the default in payment of rent.
As regards the ground of personal use, the applicant No.2/ landlord,
theattorney of remaining applicants, in his affidavit in evidence
deposed that the rented shop was required for his personal bonafide
use and that the opponent / tenant committed default in payment of
rent and this is what which was deposed by him in his cross. The
opponent/tenant filed his affidavit in evidence also and he in his cross
admitted that he has no knowledge that Muzafar Hussain Qureshi has
no source of income at present and he has seven sons and further
shown his ignorance that his those sons are jobless and due to which
he could not get them married. He also shown his ignorance that
Muzafar Hussain Qureshi intends to start his business in the rented
shop with his sons. It is also an admitted position in the evidence that
applicant Muzafar Hussain Qureshi having job in SASSO, had come to
an end and he is jobless. Furthermore, the applicants / landlords are
admittedly the registered owners of the rented premises. If it is so,
Section 15(2)(vii) of SRPO 1979 gives unfettered right to the
applicants/landlords to get the rented shop vacated for their own
occupation or use or occupation of their spouses or any of their
children. In the case law (supra) reported as 2018 SCMR 1441, it has
been held that;-
“Sole testimony of landlord was sufficient to establish
personal bona fide need, if such statement of landlord was
consistent with averments made in ejectment application---
Impugned order being in accordance with such principle of
law, leave to appeal was refused by Supreme Court”.
 -5-
So far ground of default in payment of rent, the applicant
deposed in his affidavit in evidence that the opponent / tenant made
default in payment of rent from February, 2005 to September, 2015.
He given legal notices to the opponent / tenant and some of them were
replied. In his cross, he watching the receipt dated 04.09.2015
annexed with the written reply deposed that it does not bear his
signature and rent sent to him through money order by the opponent
was refused by him and the opponent/tenant started depositing the
same in the Court, however, he made voluntarily disclosure that the
opponent/tenant started depositing the rent since September 2015.
The opponent / tenant he in his cross watching the receipts filed by
him with his affidavit in evidence vide Ex.40/B-1 to Ex.40/B-21 dated
06.10.2011 to 04.09.2015 shown his ignorance that these receipts are
written with one pen and ink on similar papers and further shown his
ignorance that these receipts bore forged signatures of Muzafar
Hussain Qureshi. He denied that these receipts are forged one but
admitted that such fact he did not mention in his affidavit in evidence
as well as in his written reply to rent application. As far as the rent sent
through money order, he admitted that he sent first money order on
26.11.2015 for two months rent while the rent application was filed on
27.05.2015. Thus, it stood proved that he sent money order after filing
of rent application and this is what which is admitted by him also.
Though, the opponent/tenant claimed that he sent the rent through
receipts dated 06.10.2011 to 04.09.2015 but admitted that nothing
like this is mentioned in his reply of legal notice in respect of those
receipts. He admitted that he in his reply of legal notice dated
12.10.2015, has not mentioned that he is not defaulter in payment of
rent. If it is so, the opponent/tenant committed default in payment of
rent. Thus from the above discussion, it appears that the
applicants/landlord remained consistent with the averments made in
the ejectment application. I therefore, hold that the impugned order
does not require interference by this Court, hence, point No.1 is replied
in negative.

POINT NO.II
12. In the light of the discussion aforesaid, instant appeal
stands dismissed, therefore, order passed by learned trial court/Rent
Controller shall hold the field. The parties to bear their own costs. The
restraining order dated 04.02.2019 passed by this Court is vacated. Let
certified true copy of order be transmitted to learned Rent Controller
alongwith R&Ps.
 Announced in open court,
Given under my hand & seal of this Court, this the 13thday of February, 2018

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
IN THE COURT OF VI-ADDITIONAL DISTRICT JUDGE,
HYDERABAD
Civil Revision Appln. No.117 of 2017
Ghulam Zainab alias Mst. Zainoon
Wd/o Nasir Khan Rind, Muslim, adult
R/o House No.G-1791, Near Sheezan Hotel
Misri Shah Road,

Hyderabad………………………………………………………………………………

Applicant.

VERSUS

(1) Pervez S/o Ghulam Muhammad

Muslim, adult, by caste Soomro
R/o Baqil Pota Mohallah, District Matiari

(2) Mst. Aami W/o Nazir alias Mama

(3) Nazir alias Mama S/o not known

All Muslims, adults, by caste Rind
Occupants and in illegal possession of
House No.1791/G, Ward G, near Dargah
Deen Ali Shah, Tank No.3, Hyderabad

(4) The Mukhtiarkar City/City Surveyor Ward “G”

Hyderabad

(5) The Assistant Commissioner City

Hyderabad……………………………………….

……………………………………….……..Respondents.

Mr. Muhammad Aamir Qureshi, Advocate for applicant.

Mrs. Rehana Nazeer Gujjar, Advocate for respondent No.1

ORDER
_____.04.2019
This order shall dispose of above Civil Revision Application
filed by the applicant against order dated 14.09.2017, passed by VIth.
Senior Civil Judge, Hyderabad whereby learned trial Court allowed the
execution application.
2. Concisely, fact of F.C.Suit No.679 of 2014 are that
respondent No.1 filed Suit for Possession and Permanent Injunction
stating that he purchased house constructed over C.S. No.1791 Ward
“G” admeasuring 31.08 Sq yards, from one Muhammad Qasim through
R.D. No.5010 dated 18.12.1995 and such mutation is also mutated in
the record of rights. It is further pleaded in the plaint that plaintiff is
performing his job at Hala and the suit property was on license with
Mst. Lal Khatoon, who expired and so also Mst. Ghulam Zainab long
ago, hence, he demanded possession of the house from defendants
Nos.1 to 3 being in possession as licensee but they refused to vacate
the same despite the fact that license was cancelled by the plaintiff. It
is further stated in the plaint that on such demand, defendants Nos.1
to 3 converted their status into ownership, hence, plaintiff rushed to
defendant No.4 where he was
 -2-

confirmed that his status is still intact and previously an attempt was
applied to create clouds over his title through registered sale deed
which was subsequently cancelled and that plaintiff also approached
Nekmards of defendants Nos.1 to 3 but they refused to leave the
possession, hence, plaintiff filed I.D. Complaint but the same was
dismissed due to lack of communication between him and his counsel.
It is further stated in the plaint that defendants Nos.1 to 3 are in illegal
possession of the suit property and they have no right, title and
interest over the suit property, hence, plaintiff filed the instant suit
with the following prayers;-
(a) Grant a decree directing the defendant to peaceful
possession of House constructed C.S. No.1791, Ward “G”
admeasuring 31.08 Sq yards, Hyderabad and declare that
the defendant Nos.1 to 3 had got no right, title or interest
in the suit house, as the plaintiff is legal, lawful, legitimate
owner of the said house;

(b) Grant Permanent injunction restraining, prohibiting and

preventing the defendant Nos.1 to 3 personally through
their agents, assignees, successor, sub-ordinate or any
other persons directly or indirectly in any manner
whatsoever from creating any sort of encumbrances over
the suit house constructed C.S. No.1791 Ward “G”
admeasuring 31.08 Sq. Yards, Hyderabad by selling,
mortgaging, gifting, transferring, allotting, alienating the
said house to any one etc so also the defendants No.4 to
and 5 be restrained, prevented and prohibited from making
any kind of entry in the City survey record in respect of the
house constructed over C.S. No.1791, Ward “G”
admeasuring 31.08 Sq. yards, Hyderabad till the decision
of the suit;

(c) Award costs of the suit in favour of the plaintiff against the
defendants.

(d) Any other relief deemed fit and proper in light of facts and
circumstances of the case.

3. After service of notice, defendants failed to appear before

the trial Court, hence, service against them was held good and
subsequently they were debarred from filing written statement.
Thereafter, plaintiff filed affidavits-in-exparte proof and learned trial
Court after hearing the plaintiff and his counsel, passed the judgment
dated 25.11.2015 and subsequently defendant No.2 Mst. Ghulam
Zainab alias Zainoon moved application U/S. 12(2) CPC which learned
trial Court after hearing the parties, dismissed the same. Plaintiff also
filed execution application, which was allowed by impugned order.
4. Learned counsel for applicant argued that
document dated 25.08.1971 which is a entry made by Revenue
Department and this document at serial No.3,4 & 5 mentions the
names of legal heirs which are deleted/crossed without any order of
any Revenue Officer and on the backside of this document detail of
transfer of inheritance is written. He further argued that Article 100 of
Qanune-e-Shahadat provides that 30 years old document, has weight
in law and its genuineness cannot be denied. He further contended
that Mst. Rehmat and Sharifan filed old Suit No.211/2000 new
No.13/2002, which was decreed Mst. Hurmat and Rehmat filed Civil
Revision No.45/2006 before High Court which was dismissed. Legal
heirs Muhammad Hasham and 2 others whose names were deleted
from entry No.82, filed 12(2) CPC application before High Court, the
same was returned with directions to be presented before the trial
Court and they accordingly presented the same in which otherside
appeared on notice and after hearing the parties the learned trial Court
passed order dated 03.09.2016 whereby 12(2) application was
dismissed. Hence, the present revision application.
5. On the other hand DDA at the very outset argued that it is
the case which may be remanded to the trial Court with directions to
frame issue and record evidence because appellant asserts that they
are one of the legal heirs of deceased and if it is so this very issue
requires evidence. He while arguing the point of limitation, contended
that it is mix question of law and fact, which also requires evidence.
6. I have carefully considered the submissions of learned
counsel for the parties and perused the material available on record.
7.
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IN THE COURT OF VITH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.

Sessions Case No.153 of 2019

The State

Versus

1. Gulab S/o Soomar Mallah (in custody)

2. Ahmed S/o Misri Mirjat (absconder) …………………………………Accused.

Crime No.207/2018
P.S. Tando Jam, Hyderabad
U/s 324, 353, 34 PPC

Mr.Attiq-ur-Rehman, learned DDPP for the State

Syed Tofiq Ahmed Shah, learned counsel for accused

J U D G E M E N T
06-04-2019
The above named accused have been sent up to stand
their trial in the above case and crime by Police Station Tando Jam
Hyderabad for the offence punishable U/s 324, 353, 34 PPC, vide
challan admitted on 28.11.2018.
2. Facts, in brief, are that on 23.10.2018 at 2200 hours SIP
Bashir Ahmed Kalhoro, registered FIR of present case alleging that on
the same day he alongwith his staff HC Barkat Ali, PC Jawaid Ahmed,
PC Ellahi Bux and PC Ahmed Ali left Police Station for patrol of the area
in Government Mobile vide entry No.34 at about 1930 hours. After
patrol of different places they arrived at Khatian Phatak where he
received spy information that absconding accused Gulab S/o Soomar
Mallah of Crime No.204 of 2018, U/S. 324, 353, 34 PPC alongwith his
companion Ahmed S/o Misri are coming on motorbike from Matiari
towards Tando Jam. After receiving such information, police party
arrived at Laghari Mori and started checking and at about 2030 hours
complainant party noticed two persons riding on motorcycle were
coming from Matiari side, who were signaled to stop with the help of
torch light, in the meanwhile both culprits took out pistols from their
folds and opened straight firing upon police party with intention to
commit their murder and police party also getting position made firing
in defence, during which, one person having been identified as Ahmed
S/o Misri Mirjat escaped away towards Matiari after turning motorcycle
while another accused was found lying injured to whom police party
took into custody and snatched pistol from his right hand who was
checked and found having injury on his right leg knee and blood was
oozing. Thereafter bandage was applied on his injury and on inquiry he
disclosed his name as Gulab S/o Soomar Mallah. In absence of private
mashirs, HC Barkat Ali
 -2-

and PC Ellahi Bux were appointed as mashirs. The pistol was unloaded
and one live bullet of 30-Bore was found in its magazine which was
declared by the accused as unlicensed. Upon his personal search, two
notes of Rs.50/- each were also recovered from his side pocket of shirt.
He disclosed the name of his companion as accused Ahmed S/o Mirjat.
Thereafter the injured accused with letter was referred to Rural Health
Centre Tando Jam for treatment through PC Jawaid Ahmed and PC
Ahmed Ali. The complainant upon source of torch light recovered 03
empties of 30-Bore and 05 empty shells of SMG and after sealing the
same prepared such memo of arrest and recovery and after bringing
the accused and property at Police Station, he lodged present FIR and
so also another FIR U/S. 23-A Sindh Arms Act against the accused.
3. As result of investigation, the investigation officer
submitted challan against both the accused before the area
Magistrate, who accepted the challan and sent up the case to the
Court of Honourable Sessions Judge, Hyderabad, on jurisdictional
ground and wherefrom the R & Ps received by this Court for its
disposal according to law.
4. In compliance of Section 265-C Cr.P.C. necessary case
papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.4, to which he did
not plead guilty and claimed to be tried vide his plea was recorded at
Ex.4/A.
5. Prosecution examined Investigation Officer as PW-1 at
Ex.5, he produced letter for FSL and FSL report at Ex.5/A and 5/B
respectively, mashir of the incident as PW-2 at Ex.6, he produced
memo of arrest and recovery at Ex.6/A and memo of place of
occurrence at Ex.6/B and complainant SIP Bashir Ahmed as PW-3 at
Ex.7, he produced departure and arrival entry at Ex.7/A and FIR at
Ex.7/B. Thereafter learned ADPP for the State closed the side in
evidence vide his statement at Ex.8.
6. Statement U/s 342 Cr.P.C. of accused was recorded at
Ex.9, who denied all the allegations leveled against him by the
prosecution and claimed to be innocent, however, he did not opt to
examine himself on oath or produce witnesses in defence.
7. Learned D.D.P.P. for the State argued that prosecution
witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
 -3-

8. Learned counsel for the accused, on the other hand,

argued that prosecution case is highly doubtful contending further that
there is no cogent evidence with the prosecution and that P.Ws
examined have contradicted to each other on material facts. He further
argued that the accused is innocent as he was arrested from Jhudo City
and then involved in this case after making him half fry, therefore, they
may be acquitted from the charge.
9. I have heard learned A.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-

(i) Whether on 23.10.2018 at 2050 hours at the road leading

to Matiari near Laghari Mori, Hyderabad accused alongwith
absconding accused Ahmed in furtherance of their
common intention being armed with weapons fired at
complainant party with intention to commit their murder
and did an act with such intention and under such
circumstances if by the said act accused have committed
Qatl of any member of said police party, they would have
been guilty of their Qatl-i-Amd and also deterred
complainant party from discharging their lawful duties?

(ii) What offence if any, has been committed by the accused?

My findings on the above points with reasons thereto are

as under:-
FINDINGS

POINT NO.I Doubtful.

POINT NO.II Accused Gulab is acquitted U/s 265-H(i) Cr.P.C.

REASONS
POINT NO.I

10. To prove this point, the prosecution examined 03

witnesses out of which, PW-2 HC Barkat Ali Ex.6 and PW-3 SIP Bashir
Ahmed Ex.7 are examined as star witnesses of the occurrence. Per
contents of FIR, firstly the injured was referred to Hospital for
treatment and thereafter recovery of empty shell was effected from
the place of occurrence and then PW-3, the complainant, sealed the
property and prepared memo of arrest and recovery and then came at
Police Station and did other formalities whereas PW-2 deposed
otherwise that after completing formalities at place of occurrence
including that of preparation of memo and sealing of property, they
brought the accused and property at Police Station wherefrom the
injured was referred to Hospital with letter for treatment. PW-2
deposed that firstly the injured was brought at
 -4-

Hospital for treatment and then complainant returned back at place of

occurrence and prepared such memo of arrest and recovery. PW-1
claimed that he got custody of accused, Police papers and property for
investigation on 24.10.2018 for investigation from SIP Bashir Ahmed
Kalhoro, the PW-2, PW-3 also deposed that it is the PW-1 who
conducted investigation whereas PW-3 made a very strange statement
that it is he who conducted the investigation of the case and after
concluding the same submitted the challan also. If it is so, he remains
silent that he visited place of occurrence and also prepared such
memo whereas PW-2 added that PW-1 visited place of wardat, effected
recovery of empty shells and prepared such memo in his presence and
that of co-mashir PC Ellahi Bux and also prepared such memo Ex.6/B
which bore signature of ASI being its author. If it is assumed to be
correct that it is PW-3 who conducted investigation, he remained silent
as to on which date he sent the property to expert for opinion and on
which date he visited place of occurrence. Again, if memo of site
inspection Ex.6/B is presumed to be correct that it is PW-1 who
effected recovery of empty shells in presence of mashirs even though
such piece of evidence carry no weight because PW-3 claimed in his
chief that it is he who effected recovery of empty shells also and then
came at Police Station. Though, it is deposed by the PW-2 and PW-3
that the accused made direct firing upon them but both of these PWs
deposed in the same breath that they as well as their mobile remained
safe. PW-2 deposed that after about 40 minutes of occurrence, the
complainant prepared memo of arrest and recovery after coming back
from Hospital whereas PW-3 deposed otherwise. Yet occurrence is
shown to have taken place at about 2030 hours and this is the time
which is mentioned in the memo of arrest and recovery. PW-3 deposed
that the spy informer came on motorcycle and given him information
whereas PW-2 as to this aspect of the matter is silent. Both PWs
deposed in the same breath that the pistol recovered from the accused
was in original and fit position. PW-3 added that it was having black
colour plastic strips to its both sides of the butt but they watching the
pistol deposed that its one side plastic strip is not available to its butt
and the same was wrapped with black coloured plastic solution tape. It
is also matter of record that though these PWs claimed that cash of
Rs.100/- in the shape of two Pak currency notes of Rs.50/- each were
also recovered from the accused but neither the memo of arrest and
recovery mentions the numbers of these notes nor the same is
produced before this Court as part of case property. It is settled
principle of law that even if a single contradictory statement is found in
the prosecution case the benefit whereof could got to accused always
whereas the case in hand is full of flaws and material irregularities. In
view of above
 -5-

discussion, I am of the humble view that prosecution has failed to

prove its case against the accused beyond any reasonable shadow of
doubt. Accordingly, the point under discussion is answered as doubtful
and not proved.
POINT NO.II

11. In view of the aforementioned appraisal of evidence, I am

of the humble view that the prosecution has miserably failed to bring
home the guilt against the accused beyond any shadow of reasonable
doubt, hence, accused Gulab S/o Soomar Mallah is given benefit of
doubt and stands acquitted of the charge U/s 265-H(i) Cr.P.C. He
produced in custody, is remanded back to same Jail with directions to
Jail Superintendent to release him forthwith, if he is not required in any
other custody case/crime. As regards the case against co-accused
Ahmed S/o Misri Mirjat keeping the same on dormant record shall be of
no effect as nothing has come on record against him. The only
statement of witnesses that they identified him on torch light and
further present accused introduced his name before them, the like
identification and statement of present accused before complainant
carry no weight till such statement was got recorded before
Magistrate, therefore, extending benefit of doubt to co-accused Ahmed
S/o Misri Mirjat is also acquitted in absentia under the same provision
of law. Copy of this judgment be sent to concerned Police Station for
information and record.
Pronounced in open Court this 6th of April 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.

CASE PROPERTY ORDER U/S 517 CR.P.C

The case property as shown in the charge sheet viz. 05

empty shells of SMG, 03 empty shells of 30-Bore, one T.T. pistol of 30-
Bore without number having plastic solution tape alongwith magazine,
one live bullet be deposited in District Armoury for its disposal
according to law whereas Rs.100/- recovered from accused Gulab has
not been claimed by him, be confiscated in favour of Sindh
Government and deposited in Government Treasury, after expiry of
appeal period.
Dated this 6th of April, 2019.
 (MUHAMMAD FAZIL BOHIO)
VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
 HOW TO VERIFY THIS DOCUMENT
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Document Code: BB82586D16CF76AD0ED1CEFC34451509

IN THE COURT OF VITH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.

Sessions Case No.154 of 2019
The State
Versus
Gulab S/o Soomar Mallah………………….…….……………..…………………………Accused.
Crime No.208/2018
P.S Tando Jam, Hyderabad
U/s 23-A Sindh Arms Act

Mr. Attiq-ur-Rehman, learned ADPP for the State

Syed Tofiq Ahmed Shah, learned counsel for accused

J U D G E M E N T
06-04-2019

The above named accused has been sent up to stand his

trial in the above case and crime by Police Station Tando Jam
Hyderabad for the offence punishable U/s 23-A Sindh Arms Act, vide
challan admitted on 28.11.2018.
2. Facts of the present case in nutshell are that complainant
Bashir Ahmed Kalhoro of Police Station Tando Jam, registered the
present FIR on 23.10.2018 at 2230 hours alleging that already arrested
accused namely Gulab S/o Soomar Mallah in Crime No.207/2018, U/S.
324, 353, 34 PPC was found possessing an unlicensed 30-Bore pistol
alongwith magazine containing one live bullet, hence, present FIR was
registered.
3. As result of investigation, the investigation officer
submitted challan against both the accused before the area
Magistrate, who accepted the challan and sent up the case to the
Court of Honourable Sessions Judge, Hyderabad, on jurisdictional
ground and wherefrom the R & Ps received by this Court for its
disposal according to law.
4. In compliance of Section 265-C Cr.P.C. necessary case
papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.2, to which he did
not plead guilty and claimed to be tried vide his plea was recorded at
Ex.2/A.
5. Prosecution examined Investigation Officer as PW-1 at
Ex.3, he produced letter for FSL and FSL report at Ex.3/A and 3/B
respectively, mashir of the incident as PW-2 at Ex.4, he produced
memo of arrest and recovery at Ex.4/A and memo of place of
occurrence at Ex.4/B and complainant SIP Bashir Ahmed as PW-3 at
Ex.5, he produced departure and arrival entry at Ex.5/A and FIR at
Ex.5/B. Thereafter learned ADPP for the State closed the side in
evidence vide his statement at Ex.6.
 -2-

6. Statement U/s 342 Cr.P.C. of accused was recorded at

Ex.7, who denied all the allegations leveled against him by the
prosecution and claimed to be innocent, however, he did not opt to
examine himself on oath or produce witnesses in defence.
7. Learned D.D.P.P. for the State argued that prosecution
witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
8. Learned counsel for the accused, on the other hand,
argued that prosecution case is highly doubtful contending further that
there is no cogent evidence with the prosecution and that P.Ws
examined have contradicted to each other on material facts. He further
argued that the accused are innocent, he was arrested from Jhudo City,
then he was made half fry then involved in this false case, therefore,
they may be acquitted from the charge.
9. I have heard learned D.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-
(i) Whether on 23.10.2018 at 2030 hours accused arrested by
police party in Crime No.207 of 2019, U/S. 324, 353, 34
PPC from link road leading to Matiari near Laghari Mori,
Hyderabad after an encounter in injured condition and was
found possessing an unlicensed 30-Bore T.T pistol
alongwith magazine containing one live bullet?

(ii) What offence if any, has been committed by the accused?.

My findings on points (I) and (II) are as under:-
FINDINGS

POINT NO.I Not provd.

POINT NO.II Accused is acquitted U/s 265-H(i) Cr.P.C.

REASONS
POINT NO.I

10. To prove this point, the prosecution examined 03

witnesses out of which, PW-2 HC Barkat Ali Ex.6 and PW-3 SIP Bashir
Ahmed Ex.7 are examined as star witnesses of the occurrence. Per
contents of FIR, firstly the injured was referred to Hospital for
treatment and thereafter recovery of empty shell was effected from
the place of occurrence and then PW-3, the complainant, sealed the
property and prepared memo of arrest and recovery and then came at
Police Station and did other formalities whereas PW-2 deposed
otherwise that after completing formalities at place of occurrence
including that of preparation of memo and sealing of property, they
brought the accused and
-3-

property at Police Station wherefrom the injured was referred to

Hospital with letter for treatment. PW-2 deposed that firstly the injured
was brought at Hospital for treatment and then complainant returned
back at place of occurrence and prepared such memo of arrest and
recovery. PW-1 claimed that he got custody of accused, Police papers
and property for investigation on 24.10.2018 for investigation from SIP
Bashir Ahmed Kalhoro, the PW-2, PW-3 also deposed that it is the PW-1
who conducted investigation whereas PW-3 made a very strange
statement that it is he who conducted the investigation of the case and
after concluding the same submitted the challan also. If it is so, he
remains silent that he visited place of occurrence and also prepared
such memo whereas PW-2 added that PW-1 visited place of wardat,
effected recovery of empty shells and prepared such memo in his
presence and that of co-mashir PC Ellahi Bux and also prepared such
memo Ex.6/B which bore signature of ASI being its author. If it is
assumed to be correct that it is PW-3 who conducted investigation, he
remained silent as to on which date he sent the property to expert for
opinion and on which date he visited place of occurrence. Again, if
memo of site inspection Ex.6/B is presumed to be correct that it is PW-
1 who effected recovery of empty shells in presence of mashirs even
though such piece of evidence carry no weight because PW-3 claimed
in his chief that it is he who effected recovery of empty shells also and
then came at Police Station. Though, it is deposed by the PW-2 and
PW-3 that the accused made direct firing upon them but both of these
PWs deposed in the same breath that they as well as their mobile
remained safe. PW-2 deposed that after about 40 minutes of
occurrence, the complainant prepared memo of arrest and recovery
after coming back from Hospital whereas PW-3 deposed otherwise. Yet
occurrence is shown to have taken place at about 2030 hours and this
is the time which is mentioned in the memo of arrest and recovery.
PW-3 deposed that the spy informer came on motorcycle and given
him information whereas PW-2 as to this aspect of the matter is silent.
Both PWs deposed in the same breath that the pistol recovered from
the accused was in original and fit position. PW-3 added that it was
having black colour plastic strips to its both sides of the butt but they
watching the pistol deposed that its one side plastic strip is not
available to its butt and the same was wrapped with black coloured
plastic solution tape. It is also matter of record that though these PWs
claimed that cash of Rs.100/- in the shape of two Pak currency notes of
Rs.50/- each were also recovered from the accused but neither the
memo of arrest and recovery mentions the numbers of these notes nor
the same is produced before this Court as part of case property. It is
settled principle of law that even if a single contradictory statement is
found in the prosecution case the benefit whereof could got to accused
always whereas
-4-
the case in hand is full of flaws and material irregularities. In view of
above discussion, I am of the humble view that prosecution has failed
to prove its case against the accused beyond any reasonable shadow
of doubt. Accordingly, the point under discussion is answered as
doubtful and not proved.
POINT NO.II

11. In view of the aforementioned appraisal of evidence, I am

of the humble view that the prosecution has miserably failed to bring
home the charge against the accused beyond any shadow of
reasonable doubt, hence, accused Gulab S/o Soomar Mallah is given
benefit of doubt and stands acquitted of the charge U/s 265-H(i) Cr.P.C.
He is produced in custody, is remanded back to custody with directions
to Jail Superintendent to release him forthwith, if he is not required in
any other custody case/crime.
Pronounced in open Court this 6th of April 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.

CASE PROPERTY ORDER U/S 517 CR.P.C

The case property as shown in the charge sheet viz. one

T.T. pistol of 30-Bore without number having plastic solution tape
alongwith magazine, one live bullet be deposited in District Armoury
for its disposal according to law after expiry of appeal period.
Dated this 6th of April, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
 HOW TO VERIFY THIS DOCUMENT
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B2B0146B53F0EED85005B4702D7230C1

IN THE COURT OF VITH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.

Sessions Case No.183 of 2019

The State
Versus
Sher Lala S/o Sirajuddin Kakar (in custody)……………………Accused.
Crime No.05/2019
P.S. Hali Road, Hyderabad
U/s 324, 337-H(ii) PPC
Mr.Attiq-ur-Rehman, learned DDPP for the State
Mr. Taimoor Hussain, learned counsel for accused
J U D G E M E N T
06-04-2019
The above named accused has been sent up to stand his
trial in the above case and crime by Police Station Hali Road
Hyderabad for the offence punishable U/s 324, 337-H(ii) PPC, vide
challan admitted on 07.02.2019.
2. Facts, in brief, are that on 21.01.2019 at 1615 hours
complainant Jawaid Hussain Shah, registered FIR of present case
alleging that on the same day at about 1500 hours he was available in
the street of his house with Mohallah people namely Salman @ Sallo
S/o Mohram Khaskheli, Abbas Ali S/o Rasool Bux Panhwar, Altaf S/o
Arbab Ali Magsi and Rehan Bhatti S/o Akram Bhatti and they were
talking to each other when one person being armed with pistol was
coming by making firing in the air to whom they restrained from
making firing on which he pointed the pistol upon them and with
intention to commit their murder, made direct firing but they were
saved luckily. On fire reports, neighbourers came from their houses
and they apprehended the said person and snatched pistol from his
hands. Then complainant informed the incident to 15 Police,
meanwhile area police arrived there and custody of captive was
handed over to ASI Shahbaz Khan Naghar alongwith pistol. The captive
disclosed his name as Sher Lala S/o Sirajuddin to said ASI who
unloaded the pistol and found one live bullet and one missed bullet in
its magazine and the accused disclosed the recovery as unlicensed.
Thereafter ASI Shahbaz completed necessary formalities and after
bringing the accused at Police Station, lodged FIR of present case
against the accused.
3. As result of investigation, the investigation officer
submitted challan against both the accused before the area
Magistrate, who accepted the challan and sent up the case to the
Court of Honourable Sessions Judge, Hyderabad, on jurisdictional
ground and wherefrom the R & Ps received by this Court for its
disposal according to law.
 -2-

4. In compliance of Section 265-C Cr.P.C. necessary case

papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.2, to which he did
not plead guilty and claimed to be tried vide his plea was recorded at
Ex.2/A.
5. Prosecution examined complainant Jawaid Hussain Shah as
PW-1 at Ex.3, he produced FIR at Ex.3/A, mashir of the incident as PW-
2 at Ex.4, he produced memo of place of occurrence at Ex.4/A and
memo of arrest and recovery at Ex.4/B, author of FIR as PW-3 at Ex.5
and Investigating Officer ASI Wasand Rai as PW-4 at Ex.6, he produced
letter for FSL at Ex.4/A and FSL report at Ex.6/B. Thereafter learned
ADPP for the State closed the side in evidence vide his statement at
Ex.7.
6. Statement U/s 342 Cr.P.C. of accused was recorded at
Ex.8, who denied all the allegations leveled against him by the
prosecution and claimed to be innocent, however, he did not opt to
examine himself on oath or produce witnesses in defence.
7. Learned D.D.P.P. for the State argued that prosecution
witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
8. Learned counsel for the accused, on the other hand,
argued that prosecution case is highly doubtful contending further that
there is no cogent evidence with the prosecution and that P.Ws
examined have contradicted to each other on material facts. He further
argued that the accused is innocent as he was arrested from Jhudo City
and then involved in this case after making him half fry, therefore, they
may be acquitted from the charge.
9. I have heard learned A.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-

(i) Whether on 21.01.2019 at 1500 hours in front of house of

complainant situated at Ghareeb Nawaz Colony,
Hyderabad accused being armed with 30-Bore pistol fired
at complainant party with intention to commit their murder
and did an act with such intention and under such
circumstances that if by the said act accused has
committed Qatl of any member of said police party, he
would have been guilty of their Qatl-i-Amd and also made
aerial firing rashly and negligently to endanger
complainant’s life and safety?
 (ii) What offence if any, has been committed by the accused?

My findings on the above points with reasons thereto are

as under:-
 -3-

FINDINGS

POINT NO.I Doubtful.

POINT NO.II Accused is acquitted U/s 265-H(i) Cr.P.C.

REASONS
POINT NO.I

10. To prove its case, prosecution examined in all 04

witnesses. PW-1, the complainant Jawaid Hussain Shah examined at
Ex.3 who in his chief even deviated from the information first given by
him to the police i.e. F.I.R in which he claimed that on the day of
occurrence he was available in the street adjacent to his house and
was busy in talking with Mohallah people when the accused came
making firing in the air and upon asking, made direct firing upon them
whereas he in his chief deposed otherwise that on that day he was
available in his house and hearing firing reports, came out and saw a
person making firing with pistol. The complainant in his chief deposed
that ASI Muhammad Shahbaz unloaded the pistol and found one live
bullet in the chamber of pistol only and then he removed the custody
of accused and property to Police Station whereas the FIR discloses
otherwise which too in a very strange manner that the pistol was
unloaded by the complainant and found two bullets in its magazine out
of which one was live and the other missed. If later statement is
presumed to be correct then statement of PW-2 becomes doubtful as
this PW and so also statement of complainant that the accused was
captured when he made a fire but that was missed as the bullet was
blocked in the chamber. If it is so then how the bullet which missed
and blocked in the chamber was found available in the magazine of
pistol. PW-2 deposed that bullet fired by the accused hit wall and the
same mark was shown by him to ASI Muhammad Shahbaz as well as
I.O and they noted down such mark also whereas PW-3, the ASI
Muhammad Shahbaz, in his cross deposed otherwise that the alleged
firing even did not hit door, wall and house. Yet PW-4, the investigation
officer in his cross deposed, which reads that “it is fact that I did not
see the marks of bullet upon nearby walls/houses and shutters of the
shops etc”. In addition to this, PW-1, the complainant and PW-2, the
mashir of memos of arrest, recovery and site inspection remained
silent as to whether any memo of arrest and recovery was prepared at
spot. PW-2 as to this aspect of the matter, deposed that “firstly the
signature of complainant was obtained upon FIR and thereafter my
signature was obtained upon two written papers. I see memo of arrest
and recovery Ex.4/B and so also memo of wardat Ex.4/A and say my
signatures on these documents were obtained at
 -4-

Police Station”. Yet to this aspect of the matter, ASI Muhammad

Shahbaz deposed which too in his chief that he brought the accused
and property at Police Station where he prepared such memo of arrest
and recovery and sealed the property in the cloth parcel. In addition to
this, this PW since did not support the fact that it is he who registered
the FIR, was declared as hostile by the State, however, he was not
suggested as to whether he prepared the memo of arrest and recovery
and so also sealed the property at the spot. According to complainant,
the pistol was handed over to Police by PW Salman whereas PW-3
deposed otherwise that pistol was handed over to him by complainant
Jawaid Hussain. PW-3 deposed that the pistol was unloaded by a police
constable who is not available in Court today whereas PW-3 claimed
that it is he who unloaded the pistol. In addition to this, ASI Muhammad
Shahbaz who claimed that on receiving information, he arrived at
pointed place and did all acts but he failed to produce departure as
well as arrival entries so that his movement could be visualized. Same
is the position of the Investigation Officer PW-4 who claimed that
during investigation, he visited place of occurrence, prepared such
memo which he brought on record at Ex.4/A and further sent the
property to the expert with letter but he in his cross admitted that he
has not produced the relevant entry by which he left police station and
did these acts. The expert report shows that the same was sent
through PC Ashfaque to FSL authorities but PW-4 claimed that he
himself brought the property for checkup before examiner. In addition
to this, there are other inconsistent statements appearing in the
evidence of the prosecution witnesses but those are unnecessary to be
discussed specially in view of the above discussion. In view of the
above discussion, I am of the considered view that prosecution has
failed to prove the point under discussion which is answered in
negative.
POINT NO.II

11. In view of the aforementioned appraisal of evidence, I am

of the humble view that the prosecution has miserably failed to bring
home the charge against the accused beyond any shadow of
reasonable doubt, hence, accused Sher Lala S/o Sirajuddin Kakar is
given benefit of doubt and stands acquitted of the charge U/s 265-H(i)
Cr.P.C. He is produced in custody, is remanded back to custody with
directions to Jail Superintendent to release him forthwith, if he is not
required in any other custody case/crime.
Pronounced in open Court this 6th of April 2019.
 (MUHAMMAD FAZIL BOHIO)
VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
 -5-

CASE PROPERTY ORDER U/S 517 CR.P.C

The case property as shown in the charge sheet viz. one

30-Bore T.T. pistol No.31005587 of black colour, magazine one live and
one missed bullet, two empties of 30-Bore be deposited in District
Armoury for its disposal according to law after expiry of appeal period.
Dated this 6th of April, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
 HOW TO VERIFY THIS DOCUMENT
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Document Code: 68902717E99FF0E4F3F7E74600F06F03
IN THE COURT OF VITH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.
Sessions Case No.184 of 2019
The State
Versus
Sher Lala S/o Sirajuddin Kakar (in custody)……………………Accused.
Crime No.06/2019
P.S Hali Road, Hyderabad
U/s 23-A Sindh Arms Act

Mr. Attiq-ur-Rehman, learned ADPP for the State

Mr. Taimoor Hussain, learned counsel for accused

J U D G E M E N T
06-04-2019

The above named accused has been sent up to stand his

trial in the above case and crime by Police Station Hali Road
Hyderabad for the offence punishable U/s 23-A Sindh Arms Act, vide
challan admitted on 07.02.2019.
2. Facts of the present case, in nutshell, are that complainant
ASI Shahbaz Khan Naghar of Police Station Hali Road, Hyderabad, on
21.01.2019 at 0840 hours he alongwith his staff each PC Ghulam
Ghous and DHC Akhtar Ali left Police Station for patrol of the area in
Government Mobile vehicle No.SPD-972 and on receiving information
from 15 Police, they arrived at Ghareeb Nawaz Colony where Syed
Jawaid Hussain Shah, Salman alias Sallo, Abbas Ali, Altaf and Rehan
handed over custody of a person alongwith pistol recovered by them
from him. On inquiry, apprehended person disclosed his name as Sher
Lala S/o Sirajuddin and then pistol was checked in presence of mashirs
Rehan Bhatti and Abbas Ali and found one live and missed bullets in its
chamber, which was declared by him as unlicensed and on his personal
search nothing was recovered. Thereafter recovered property was
sealed in white cloth bag. Such memorandum of arrest and recovery
was prepared in presence of aforesaid mashirs at 1545 hours and
bringing the accused at Police Station registered the FIR.
3. As result of investigation, the investigation officer
submitted challan against both the accused before the area
Magistrate, who accepted the challan and sent up the case to the
Court of Honourable Sessions Judge, Hyderabad, on jurisdictional
ground and wherefrom the R & Ps received by this Court for its
disposal according to law.
 -2-

4. In compliance of Section 265-C Cr.P.C. necessary case

papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.2, to which he did
not plead guilty and claimed to be tried vide his plea was recorded at
Ex.2/A.
5. Prosecution examined compalinant ASI Shahbaz Khan
Naghar as PW-1 at Ex.3, he produced memo of arrest and recovery at
Ex.3/A and FIR at Ex.3/B, mashir of the incident Rehan Bhatti as PW-2
at Ex.4, he produced memo of place of incident at Ex.4/A and
Investigation Officer ASI Wasand Rai as PW-3 at Ex.5, he produced
letter for FSL at Ex.5/A and FSL report at Ex.5/B. Thereafter learned
ADPP for the State closed the side in evidence vide his statement at
Ex.6.
6. Statement U/s 342 Cr.P.C. of accused was recorded at
Ex.7, who denied all the allegations leveled against him by the
prosecution and claimed to be innocent, however, he did not opt to
examine himself on oath or produce witnesses in defence.
7. Learned D.D.P.P. for the State argued that prosecution
witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
8. Learned counsel for the accused, on the other hand,
argued that prosecution case is highly doubtful contending further that
there is no cogent evidence with the prosecution and that P.Ws
examined have contradicted to each other on material facts. He further
argued that the accused are innocent, he was arrested from Jhudo City,
then he was made half fry then involved in this false case, therefore,
they may be acquitted from the charge.
9. I have heard learned D.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-
(i) Whether on 21.01.2019 at 1500 hours complainant of
Crime No.5/2019 in front of his house situated at Ghareeb
Nawaz Colony, Hyderabad arrested accused and recovered
from hi possession an unlicensed 30-Bore pistol containing
one live bullets and handed over the same to a police party
headed by ASI Muhammad Shahbaz Khan of Police Station
Hali Road, Hyderabad in presence of mashirs?

(ii) What offence if any, has been committed by the accused?.

My findings on points (I) and (II) are as under:-
FINDINGS
 POINT NO.I Doubtful.

POINT NO.II Accused is acquitted U/s 265-H(i) Cr.P.C.

-3-

REASONS
POINT NO.I

10. To prove its case, prosecution examined 03 witnesses. A

minute look at the evidence of these witnesses, it transpires that they
have miserably failed to connect the accused with the commission of
the offence. The FIR disclosed that the pistol recovered by Jawaid
Hussain Shah compalinant of Crime No.5/2019 was unloaded by him
and found one live bullet in its magazine and the other missed bullet in
its chamber. If this is presumed to be correct, then the evidence of PW-
2 becomes doubtful as this PW deposed that the accused was captured
when he made firing and the one bullet fired by him was blocked in the
chamber. If it is so; then how the bullet which missed and blocked in
the chamber was even available in the magazine of pistol. PW-1, the
compalinant, and PW-2, the mashir of memo of arrest recovery and
side inspection both remained silent as to whether any memo of arrest
and recovery was prepared at spot. PW-2 after watching at memo of
arrest and recovery Ex.4/B and so also memo of wardat Ex.4/A
deposed that his signatures on these documents were obtained at
Police Station”. Yet to this aspect of the matter, ASI Muhammad
Shahbaz deposed, which too in his chief, that he brought the accused
and property at Police Station where he prepared such memo of arrest
and recovery and sealed the property in the cloth parcel. In addition to
this, this PW since did not support the fact that it is he who registered
the FIR, was declared as hostile by the State, however, he was not
suggested in his cross by the State as to whether he prepared the
memo of arrest and recovery and so also sealed the property at spot or
not. PW-2 deposed that the pistol was unloaded by a police constable
who is not available in Court today whereas PW-1 claimed that it is he
who unloaded the pistol. In addition to this, ASI Muhammad Shahbaz
who claimed that on receiving information, he arrived at the pointed
place and did all acts but he failed to produce departure as well as
arrival entries so that his movement could be visualized. Same is the
position of the Investigation Officer PW-4, who claimed that during
investigation, he visited place of occurrence, prepared such memo
which he brought on record at Ex.4/A and further sent the property to
the expert with letter but he in his cross admitted that he has not
produced the relevant entry by which he left police station and did
these acts. In addition to this, there are other inconsistent statements
appearing in the evidence of the prosecution witnesses but those are
unnecessary to be discussed specially in view of the above discussion.
In view of the above discussion, I am of the considered view that
prosecution has failed to prove the point under discussion which is
answered in negative.
 -4-

POINT NO.II
11. In view of the aforementioned appraisal of evidence, I am
of the humble view that the prosecution has miserably failed to bring
home the charge against the accused beyond any shadow of
reasonable doubt, hence, accused Sher Lala S/o Sirajuddin Kakar is
given benefit of doubt and stands acquitted of the charge U/s 265-H(i)
Cr.P.C. He is produced in custody, is remanded back to custody with
directions to Jail Superintendent to release him forthwith, if he is not
required in any other custody case/crime.
Pronounced in open Court this 6th of April 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
CASE PROPERTY ORDER U/S 517 CR.P.C

The case property as shown in the charge sheet viz. one

30-Bore T.T. pistol No.31005587 of black colour, magazine one live and
one missed bullet be deposited in District Armoury for its disposal
according to law after expiry of appeal period.
Dated this 6th of April, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
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1904110C2EA4FAFF879D214962843917

IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,

HYDERABAD.

Civil Appeal No.184 of 2017

Muhammad Arif Khan

S/o Haji Muhammad Waheed Khan
Adult, muslim, resident of Quarter No.110
Block-D/1, Unit No.11, Latifabad Hyderabad………………...
………………...Appellant.
VERSUS

1. Mst. Raisa Shareef W/o Muhammad Sharif Khan

D/o Haji Muhammad Waheed Khan, Adult, Muslim
R/o Flat No.F-8, 2nd Floor, Block10, Farah Heights
F.B. Area Karachi

2. Mst. Saeeda Khatoon W/o Abdul Mateen

D/o Haji Muhammad Waheed Khan
Adult, Muslim, Resident of H.No.1117
Sector 7-B Surjani Town, Karachi

3. Mst. Aqeela Khatoon W/o Muhammad Akram

D/o Haji Muhammad Waheed Khan
Adult, Muslim, Resident of H.No.700
Baban Shah Colony, GOR Colony Latifabad Hyderabad

4. Mst. Anis Khatoon W/o Kamran

D/o Haji Muhammad Waheed Khan
Adult, muslim, Resident of Flat No.2, Block-D
Unit No.2, Latifabad Hyderabad

5. Mst. Fahmida Khatoon W/o Mamum Shami

D/o Haji Muhammad Waheed Khan
Adult, muslim, Resident of Flat No.117
IVth Floor, Mazar Wali Gali
Latifabad No.6, Karachi.

6. Mst. Fareeda Waheed

D/o Haji Muhammad Waheed Khan
Adult, muslim, Resident of Q.No.110
Block-D/1, Unit No.11, Latifabad Hyderabad

7. Mst. Jamila Khatoon W/o Naseer

D/o Haji Muhammad Waheed Khan
since death through of Lrs

a. Muhammad Zeeshan Khan S/o Naseer

b. Mst. Hira Naseer D/o Naseer
Both Adult, Muslims, Resident of H.No.1017
Sector 11-E, Muslim Town, North Karachi
c. Mst. Tazeen Saqlaint D/o Naseer
Adult, muslim, Resident of House No.1316
Allah Bakh Goth Ahesanabad Karachi
8. Mst. Shakila Khatoon W/o Shafiq-ur-Rehman
D/o Haji Muhammad Waheed Khan, Adult, muslim
Resident of H.No.256, Jinnah Colony, Unit No.12
Latifabad Hyderabad, Sindh
 -2-

9. The Taluka Administration Regulation

Taluka Latifabad, Office at Unit No.08
Latifabad Hyderabad
10. The Sub-Registrar
Taluka Latifabad Hyderabad
11. The Province of Sindh through
Deputy Commissioner, Hyderabad having
Office at Shahbaz Building, Thandi Sarak

Hyderabad………………………………………………………………………………

….Respondents.

Syed Abbas Ali Jaffery, learned counsel for the appellant.

Mr. Nadeem Shaikh, learned counsel for respondents Nos.1 to 8.
Mr. Waseem-ul-Haq, learned DDA for respondents Nos.10 & 11
Nemo for respondent No.9.

ORDER
08.04.2019

Today the above Civil Appeal was fixed for hearing

arguments. Learned counsel for appellant is present alongwith

appellant. Learned counsel for respondents Nos.1, 2, 5, 7 & 8 has

appeared and filed his power on behalf of remaining private

respondents Nos.3,4 & 6. Learned DDA for officials respondents Nos.10

& 11 is also present. Learned counsel for appellant filed statement

which is taken on record at Ex.52 whereby he has withdrawn the above

appeal on the ground that the parties have settled their differences

outside the Court. Learned counsel for private respondents and so also

DDA for official respondents Nos.10 & 11 getting notice argued that

they have no objection if the statement, as prayed for, is allowed.

Since the withdrawal of Civil Appeal is without any condition, the above

statement stands allowed and thereby the Civil Appeal No.184 of 2017

stands dismissed as withdrawn, however, with no order as to costs.

Announced in open Court.

Given under my hand and seal of the Court this 8th day of April, 2019.

(MUHAMMAD FAZIL BOHIO)

VI-ADDITIONAL DISTRICT JUDGE HYDERABAD
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51E0393EA19E36D881CEF0692DAA11F8

IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,

HYDERABAD.

Civil Appeal No.183 of 2017

Muhammad Arif Khan

S/o Haji Muhammad Waheed Khan
Adult, muslim, resident of Quarter No.110
Block-D/1, Unit No.11, Latifabad Hyderabad………………...
………………...Appellant.
VERSUS

1. Mst. Aqeela Khatoon W/o Muhammad Akram

D/o Haji Muhammad Waheed Khan
Adult, Muslim, Resident of Baban Shah Colony,
GOR Colony Latifabad Hyderabad

2. Mst. Anis Khatoon W/o Kamran

D/o Haji Muhammad Waheed Khan
Adult, muslim, Resident of Flat No.2, Block-D
Unit No.2, Latifabad Hyderabad

3. Mst. Fareeda Waheed

D/o Haji Muhammad Waheed Khan
Adult, muslim, Resident of Q.No.110
Block-D/1, Unit No.11, Latifabad

Hyderabad…………………………….Respondents.

Syed Abbas Ali Jaffery, learned counsel for the appellant.

Mr. Nadeem Shaikh, learned counsel for respondents.

ORDER
08.04.2019

Today the above Civil Appeal was fixed for hearing

arguments. Learned counsel for appellant is present alongwith
appellant. Mr. Nadeem Shaikh, Advocate has appeared alongwith
respondents Nos.1 to 3 and filed power on behalf of these respondents,
which is taken on record. Learned counsel for appellant filed
application U/S 23 Rule 3 C.P.C. R/W Section 151 C.P.C. which is signed
by both the parties having supported with their respective affidavits
whereby it is stated that the parties have settled their differences
outside the Court as per following terms and condition which may be
accepted and such compromise decree may be drawn.
TERMS AND CONDITIONS.
1. That, the respondent No.1 to 3 received amount of
Rs.200,000/- (Rupees Two Lacs) each for their share of
above mention property from the appellant, the detail of
property as under;-
Property of the House No.110, Block D/1, admeasuring
133-0 Sq-yds Unit No.11 Latifabad Hyderabad.
 -2-

2. That, the respondent No.1 to 3 had already executed

register sale deed in favor of the appellant in the office of
the sub-registrar Taluka Latifabad Hyderabad for their
respective share.

3. That, the respondent No.1 to 3 as well as their legal heir(s)

re not entitled to claim in future for their share in the
property viz. House No.110, Block D/1, admeasuring 133-0
Sq-yds, Unit No.11 Latifabad Hyderabad.

4. That the Honourable Court may be pass compromise

decree in the above Civil Appeal.

Learned counsel for both parties argued that amicable

settlement arrived at in between the parties may be accepted and
such compromise decree be drawn. A look at the terms and conditions
of this application, it appears that the compromise arrived at in
between the parties outside the Court is within the pleadings. It is
matter of record that learned trial Court by a consolidated judgment,
decreed the leading Suit bearing F.C.Suit No.733 of 2013 while
subsequent suit bearing No.368 of 2014 was partly dismissed and
partly decreed. The appellant challenged the consolidated judgment of
both suits by filing present Civil appeal and so also another Appeal
bearing No.184 of 2018. The latter appeal has already been dismissed
as withdrawn while in the present appeal the parties thereto settled
their differences amicably outside the Court. Since the compromise
arrived at in between the parties is within the pleadings, the
compromise application is accepted and appeal stands disposed of in
view of above terms and conditions. Let the office prepare such
compromise decree.
Announced in open Court.
Given under my hand and seal of the Court this 8th day of April, 2019.

(MUHAMMAD FAZIL BOHIO)

VI-ADDITIONAL DISTRICT JUDGE HYDERABAD
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Document Code: 81DF3CEA626DDA210FBBF99926D937C2
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
Succession Application No.78 of 2019
Syed Bilawal Hussain Shah
S/o Dildar Ali Shah, R/o House No.B-8
Mohallah Naseem Nagar Faiz 1 Qasimabad
District Hyderabad……………………………………..…………………………Applicant.

Versus

1. Mst. Tayaba Siddiqui Wd/o Dildar Ali Shah

2. Syeda Tabasum Bukhari D/o Dildar Ali Shah
3. Saba Bukhari D/o Dildar Ali Shah
R/o House No.B-8, Mohallah Naseem Nagar
Faiz 1 Qasimabad District Hyderabad
the applicant No.2 is minors through their natural
Guardian opponent No.1
4. General Public at large…………………………………………………Opponents.
Mr. Wilayat Ali Khan Magsi, advocate for the applicant

ORDER
10.04.2019
This order shall dispose of present succession application
filed U/s 372 of Succession Act, 1925 by the applicant in which it is
stated that deceased Dildar Ali Shah S/o Late Syed Imam Ali Shah,
father of applicant and opponents Nos.2 & 3 and husband of opponent
No.1 died on 13.11.2018 leaving behind him, applicant and opponent
No.1 to 3 as his surviving legal heirs. The deceased during his lifetime
was maintaining an Account bearing No.0003029610027 in Allied Bank
Limited Branch Journalist Colony Hyderabad, such schedule is annexed
with the application. The Applicant approached the concerned bank for
providing bank statement and issuance of certificate of shown account
but to no avail.

In support of the case, the affidavits of two independent

witnesses namely Rasheed Kaimkhani S/o Muhammad Bashir Ahmed
and Prince Ali Shah S/o Syed Mushtaque Ali Shah are filed, who have
stated that there is no other legal heir of deceased except the
applicant and opponent Nos.1 to 3. Apart from this, affidavits of
opponent Nos.1 & 3 are also filed extending no objection in favour of
applicant, however, opponent No.3 is minor.

Heard learned counsel and perused the material available

on record.
 -2-
The applicant has prayed for succession certificate in
favour of applicant and opponents Nos.1 to 3 to receive the amount
from the bank as shown in the schedule annexed with application. The
notice was published in daily newspaper “IBRAT” dated 14.03.2019,
however, nobody has come forward to object to the prayer made by
the applicant. In addition to this, report was called from Mukhtiarkar
Taluka Qasimabad, Hyderabad but he failed to furnish the required
report, hence, Show Cause Notice was issued to him but he did not
furnish reply to it. In this regard, learned counsel for applicant
produced the original Heirship issued by said Mukhtiarkar Taluka
Qasimabad, which shows that on the application of applicant,
Mukhtiarkar Taluka Qasimabad, Hyderabad issued Heirship Certificate
dated 08.02.2019, showing the applicant and opponents Nos.1 to 3 as
surviving legal heirs of deceased. This is what which is reported by
SHO Police Station Naseem Nagar vide letter dated 25.03.2019 and the
Deputy Director NADRA Hyderabad Zone in his report dated
18.03.2019. In addition to this, the Manager Allied Bank Limited,
Journalist Colony Branch, Hyderabad in his report dated 22.03.2019
stated that the deceased was having Account No.0010003029610027.
He has also shown in his report the principle amount with mark-up as
Rs.982,946.00 as on 22.03.2019.

Record shows that there is no impediment nor any will has

been found. Therefore, for the aforesaid reasons, the application is
allowed. The Accountant District and Sessions Court, Hyderabad is
appointed as Commissioner with directions to withdraw amount of
Rs.982,946.00 from Allied Bank Limited, Journalist Colony Branch,
Hyderabad lying in Account No. No.0010003029610027 and disburse
the same to the heirs of deceased Dildar Ali Shah i.e. applicant and
opponents Nos.1 & 3 as per their respective shares according to
Muhammadan Law subject to furnishing P.R. Bond of the applicant in
equivalent amount shown in the balance of the deceased and such
report be submitted before this court within 30 days. However,
opponent No.2 is minor, therefore, her share be deposited in a
profitable Government scheme, which shall be withdrawn by her on
attaining the age of majority after proper verification and identification.
The Succession Application stands disposed of accordingly.

Pronounced in open Court.

Given under my hand and the seal of this Court on this 10 th day
of April, 2019.

(MUHAMMAD FAZIL BOHIO)

VIth Additional District Judge, Hyderabad
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
Succession Application No.78 of 2019
Syed Bilawal Hussain Shah
S/o Dildar Ali Shah, R/o House No.B-8
Mohallah Naseem Nagar Faiz 1 Qasimabad
District Hyderabad……………………………………..…………………………Applicant.

Versus

1. Mst. Tayaba Siddiqui Wd/o Dildar Ali Shah

2. Syeda Tabasum Bukhari D/o Dildar Ali Shah
3. Saba Bukhari D/o Dildar Ali Shah
R/o House No.B-8, Mohallah Naseem Nagar
Faiz 1 Qasimabad District Hyderabad
the applicant No.2 is minors through their natural
Guardian opponent No.1
4. General Public at large…………………………………………………Opponents.
Mr. Wilayat Ali Khan Magsi, advocate for the applicant

ORDER
10.04.2019
This order shall dispose of present succession application
filed U/s 372 of Succession Act, 1925 by the applicant in which it is
stated that deceased Dildar Ali Shah S/o Late Syed Imam Ali Shah,
father of applicant and opponents Nos.2 & 3 and husband of opponent
No.1 died on 13.11.2018 leaving behind him, applicant and opponent
No.1 to 3 as his surviving legal heirs. The deceased during his lifetime
was maintaining an Account bearing No.0003029610027 in Allied Bank
Limited Branch Journalist Colony Hyderabad, such schedule is annexed
with the application. The Applicant approached the concerned bank for
providing bank statement and issuance of certificate of shown account
but to no avail.

In support of the case, the affidavits of two independent

witnesses namely Rasheed Kaimkhani S/o Muhammad Bashir Ahmed
and Prince Ali Shah S/o Syed Mushtaque Ali Shah are filed, who have
stated that there is no other legal heir of deceased except the
applicant and opponent Nos.1 to 3. Apart from this, affidavits of
opponent Nos.1 & 3 are also filed extending no objection in favour of
applicant, however, opponent No.3 is minor.

Heard learned counsel and perused the material available

on record.
 -2-
The applicant has prayed for succession certificate in
favour of applicant and opponents Nos.1 to 3 to receive the amount
from the bank as shown in the schedule annexed with application. The
notice was published in daily newspaper “IBRAT” dated 14.03.2019,
however, nobody has come forward to object to the prayer made by
the applicant. In addition to this, report was called from Mukhtiarkar
Taluka Qasimabad, Hyderabad but he failed to furnish the required
report, hence, Show Cause Notice was issued to him but he did not
furnish reply to it. In this regard, learned counsel for applicant
produced the original Heirship issued by said Mukhtiarkar Taluka
Qasimabad, which shows that on the application of applicant,
Mukhtiarkar Taluka Qasimabad, Hyderabad issued Heirship Certificate
dated 08.02.2019, showing the applicant and opponents Nos.1 to 3 as
surviving legal heirs of deceased. This is what which is reported by
SHO Police Station Naseem Nagar vide letter dated 25.03.2019 and the
Deputy Director NADRA Hyderabad Zone in his report dated
18.03.2019. In addition to this, the Manager Allied Bank Limited,
Journalist Colony Branch, Hyderabad in his report dated 22.03.2019
stated that the deceased was having Account No.0010003029610027.
He has also shown in his report the principle amount with mark-up as
Rs.982,946.00 as on 22.03.2019.

Record shows that there is no impediment nor any will has

been found. Therefore, for the aforesaid reasons, the application is
allowed. The Accountant District and Sessions Court, Hyderabad is
appointed as Commissioner with directions to withdraw amount of
Rs.982,946.00 from Allied Bank Limited, Journalist Colony Branch,
Hyderabad lying in Account No. No.0010003029610027 and disburse
the same to the heirs of deceased Dildar Ali Shah i.e. applicant and
opponents Nos.1 & 3 as per their respective shares according to
Muhammadan Law subject to furnishing P.R. Bond of the applicant in
equivalent amount shown in the balance of the deceased and such
report be submitted before this court within 30 days. However,
opponent No.2 is minor, therefore, her share be deposited in a
profitable Government scheme, which shall be withdrawn by her on
attaining the age of majority after proper verification and identification.
The Succession Application stands disposed of accordingly.

Pronounced in open Court.

Given under my hand and the seal of this Court on this 10 th day
of April, 2019.

(MUHAMMAD FAZIL BOHIO)

VIth Additional District Judge, Hyderabad
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
Civil Appeal No.154 of 2017
Mst. Baiyak Khan……….…………………………………………………………Appellant.

Versus
Mst. Farhat Banu & others……………………………………………………Opponents.
<><><><>
Mst. Aasima Parvaiz W/o Parvaiz Alam
Adult, Muslim by Caste Laghari Resident of
House No.11/3, PMC Staff Colony Karachi South
General Attorney of Respondents No.1 to 3
Imam Bux S/o Khuda Bux
Adult, Muslim by caste Laghari
Resident of Mureed Khan Laghari P.O
Masoo Bhurgiri Taluka & District Hyderabad Sindh
The Assistant Commissioner
Taluka (Rural) Hyderabad
The Mukhtiarkar Taluka Hyderabad
The Sub-Registrar City-ii Taluka Hyderabad
The Province of Sindh through Senior
Member, Board of Revenue Shahbaz Buiulding
Hyderabad…………………………………………………………………………
interveners.

Mr. Zahid Mallah, Advocate for appellant

Mr. Muhammad Ishtiaque, Advocate for respondents.

ORDER
10.04.2019
This order shall dispose of an application filed U/O 01 Rule
10 C.P.C. R/W Section 151 CPC by which the appellant has stated that
interveners shown above may be impleaded as respondent No.6 to 11
as they are necessary party. He has mainly stated in the application
that respondent No.1 to 3 during pendency of appeal sold out the land
to proposed respondents and this fact was concealed by them from the
Court. It is further stated that official interveners are necessary party
as they after joining are to be restrained not to issue any sale
certificate and execute any document. It is further stated that
appellant have also filed F.C.Suit No.1027 of 2017 for declaration,
cancellation and paermenent injunction which is pending before
learned 4th Senior Civil Judge, Hyderabad.

The learned counsel for otherside, in response to the

notice, filed statement that he shall argued the application directly.
 -2-

Learned counsel for appellant in his arguments while

reurging the grounds of above application, further conteded that
different during pendency of appeal respondent No.1 to 3 entered into
agreement to sale with proposed respondents in respect of suit land
and the proposed respondents No.1 also got registered FIR against the
respondent No.1 to 3 and further appellant feeling aggrieved, filed suit
for declaration and cancellation of the agreement to sale arrived at in
between the proposed respondent No.1 & 2 and the respondents No.1
to 3 which is pending adjudication before the Court of learned 4 th
Senior Civil Judge, Hyderabad. He also filing statement with copy of
above FIR. He finally contended that proposed respondents have
become necessary party, therefore, they may be joined as respondents
Nos.6 to 11.

On the other hand learned counsel for respondent No.1 to

3 argued that proposed respondents viz. DDO Revenue Hyderabad and
Mukhtiarkar Taluka Hyderabad are already party in the appeal who
were also party in the suit while Sub-Registrar sought to be impleaded
as respondent and proposed private respondents since were not party
before the trial Court, cannot be impleaded as respondents at this
stage. He further arguing that there was no restraining order and that
the respondent No.1 to 3 are having right being owner of the property
to sale out the same to anyone and further that if any sale of the land
during pendency by the owner is made, the same shall be subject to
judgment in the appeal. In support of his arguments he relied upon
case law reported as 2016 CLC 645 and 2010 CLC 407.

I have heard learned counsel for the parties and perused

the material available on record.

Admittedly the private proposed respondents including

that of the official respondent i.e. the Sub-Registrar City-II, Taluka
Hyderabad were not party in the suit Nos.650/2011, the leading suit
filed by Baiyak Khan against Farhat and F.C.Suit No.60/2012 filed by
Farhat Bano Vs. Baiyak Khan; thus they cannot be impleaded as
respondent at this stage, in the appeal. As regards the proposed
respondent Assistant Commissioner Taluka Hyderabad and
Mukhtiarkar Taluka Hyderabad they are already joined as respondent
No.4 & 5. So far sale of the suit land by the respondent No.1 to 3 to the
proposed private respondents, it is well established law that a
transaction made during pendency of litgation would not affect the
rights of any party to the litigation and
 -3-

further the same exercise shall be having no effect in law and if

someone opts to do so, he shall be responsible for such deeds.
Reliance in this regard is placed upon the case law reported as 1999
SCMR 2874.

In view of above discussion, the above application is

dismissed, however, with no order as to costs.

Pronounced in open Court.

Given under my hand and the seal of this Court on this 10 th day
of April, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE, HYDERABAD
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Document Code: E0A3176B920EE9481299C76A69167F94

IN THE COURT OF VITH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.

Sessions Case No.20 of 2019
The State
Versus
Amjad Ali S/o Yousuf Shar Baloch (in custody)………………Accused.
Crime No.311/2018
P.S A-Section Latifabad
U/s 23-A Sindh Arms Act

Mr. Attiq-ur-Rehman, learned ADPP for the State

Mr. Taimoor Hussain, learned counsel for accused

J U D G E M E N T
10-04-2019

The above named accused has been sent up to stand his

trial in the above case and crime by Police Station A-Section Latifabad
Hyderabad for the offence punishable U/s 23-A Sindh Arms Act, vide
challan admitted on 01.01.2019.
2. The very charge against the accused as disclosed in the
FIR is that on 18.12.2018 at about 2130 hours complainant arrested
the accused at Akbari graveyard in presence of mashirs PC Arif Khan
and PC Arsalan and found him in possession of unlicensed 30-Bore T.T
pistol having wordings on its right side barrel as CAL 30 MAUSER MADE
AS CHINA BY NORINCO containing 03 live bullets in its magazine under
such memo prepared and singed at spot.
3. As result of investigation, the investigation officer
submitted challan against both the accused before the area
Magistrate, who accepted the challan and sent up the case to the
Court of Honourable Sessions Judge, Hyderabad, on jurisdictional
ground and wherefrom the R & Ps received by this Court for its
disposal according to law.
4. In compliance of Section 265-C Cr.P.C. necessary case
papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.2, to which he did
not plead guilty and claimed to be tried vide his plea was recorded at
Ex.2/A.
5. Prosecution examined compalinant ASI Deen Muhammad
Malik as PW-1 at Ex.3, he produced memo of arrest and recovery at
Ex.3/A, FIR at Ex.3/B and departure and arrival entry at Ex.3/C, mashir
of the incident PC Arif Khan as PW-2 at Ex.4 and Investigation Officer
ASI Kashif Khan as PW-3 at Ex.5, he produced memo of site inspection
at Ex.5/A, expert report at Ex.5/B and letter for FSL at Ex.5/C.
Thereafter learned ADPP for the State closed the side in evidence vide
his statement at Ex.6.
 -2-

6. Statement U/s 342 Cr.P.C. of accused was recorded at

Ex.7, who denied all the allegations leveled against him by the
prosecution and claimed to be innocent, however, he did not opt to
examine himself on oath or produce witnesses in defence.
7. Learned D.D.P.P. for the State argued that prosecution
witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
8. Learned counsel for the accused, on the other hand,
argued that prosecution case is highly doubtful contending further that
there is no cogent evidence with the prosecution and that P.Ws
examined have contradicted to each other on material facts. He further
argued that the accused are innocent, he was arrested from Jhudo City,
then he was made half fry then involved in this false case, therefore,
they may be acquitted from the charge.
9. I have heard learned D.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-
(i) Whether on 18.12.2018 at 2130 hours at behind the street
of Akbari Shah graveyard, Unit No.8, Latifabad, Hyderabad
accused was arrested by police party headed by ASI Deen
Muhammad Malik of P.S A-Section Latifabad, Hyderabad
and he was found in possession of an unlicensed 30-Bore
T.T. pistol having wooden butt without number alongwith
magazine and three live bullets in presence of mashirs?

(ii) What offence if any, has been committed by the accused?.

My findings on points (I) and (II) are as under:-
FINDINGS

POINT NO.I Doubtful.

POINT NO.II Accused is acquitted U/s 265-H(i) Cr.P.C.

REASONS
POINT NO.I

10. The prosecution to prove its case examined 03 witnesses.

PW-1 is complainant of the case and PW-2 is mashir of arrest and
recovery. These two PWs in their respective statements did not
remained consistent to each other. First of all both these witnesses
remained silent as to whether property recovered from the accused
was sealed at spot or not. Secondly both these PWs deposed that
memo of arrest and recovery was prepared at spot but PW-2 to this
aspect of the matter, in his cross deposed contrary even to his own
examination in chief ‘It is fact that signature of mine shown on
document
-3-

Ex.3/A do differ from my actual signature. Voluntarily says; I put

signature on a document but that was some other one”. Further as to
this aspect of the matter compalinant deposed that he prepared memo
of arrest and recovery by keeping on the bonnet of mobile whereas
PW-2 deposed otherwise that which was prepared by him by sitting on
the rear seat of the mobile. In addition to this, both these PWs deposed
in the same breath that the pistol recovered from the accused was
without any number and wordings. However, they watching the left
side barrel of the pistol deposed that the wordings viz. CAL 30 MAUSER
MADE AS CHINA BY NORINCO are inscribed on it and further on the
upper side barrel of the pistol one consonant viz. M and figure of 20
are inscribed on it. Further both these PWs remained silent in their
examinations in chief that by which entry number and at which time
they left police station for patrol and arrived back after arrest and
recovery. Complainant, no doubt produced this document on record
but he in his cross admitted that he does not remember the numbers
of departure as well as arrival entries nor the time by which he
departed from the police station and arrived there. As regards the
evidence of PW-3, the investigation officer, he also given hopeless
statement. He in his chief claimed that he visited place of occurrence
and prepared such memo in presence of mashirs ASI Deen Muhammad
Malik and PC Arif but he in his cross watching this document deposed
that it does not bear signature of ASI Deen Muhammad Malik one of
the mashir of such document. He also admitted that he did not show
that by which entry of Roznamcha Register he left Police Station and
visited the occurrence nor such document he brought on record. In
view of the above discussion, I am of the considered view that
prosecution has failed to prove the point under discussion which is
answered in negative.
POINT NO.II
11. In view of the aforementioned appraisal of evidence, I am
of the humble view that the prosecution has miserably failed to bring
home the charge against the accused beyond any shadow of
reasonable doubt, hence, accused Amjad Ali S/o Yousuf Shar Baloch is
given benefit of doubt and stands acquitted of the charge U/s 265-H(i)
Cr.P.C. He is produced in custody, is remanded back to custody with
directions to Jail Superintendent to release him forthwith, if he is not
required in any other custody case/crime.
Pronounced in open Court this 10th of April 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
 -4-

CASE PROPERTY ORDER U/S 517 CR.P.C

The case property as shown in the charge sheet viz. one

30-Bore T.T. pistol alongwith magazine and three lives bullets be
deposited in District Armoury for its disposal according to law after
expiry of appeal period.
Dated this 10th of April, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
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Document Code: 9038CDAD1252459C894246A6F6165BD8
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
Succession Application No.36 of 2019
Amir Ali Khan S/o Nausher Ahmed
Muslim, Adult, R/o House No.264
Block-A Pathan Goth Unit No.07
Latifabad, Hyderabad…………………….………………………………………Applicant.

Versus

General Public at large…..………………………………………………………

Opponent.
Ms. Ambreen Mangi, advocate for the applicant

ORDER
10.04.2019
This order shall dispose of present succession application
filed U/s 372 of Succession Act, 1925 by the applicant in which it is
stated that deceased Nausher Ahmed S/o Muhammad Fazil Khan,
father of applicant died on 09.02.2016 leaving behind him, applicant,
Mst. Noor-un-Nisa, the first wife, Mst. Zareena Bibi, the second wife,
Aamir Ali Khan, the son from first wife and minor Atif Ali, the son from
second wife as his legal heir only and out of them, the first wife namely
Noor-un-Nisa has expired on 26.10.2018. The deceased during his
lifetime was maintaining an Account bearing No.001003878830014 in
Allied Bank Limited, Unit No.7, Latifabad Branch, Hyderabad and such
schedule is annexed with the application. The Applicant approached
the concerned bank for providing bank statement and issuance of
certificate of shown account but to no avail.

In support of the case, the affidavits of two independent

witnesses namely Meer Muhammad S/o Sikandar Ali and Sajjad Khan
S/o Muhammad Zahid are filed, who have stated that there is no other
legal heir of deceased except the applicant and aforesaid persons.

Heard learned counsel and perused the material available

on record.

The applicant has prayed for succession certificate in his

favour being only surviving legal heir of deceased as per law, to
receive the amount from the bank as shown in the schedule annexed
with application. The notice was published in daily newspaper
“UMMAT” Hyderabad dated 13.02.2019, however, nobody has come
forward to object to the prayer made by the applicant. In addition to
this, report was
 -2-

called from Mukhtiarkar concerned who vide his letter dated

05.04.2019 reported that deceased died leaving behind the applicant
as his legal heir. This is what which is reported by SHO Police Station A-
Section Latifabad Hyderabad vide letter dated 21.02.2019 and the
Deputy Director NADRA Hyderabad Zone in his report dated
14.02.2019. In addition to this, the Manager, Allied Bank Limited
Latifabad No.7 Branch, Hyderabad in his report dated 21.02.2019
stated that the deceased was having Account No.0010038728830014.
He has also shown in his report the principle amount with mark-up as
Rs.101,334.30 as on 20.02.2019. Further, the second wife of deceased
Mst. Zareena Bibi appeared alongwith her minor son and filed affidavit
in which she affirming the contents of application stated that she for
herself and on behalf of minor son has no objection if the shown
amount may be given to the applicant which is his exclusive sum.

Record shows that there is no impediment nor any will has

been found. Therefore, for the aforesaid reasons, the application is
allowed in favour of applicant with directions to withdraw amount of
Rs. 101,334.30/- from Allied Bank Limited Latifabad No.7 Branch,
Hyderabad lying in Account No. 0010038728830014 subject to
furnishing P.R. Bond of the applicant in equivalent amount shown in
the balance of the deceased within 30 days with the office of this
Court. The Succession Application stands disposed of accordingly.

Pronounced in open Court.

Given under my hand and the seal of this Court on this 10 th day
of April, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE, HYDERABAD
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Document Code: 24EA6EA03C280A05D1E6F78ADD4FC3DF
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
Succession Application No.39 of 2019
Mirza Wahid Baig S/o Late Sher Muhammad Baig
Adult, Muslim, R/o House No.629, Ward “E”
Do Qabar, Pucka Qila, Hyderabad Sindh……………………………………Applicant.

Versus

The General Public…..…..………………………………………………………Opponent.

Mr. Anwar Baig Mughal, advocate for the applicant

ORDER
12.04.2019
This order shall dispose of present succession application
filed U/s 372 of Succession Act, 1925 by the applicant in which it is
stated that deceased Sher Muhammad Baig S/o Muhammad Baig,
father of applicant died on 16.08.2017 leaving behind him as his legal
heir only. The deceased during his lifetime was maintaining Current
Account No.0008001010036612 in MCB Bank Limited, Gari Khata
Branch, Hyderabad and also invested Rs.25,000/- in the name of Banca
Insurance Facility and so also Rs.800,000/- in Arib Habib Security with
MCB Bank Limited, Gari Khata Branch, Hyderabad and such schedule is
annexed with the application. The Applicant approached the concerned
bank for providing bank statement and issuance of certificate of shown
account but to no avail.

In support of the case, the affidavits of two independent

witnesses namely Muhammad Anwar S/o Abdul Lateef and Abdul
Ghafoor S/o Abdul Shakoor are filed, who have stated that there is no
other legal heir of deceased except the applicant.

Heard learned counsel and perused the material available

on record.

The applicant has prayed for succession certificate in his

favour being only surviving legal heir of deceased as per law, to
receive the amount from the bank as shown in the schedule annexed
with application. The notice was published in daily newspaper
“UMMAT” Hyderabad dated 15.02.2019, however, nobody has come
forward to object to the prayer made by the applicant. In addition to
this, report was
 -2-

called from Mukhtiarkar concerned who vide his letter dated

08.04.2019 reported that deceased died leaving behind the applicant
as his legal heir. This is what which is reported by SHO Police Station
Fort Hyderabad vide letter dated 20.02.2019 and the Deputy Director
NADRA Hyderabad Zone in his report dated 14.02.2019. In addition to
this, the Manager, MCB Bank Limited, Gari Khata Branch, Hyderabad in
his report dated 26.03.2019 stated that the deceased was having
Account No.0008001010036612 with amount of Rs.45,023.00, he also
invested Rs.25,000/- as per Policy No.100198325, Rs.25,000/- as per
Policy No.100172942 invested in Bancha Insurance Policy and so also
Rs.798,023.33 in Arif Habib Secuirty.

Record shows that there is no impediment nor any will has

been found. Therefore, for the aforesaid reasons, the application is
allowed in favour of applicant with directions to withdraw amount of
Rs.45,023.00, from MCB Bank Limited, Gari Khata Branch, Hyderabad
lying in Account No. 0008001010036612, Rs.25,000/- as per Policy
No.100198325 and Rs.25,000/- as per Policy No.100172942 invested in
Bancha Insurance Policy and so also Rs.798,023.33 in Arif Habib
Secuirty subject to furnishing P.R. Bond of the applicant in equivalent
amount shown in the balance of the deceased within 30 days with the
office of this Court. The Succession Application stands disposed of
accordingly.

Pronounced in open Court.

Given under my hand and the seal of this Court on this 12 th day
of April, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE, HYDERABAD
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Document Code: A97B58FE54C8A6DBD2964FBC909DCEED
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.

Civil Appeal No.144 of 2016

Muhammad Hussain S/o Muhammad Hanif

Muslim, adult, R/o H.No.72, Plot No.3905
Punjabi Masjid, Paretabad, Hyderabad………..………………...

………………...Appellant.

VERSUS

1. The Province of Sindh through

Deputy Commissioner, Hyderabad
Offie situated at Shabaz Building
Thanki Sarak, Hyderabad

2. Sub Registrar City

Office at Thandi Sarak
Near Rani Bagh, Hyderabad

3. The Mukhtiarkar City

Taluka City, Hyderabad

4. M/s Shelter Construction Company

Through its Marketing Manager
Feroze Ali Soomani, Office No.8
Baldia Shopping Centre, Station Road

Hyderabad………………………………………………………………………………

…….Respondents.

Mr. Farhad Ali Abro, Advocate for the appellant.

Mr. Waseem-ul-Haq, DDA for respondents Nos.1 to 3
Mr. Muhammad Jabbar Shaikh, Advocate for respondent No.4

J U D G M E N T.
15-04-2019.

This Civil Appeal is directed against the judgment and

decree dated 27.05.2016 passed by learned VIth Senior Civil Judge,
Hyderabad, in F.C.Suit No.106 of 2015 (Muhammad Hussain Vs.
Province of Sindh & others), whereby the learned trial Court dismissed
the suit.
2. Brief facts of the case are that the appellant/plaintiff
Muhammad Hussain filed above suit for Specific Performance of
Contract, Possession, Mesne Profit and Permanent Injunction stating
that on 14.06.2006 plaintiff got booked a suit flat bearing No.4
admeasuring 859 Sq yards first floor, Shelter Housing and Construction
Company, Station Road, Hyderabad against total sale consideration of
Rs.756,920/- which was paid by the plaintiff to the defendant No.4 and
it was agreed between plaintiff and defendant No.4 that possession of
the suit flat will be handed over to the plaintiff within 16 months from
the date of booking. All the terms and conditions of the sale agreement
were mutually agreed upon by both the parties and signed in presence
of witnesses. It was
 -2-
also agreed that in case of failure of handing over the possession of
the suit flat to the plaintiff, the defendant No.4 was bound to pay its
monthly rent as per market value. After expiry of 16 months, the
plaintiff approached to the defendant No.4 for execution of sale deed
and handing over the possession of suit flat but he avoided and
thereby violated the terms and conditions of the contract. According to
palintff, he came to know that defendant No.4 was going to sale the
suit flat to another person with the help of defendant No.1 though the
plaintiff was its bona fide purchaser. The defendant No.4 committed
cheating and fraud with the plaintiff so also caused mental torture and
loss to him as for eight years, a huge amount has been
usurped/blocked by the defendant No.4 and that, had the plaintiff
invested the said amount anywhere else, he would have earned
handsome benefits. Thereafter on 23.01.2015 plaintiff sent legal notice
to the defendant No.4 but he did not reply. The defendant No.4 is
threatening the plaintiff of alienating, transferring the suit flat to some
other persons with the help of defendant No.1 to 3, hence, plaintiff
filed the present suit with the following prayers;-
(a) This Court may be pleased to direct the defendant No.4 to
execute and get registered sale deed in favour of plaintiff
and hand over the peaceful physical possession of the suit
property i.e. No.4 admeasuring 859 square feet, first floor,
Shelter Housing and Construction Company, Station Road,
Hyderabad before Sub-Registrar City Hyderabad OR in case
of failure of the defendant No.4 to do so, the Nazir or any
other officer of the Court may be directed to execute and
he registered sale deed before Sub-Registrar City
Hyderabad on behalf of the defendant No.4 in favour of the
plaintiff.
(b) This Court may be pleased to direct the defendant No.4 to
pay the mesne profit/monthly rent of sum property i.ee.
No.4, admeasuring 859 sq feet first floor, Shelter Housing
and Construction Company, Station Road, Hyderabad as
per market value from the date of expiry of 16 months
from the date of booking i.e. 14.06.2006 till the finalization
of transaction of the suit property.
(c) This Court may be pleased to grant permanent injunction
against the defendants, restraining them from further
selling out, alienating and transferring or encumbering the
suit property No.4, admeasuring 859 sq feet, first floor
Shelter Housing and Construction Company Station Road
Hyderabad in any manner themselves or through their
men, employees, servants, relatives, agents directly or
indirectly till decision of the suit.
(d) Cost of the suit be borne by the defendants.
(e) Any other relief(s), which this Honourable Court may deem
fit and proper be awarded to the plaintiffs.
3. After institution of the suit, notices were issued to
defendants but they failed to file written statements, hence, service
was held good against them and they were debarred from filing their
written statements.
 -3-

4. In order to prove its case, plaintiff filed affidavit in exparte

proof, he produced original payment receipt at Ex.26/A, original
agreement dated 07.06.2006 at Ex.26/B and original nomination form
in respect of suit property at Ex.26/C respectively.
5. After hearing the plaintiff and his counsel, learned trial
Court vide impugned judgment and decree dated 27.05.2016
dismissed the suit of plaintiff/ appellant.
6. The learned counsel for appellant argued that there is
delay of six days in filing appeal for which sufficient explanation is
given in the affidavit to application filed under Section 5 of Limitation
Act, 1908. He arguing the merits of the appeal, contended that
document Ex.26/B is sale agreement executed in between the
appellant and respondent No.4, the appellant following terms and
conditions of the contract, paid entire amount of sale vide receipt
Ex.26/A. He further argued that the contract of sale was not providing
date for its performance, therefore, the plaintiff filed suit when they
refused to perform the part of their contract. He argued that the
wording written in the contract that the company was not to handover
the possession of the flat to the appellant within 16 months but
thereafter it had to pay rent and since respondent No.4 failed to pay
rent or handover possession of suit flat, legal notice was issued and
sent by the appellant to respondent No.4 calling upon him to perform
his part of contract. He argued that the delay of six days in filing
appeal may be condoned, and appeal be allowed as prayed for after
setting aside the judgment and decree.
7. On the other hand learned counsel for respondent No.4, at
the very outset, argued that the very appeal filed by the appellant is
not maintainable because the same has been filed after the time
provided to the appellant. The explanation given behind such delay
that the appellant was not having knowledge as his earlier counsel did
not inform him the fate of the suit, is devoid of substance as same
learned counsel, who was defending the appellant before trial Court, is
arguing today before this Court. He next contended that very
agreement Ex.26/B is false document. This document nowhere
mentions the ingredients of contract and if it is presumed that the
company did not handover the possession of flat within 16 months, it
had to pay rent and if the rent was not paid, the plaintiff was to file
rent case rather suit for specific performance of contract. He lastly
argued that appeal may be dismissed and judgment passed by the trial
Court be upheld. He relied upon the case law reported as 2002 CLC
918 Lahore and PLD 2003 Peshawar 46.
 -4-

8. Learned DDA for official respondents Nos.1 to 3, argued

that appellant failed to examine two attesting witnesses of document
Ex.26/B as required by Article 79 of Qanoon-e-Shahdat Order, 1984. He
further argued that the proprietor/owner of the company was not
joined as one of the defendants because the respondent No.4 was
representing the company being agent of its principal and certainly the
suit for the acts of the agent on behalf of the principal was to be filed
against the principal and not against the agent. He finally argued that
not only suit filed by the appellant/plaintiff was time barred but the
appeal filed before this Court is also filed with delay of certain days
which is not explained in the affidavit to application filed for condoning
such delay, therefore, the appeal filed may be dismissed and judgment
passed by trial Court may be upheld.
9. I have heard learned counsel for the parties and gone
through the material available on record including the case laws relied
upon by learned counsel for respondent.
Now point for determination of the lis, are as under:

POINTS

(i) Whether impugned judgment and decree 27.05.2016

respectively require any interference of this Court?.

(ii) What should the judgment be?

My findings on points (I) and (II) are as under:-

FINDINGS
POINT NO.I In negative.
POINT NO.II Appeal dismissed.

REASONS
POINT NO.I

10. It is matter of record that the above appeal was filed after
the period of Limitation, therefore, an application U/S 5 of the
Limitation Act, 1908 having supported with affidavit was also filed,
which was ordered to be heard and decided along with the main
appeal. Admittedly, the learned trial Court has mainly based its
findings in the judgment and decree assailed through above appeal on
the grounds that the agreement to sale arrived at in between the
parties was one which was lacking ingredients of contract to sale and
secondly that the suit filed by the appellant/plaintiff was barred by law.
At Para Nos.2,3 and 4 of the plaint, it is stated that on 14.06.2006
respondent/defendant No.4 booked a flat No.4 admeasuring 859 Sq ft,
first Floor, Shelter Housing Company, Station Road, Hyderabad to
appellant against
-5-
the sale consideration of Rs.756,920/- which was paid up by the
appellant/plaintiff and that it was agreed upon that
respondent/defendant No.4 shall handover the possession to the
appellant/plaintiff within 16 months and after expiry of these 16
months, if respondent/defendant No.4 fails to handover the possession
of the suit flat to the appellant/plaintif, the respondent/defendant No.4
shall pay rent as per market rate to the appellant/plaintiff. This is what
which was deposed by the plaintiff and his same version went
unrebutted as the defendants did not contest the matter. The plaintiff
also produced on record payment receipt at Ex.26/A and agreement to
sale at Ex.26/B. A minute look at the alllaged agreement to sale
Ex.26/B transpires that it was executed on 14.06.2006 and it also
provides a condition that the company shall not handover the
possession of flat to the purchaser within 16 months, the company
shall pay the rent according to rule to the purchaser. This document
bears signatures of marketing manager on behalf of
respondent/defendant No.4, two witnesses and the vendee. Admittedly
the suit was filed by the appellant/plaintiff on 04.02.2015 after the
period of about 07 years and 04 months after those 16 months. If after
expiry of 16 months from the date of execution of sale agreement, the
respondent/ defendant No.4 did not pay the rent of suit flat to the
appellant/plaintiff, he was to file suit within 03 years from those 16
months because time was essence of contract as provided under
Article 113 of the Limitation Act 1908 but he failed to do and if it is so;
the very suit filed by the appellant was barred by law. Not only the suit
was filed with long standing delay but the appeal filed against the
judgment and decree of the learned trial Court, was also filed with
delay of about 06 days as the judgment and decree were passed on
27.05.2016 while the appellant/plaintiff applied for copies on
28.06.2016, after expiry of appeal period. Even thereafter copies
supplied to the appellant on 29.06.2016 while appeal was filed on
04.07.2016 and the explanation behind such delay given in the
supporting affidavit of the application filed U/S. 5 of the Limitation Act,
1908 is that the appellant/plaintiff was not having knowledge as his
previous counsel did not inform him about fate of the suit. A look at the
judgment of the trial Court shows that the same counsel, who has
argued out the present appeal, was representing the appellant/plaintiff
before the trial Court, therefore, to say that his earlier counsel did not
intimate him about the fate of the proceedings, the like explanation is
of no avail to him. Further, it is the case of the plaintiff that he
purchased the suit flat from respondent No.4 by a written agreement
to sale for which he also paid up the entire sale money but he failed to
examine the attesting witnesses of the allaged agreement to sale as
provided U/S. 79 of the Qanun-e-Shahdat Order 1984. In this regard, it
has been held in the case law reported as 2017 YLR Note 33 [Lahore]
that the
 -6-

marginal witnesses of agreement to sale were not produced in the

Court and if it is so; the alleged agreement to sale was inadmissible in
evidence. Not only this, but he also failed to examine the official
witnesses of the custodian department to see as to whether the vendor
was owner of the suit flat or not. Furthermore, the suit filed was also
bad for non-joinder of necessary parties as the respondent No.4
allegedly acted as Marketing Manager on behalf of his principal,
therefore, the principal/owner of the company of respondent No.4 was
necessary party but he was not joined as one of the respondents.
11. In view of above discussion, I am of the humble opinion
that the judgment and decree passed by learned trial Court do not call
for interference by this Court. I therefore, answer point No.1 in the
negative.

POINT NO.II
11. In the light of the discussion aforesaid, the impugned
judgment and decree passed by learned trial Court do not call for
interference by this Court. Accordingly, the instant appeal is dismissed
and impugned judgment and decree dated 27.05.2016 are maintained.
So far sale amount allegedly paid by the appellant vide document
Ex.26/A in respect of the alleged agreement to sale Ex.26/B, the
appellant may exhaust the remedy as provided under Section 65 of the
Contract Act, 1872, if law permits him and if he so desires.The parties
to bear their own costs. Let the office to prepare such decree.
Announced in open court,
Given under my hand & seal of this Court, this the 15th day of April, 2019

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
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Document Code: 3FCB205EF4A62D411DE1CBF2EBA3E6E1
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
Succession Application No.104 of 2019
Nadeem S/o Late Aftab Ahmed Khan
Muslim, Adult, R/o House No.16
Muhallah Al-Waheed Colony Hali Road
Hyderabad………………………………………………………...
………………….Applicant

Versus

1. Mehtab Ahmed Khan S/o Late Aftab Ahmed Khan

2. Aijaz Ahmed Khan S/o Late Aftab Ahmed Khan
3. Shakeel Ahmed Khan S/o Late Aftab Ahmed Khan
4. Mst. Fahmeeda Khatoon D/o Late Aftab Ahmed Khan
5. Mst. Arshee D/o Late Aftab Ahmed Khan
All, Muslim, Adult, R/o House No.16
Muhallah Al-Waheed Colony Hali Road
Hyderabad
6. General Public at Large Hyderabad………………………………Opponents.
Mr. Zaheer Ahmed Arain, advocate for the applicant

ORDER
16.04.2019
This order shall dispose of present succession application
filed U/s 372 of Succession Act, 1925 by the applicant in which it is
stated that Mst. Kulsoom Begum Wd/o Late Aftab Ahmed Khan, mother
of applicant, opponents Nos.1 to 5 died on 21.11.2018 leaving behind
her, applicant and opponent No.1 to 5 as her surviving legal heirs. The
deceased during her lifetime was maintaining Accounts bearing
No.0010020237920017 in Allied Bank Limited SITE Branch, Hyderabad,
such schedule is annexed with the application. The applicant
approached the concerned bank for providing bank statement and
issuance of certificates of shown account but to no avail.

In support of the case, the affidavits of two independent

witnesses namely Muhammad Saleem Khan S/o Aziz Ahmed Khan and
Danish Mehmood S/o Mehmood Khan are filed, who have stated that
there is no other legal heir of deceased except the applicant and
opponent Nos.1 to 5. Apart from this, affidavits of opponent Nos.1 to 5
are also filed extending no objection in favour of applicant.

Heard learned counsel and perused the material available

on record.

The applicant has prayed for succession certificate in

favour of applicant and opponents Nos.1 to 5 to receive the amount
from the above bank as shown in the schedule annexed with
application. The
 -2-

notice was published in daily newspaper “QAUMI” Hyderabad dated

16.03.2019, however, nobody has come forward to object to the prayer
made by the applicant. In addition to this, report was called from
Mukhtiarkar concerned who vide his letter dated 02.04.2019 reported
that deceased died leaving behind the applicant and opponent No.1 to
5 as her legal heirs. This is what which is reported by SHO Police
Station Hali Road, Hyderabad vide letter dated 13.03.2019 whereas
Deputy Director NADRA Hyderabad Zone in his report dated
21.03.2019 reported that no any family members’ linkage exists in
new CNIC Database NADRA, HQ Islamabad. However, affidavits of no
objections having biometric from the Identification Branch of District
Hyderabad parties show their biometric record which indicates that
they have valid CNIC. In addition to this, the Manager Allied Bank
Limited, SITE Branch, Hyderabad in his report dated 26.03.2019 stated
that the deceased was having Account No.0010020237920017 with
amount of Rs.117,867.19 as on 25.03.2019.

Record shows that there is no impediment nor any will has

been found. Therefore, for the aforesaid reasons, the application is
allowed. The Accountant District and Sessions Court, Hyderabad is
appointed as Commissioner with directions to withdraw amount of
Rs.117,867.19 lying in Account No.0010020237920017 from MCB
Allied Bank Limited, SITE Branch, Hyderabad and disburse the same to
the heirs of deceased Mst. Kulsoom Begum i.e. applicant and
opponents Nos.1 to 5 as per their respective shares according to
Muhammadan Law subject to furnishing P.R. Bond of the applicant in
equivalent amount shown in the balance of the deceased and such
report be submitted before this court within 30 days. The Succession
Application stands disposed of accordingly.

Pronounced in open Court.

Given under my hand and the seal of this Court on this 16 th day
of April, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE, HYDERABAD
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Document Code: 3B0D008529B75011C268730CAA79E263
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
Succession Application No.110 of 2019
Mst. Hina Kanwal W/o Zulfiqar Ali
Muslim, Adult, by caste Shaikh
Originally R/o House No.1469-A
Paro Gulshan-e-Hadeed, Phase-I, Malir Karachi
Now at present House No.107,
Mohallah Purani Wehdat Colony
Taluka Qasimabad District Hyderabad…………………...………………….Applicant

Versus

1. Mst. Ambar Ghazal D/o Abdul Nabi

2. Mst. Iqra Nabi D/o Abdul Nabi
3. Mst. Aziz Bano D/o Rasool Bux
4. Mst. Sabeen Shaikh D/o Rasool Bux
All Adults, Muslims, R/o at present
House No.107, Mohllah Purani Wehdat Colony
Taluka Qasimabad District Hyderabad
5. General Public…………………………………………………………Opponents.
Mr. Shahzad Ahmed Narejo, advocate for the applicant

ORDER
13.04.2019
This order shall dispose of present succession application
filed U/s 372 of Succession Act, 1925 by the applicant in which it is
stated that deceased Mst. Nasreen D/o Rasool Bux Shaikh died on
05.08.2018 leaving behind applicant, opponents Nos.1 & 2 as her
daughters, opponent No.3 as her mother and opponent No.4 as her
sister all being her surviving legal heirs. The deceased was
government employee of Education Department and she during her
lifetime was maintaining Accounts bearing No.4004422617 with
blanace of Rs.1,35,512.50/- in National Bank of Pakistan, WAPDA
Colony Branch, Hyderabad, such schedule is annexed with the
application. The applicant approached the concerned bank for
providing bank statement and issuance of certificates of shown
account but to no avail.

In support of the case, the affidavits of two independent

witnesses namely Mansoor Ali S/o Abdul Haque Lashari and Shayan Ali
Shaikh S/o Aslam Shaikh are filed, who have stated that there is no
other legal heir of deceased except the applicant and opponent Nos.1
to 4. Apart from this, affidavits of opponent Nos.1 to 4 are also filed
extending no objection in favour of applicant.

Heard learned counsel and perused the material available

on record.
 -2-

The applicant has prayed for succession certificate in

favour of applicant and opponents Nos.1 to 4 to receive the amount
from the above bank as shown in the schedule annexed with
application. The notice was published in daily newspaper “IBRAT”
dated 19.03.2019, however, nobody has come forward to object to the
prayer made by the applicant. In addition to this, report was called
from Mukhtiarkar concerned who vide his letter dated 05.04.2019
reported that deceased died leaving behind the applicant and
opponent No.1 to 4 as his legal heirs. However, SHO Police Station
Qasimabad, Hyderabad reported that the parties are residing within
the jurisdiction of Police Station Bhitai Nagar, Hyderabad, therefore,
report may be called from SHO Bhitai Nagar, Hyderabad whereas
Deputy Director NADRA Hyderabad Zone in his report dated
21.03.2019 has shown applicant and opponents Nos1 & 2 as family
inmates of deceased. In addition to this, the Manager National Bank of
Pakistan, WAPDA Colony Branch, Hyderabad in his report dated
21.03.2019 stated that the deceased was having Account bearing
No.4004422517 (1545-4) with amount of Rs.135,505/- as on
21.03.2019.

Record shows that there is no impediment nor any will has

been found. Therefore, for the aforesaid reasons, the application is
allowed. The Accountant District and Sessions Court, Hyderabad is
appointed as Commissioner with directions to withdraw amount of Rs.
135,505/- lying in Account No.4004422517 (1545-4) from National
Bank of Pakistan, WAPDA Colony Branch, Hyderabad and disburse the
same to the heirs of deceased Nasreen Shaikh i.e. applicant and
opponents Nos.1 & 4 as per their respective shares according to
Muhammadan Law subject to furnishing P.R. Bond of the applicant in
equivalent amount shown in the balance of the deceased and such
report be submitted before this court within 30 days. The Succession
Application stands disposed of accordingly.

Pronounced in open Court.

Given under my hand and the seal of this Court on this 13 th day
of April, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE, HYDERABAD
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41398BC14F8E18B5D76CFFAD1EE15590

IN THE COURT OF VITH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.

Sessions Case No.131 of 2019
The State
Versus
Hyder Ali S/o Nasir Shah(in custody)………………………………………Accused.
Crime No.16/2019
P.S Cantonment Hyderabad
U/s 23-A Sindh Arms Act

Mr. Mujeeb Qadir Memon, learned ADPP for the State

Mr. Shahzad Ahmed Narejo, learned counsel for accused

J U D G E M E N T
13-04-2019

The above named accused has been sent up to stand his

trial in the above case and crime by Police Station Cantonment
Hyderabad for the offence punishable U/s 23-A Sindh Arms Act, vide
challan admitted on 09.02.2019.
2. The very charge against the accused as disclosed in the
FIR is that on 24.01.2019 at 0045 hours complainant arrested the
accused at link road of old D.C. House, Hyderabad in presence of
mashirs PC Khadim and HC Intizar and found him in possession of
unlicensed 12-Bore red colour Desi pistol alongwith three Cartoos
under such memo prepared and singed at spot. Thereafter case
property was sealed and then accused and property were brought at
Police Station where instant FIR was registered.
3. As result of investigation, the investigation officer
submitted challan against both the accused before the area
Magistrate, who accepted the challan and sent up the case to the
Court of Honourable Sessions Judge, Hyderabad, on jurisdictional
ground and wherefrom the R & Ps received by this Court for its
disposal according to law.
4. In compliance of Section 265-C Cr.P.C. necessary case
papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.2, to which he did
not plead guilty and claimed to be tried vide his plea was recorded at
Ex.2/A.
5. Prosecution examined complainant ASI Riaz Ahmed Baloch
as PW-1 at Ex.3, he produced memo of arrest and recovery at Ex.3/A,
FIR at Ex.3/B and departure and arrival entry at Ex.3/C, mashir of the
incident HC Intizar Ahmed as PW-2 at Ex.4 and Investigation Officer ASI
Muhammad Urs as PW-3 at
 -2-

Ex.5, he produced memo of site inspection at Ex.5/A and expert report

at Ex.5/B. Thereafter learned ADPP for the State closed the side in
evidence vide his statement at Ex.06.
6. Statement U/s 342 Cr.P.C. of accused was recorded at
Ex.07, who denied all the allegations leveled against him by the
prosecution and claimed to be innocent, however, he did not opt to
examine himself on oath or produce witnesses in defence.
7. Learned D.D.P.P. for the State argued that prosecution
witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
8. Learned counsel for the accused, on the other hand,
argued that prosecution case is highly doubtful contending further that
there is no cogent evidence with the prosecution and that P.Ws
examined have contradicted to each other on material facts. He further
argued that the accused are innocent, he was arrested from Jhudo City,
then he was made half fry then involved in this false case, therefore,
they may be acquitted from the charge.
9. I have heard learned D.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-
(i) Whether on 24.01.2019 at 0045 hours at link road of old
DC House, Hyderabad, accused was arrested by police
party headed by ASI Riaz Ahmed Baloch of P.S
Cantonment, Hyderabad and was found in possession of an
unlicensed 12-Bore country made pistol alongwith three
live cartoos in presence of mashirs?

(ii) What offence if any, has been committed by the accused?.

My findings on points (I) and (II) are as under:-
FINDINGS

POINT NO.I Doubtful.

POINT NO.II Accused is acquitted U/s 265-H(i) Cr.P.C.

REASONS
POINT NO.I

10. To prove its case, prosecution examined 03 witnesses out

of which PW-1 and 02 are examined as star witnesses of arrest and
recovery. First of all both PWs those in their respective chiefs remained
silent as to whether property recovered from the accused was sealed
at the spot or not. PW-1, no doubt, produced departure as well as
arrival entries at Ex.3/C but he in his chief remained silent as to by
which entry of Roznamcha Register and at which time he left Police
Station and by which entry and time he arrived back at
-3-
Police Station. This is what which he admitted in his cross. To this
aspect of the matter, the entry of arrival back at Police Station shows
its number as 47 whereas compalinant in his cross claimed that he
arrived back at Police Station vide entry No.46 and further watching
this document produced at Ex.3/C deposed that this document does
not show the existence of entry No.46. Both these PWs also admitted
that they did not prepare the sketch of pistol. PW-1, however, in his
cross deposed that cartridges recovered were of 12 number whereas
he watching cartridges produced before this Court deposed that those
are of 04 numbers. This PW, however, deposed that he does not know
that what was description of pistol deposing further that the pistol was
of black colour and it was in fit condition having 02 wooden supports to
its Butt and the same were not wrapped with any kind of tape solution.
However, he watching the pistol deposed that its Butt is rapped with
black tape solution and such fact he has not deposed in his chief. PW-1
deposed that the pistol was recovered from the left side fold of his
Shalwar whereas PW-2 deposed otherwise that it was recovered from
his right side fold of Shalwar. PW-1 in his chief deposed that they on
watching the accused alighted from the mobile followed and
apprehended him whereas PW-2 deposed otherwise that they watching
the accused boarded on the mobile, followed him and apprehended. As
regards the evidence of PW-3, he in his chief claimed that he visited
the place of incident and prepared such memo Ex.5, however, he in his
cross admitted that he did not produce the entry of Roznamcha
Register by which he left and visited the place of Wardat. To this
aspect of the matter, PW-2 who is shown as signatory of site inspection
memo prepared by PW-3, deposed that it does not bear his signature.
According to PW-1, the hands of the accused were tied with towel
whereas PW-2 deposed otherwise that the hands of the accused were
neither handcuffed nor tied with anything. PW-3 claimed that he sent
the property to the expert on 26.01.2019 through special messanger
PC Saadat Ali but he watching expert report Ex.5/B deposed that it was
received by the expert on 04.02.2019 after delay of about 11 days. He
also admitted that he has not explained such delay. He further
deposed that he did not deseal the property and admitted that he was
not having knowledge that what kind of weapon was inside the parcel.
In view of the above discussion, I am of the considered view that
prosecution has failed to prove the point under discussion which is
answered in negative.
POINT NO.II
11. In view of the aforementioned appraisal of evidence, I am
of the humble view that the prosecution has miserably failed to bring
home the charge against the accused beyond any shadow of
reasonable doubt, hence,
 -4-

accused Hyder Ali S/o Nasir Shah is given benefit of doubt and stands
acquitted of the charge U/s 265-H(i) Cr.P.C. He is produced in custody,
is remanded back to custody with directions to Jail Superintendent to
release him forthwith, if he is not required in any other custody
case/crime.
Pronounced in open Court this 13th of April 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
CASE PROPERTY ORDER U/S 517 CR.P.C

The case property as shown in the charge sheet viz. one

120-Bore red colour Desi Pistol alongwith magazine three cartridges be
deposited in District Armoury for its disposal according to law after
expiry of appeal period.
Dated this 13th of April, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
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36A96FA69A09F6FDE46598D2EB5C5D6F
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
Succession Application No.112 of 2019
Mst. Shamshad Memon Wd/o Maqbool Ahmed Memn
Muslim, adult, R/o Flat No.33, Bahadur Architect
Near Shahab Cinema, Timber Market, Hyderabad…...………………….Applicant
Versus
1. Mst. Shahzeen Maqbool D/o Maqbool Ahmed Memon
2. Mst. Farheen Maqbool D/o Maqbool Ahmed Memon
Both Muslims, adults, R/o Flat No.33, Bahadur Architect
Near Shahab Cinema, Timber Market, Hyderabad
3. Mushtaque Ahmed Memon S/o Muhammad Yousuf Memon
Muslim, adult, R/o House No.106/C, Block “C”
Unit No.6, Latifabad Hyderabad
4. Shakeel Ahmed Memon S/o Muhammad Yousuf Memon
Muslim, adult, R/o House No.C-14/42
Muhallah Muhammad Ali, Lohar Ghitti
Khair Shah Jo Pir, Hyderabad
5. Roshan Ara Memon D/o Muhammad Yousuf Memon
W/o Allah Bux Memon, Muslim, adult,
R/o House No.C-12/62-A, Paro Willayat Ali Shah Jo Pir
PO Market, Hyderabad
6. Mst. Khursheed Begum D/o Muhammad Yousuf Memon
W/o Allahdino, Muslim, adult, R/o House No.24-12/B
Sathi Paro, Shahdadpur District Sanghar
7. Mst. Aneela D/o Muhammad Yousuf Memon
W/o Muhammad Afzal, Muslim, adult,
R/o House No.222-A, Muhallah Thomasabad
Mirpurkhas
8. General Public at Large……………………………………………………Opponents.
Mr. Muhammad Imran Arain, advocate for the applicant

ORDER
29.05.2019
This order shall dispose of present succession application
filed U/s 372 of Succession Act, 1925 by the applicant in which it is
stated that deceased Maqbool Ahmed Memon S/o Muhammad Yousuf
Memon, died on 18.07.2018 and left applicant as widow, opponents
Nos.1 & 2 as his daughters and opponents Nos.3 to 7 as her brothers
and sisters and they are his surviving legal heirs. The deceased during
his lifetime was having Locker No.1017 at Faysal Bank Limited, Saddar
Branch, Hyderabad, such schedule is annexed with the application. The
applicant approached the concerned bank for opening the locker but to
no avail.

In support of the case, the affidavits of two independent

witnesses Shoukat Ali S/o Shamsuddin and Haris Ahmed Memon S/o
Mushtaque Ahmed Memon are filed, who have stated that there is no
other legal heir of deceased except the applicant and opponent Nos.1
to 7. Apart from this, affidavits of opponent Nos.1 to 7 are also filed
extending no objection in favour of applicant.

-2-

Heard learned counsel and perused the material available

on record.

The applicant has prayed for succession certificate in

favour of applicant and opponents Nos.1 to 7 in respect of assets lying
in Locker No.1017 maintained at Faysal Bank Limited Saddar Branch,
Hyderabad as shown in the schedule annexed with application. The
notice was published in daily newspaper “IBRAT” dated 06.04.2019,
however, nobody has come forward to object to the prayer made by
the applicant. In addition to this, report was called from Mukhtiarkar
concerned who vide his letter dated 09.04.2019 reported that
deceased died leaving behind the applicant and opponent No.1 to 7 as
his legal heirs. This is what which is reported by SHO Police Station
Market, Hyderabad vide letter dated 13.04.2019 whereas Deputy
Director NADRA Hyderabad Zone in his report dated 04.04.2019
reported that applicant and opponents Nos.1 & 2 are only legal heirs of
deceased. In addition to this, the Manager Faysalbank reported that
deceased was having joint Account No.01381500003494 with amount
of zero and so also joint locker No.1017.

Record shows that there is no impediment nor any will has

been found. Therefore, for the aforesaid reasons, the application is
allowed. The applicant is authorized to collect the collateral/property
by opening the joint locker No.1017 from the concerned Bank as per
Bank policy, in presence of legal heirs, make inventory of the articles
and submit such report before this Court within fifteen days.
Succession application stands disposed of accordingly.

Pronounced in open Court.

Given under my hand and the seal of this Court on this 29 th day
of May, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE, HYDERABAD
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64DA81FB6F8E794BFDE86AF8225059AB
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
Succession Application No.117 of 2019
Salamat Masih S/o Nawab Masih
Chrisitan, Adult by caste Masih
R/o St. Joseph Colony House No.404
Muhalla Unit No.10 Taluka Latifabad Hyderabad
Hyderabad District Hyderabad……………………………...………………….Applicant

Versus

1. Aslam Masih S/o Salamat Masih

2. Maqsood S/o Salamat Masih
3. Dula Bhatti S/o Salamat Masih
4. Mst. Suraiya D/o Salamat Masih
5. Robin Ghosh S/o Salamat Masih
6. Ashraf Masih Bhatti S/o Salamat Masih
7. Riaz Masih S/o Salamat Masih
8. Nasir Masih Bhatti S/o Salamat Masih
All Christian, Adult, R/o St. Joseph Colony
House No.404, Muhalla Unit No.10
Taluka Latifaba Hyderabad
9. Manager
National Bank of Pakistan 0038
Municipal Corporation Branch, Hyderbad
Station Road Hyderabad
10. General Public at Large..……………..………………………………Opponents.

Mr. Sooba Bhatti, advocate for the applicant

ORDER
13.04.2019
This order shall dispose of present succession application
filed U/s 372 of Succession Act, 1925 by the applicant in which it is
stated that deceased Mst. Zubeda Bibi W/o Salamat Masih, widow of
applicant and mother opponents Nos.1 to 8 died on 03.03.2018 leaving
behind her, applicant and opponent No.1 to 8 as her surviving legal
heirs. The deceased during her lifetime was maintaining Accounts
bearing No.0038003104528073 in National Bank of Pakistan, Municipal
Corporaton Branch, Hyderabad, such schedule is annexed with the
application. The applicant approached the concerned bank for
providing bank statement and issuance of certificate of shown account
but to no avail.

In support of the case, the affidavits of two independent

witnesses namely Hamza S/o Jarad Masih and Nikson Masih S/o Akram
Masih are filed, who have stated that there is no other legal heir of
deceased except the applicant and opponent Nos.1 to 8. Apart from
this, affidavits of opponent Nos.1 to 8 are also filed extending no
objection in favour of applicant.
 -2-

Heard learned counsel and perused the material available

on record.

The applicant has prayed for succession certificate in

favour of applicant and opponents Nos.1 to 8 to receive the amount
from the above bank as shown in the schedule annexed with
application. The notice was published in daily newspaper “QAUMI”
dated 27.03.2019, however, nobody has come forward to object to the
prayer made by the applicant. In addition to this, report was called
from Mukhtiarkar concerned who vide his letter dated 02.04.2019
reported that deceased died leaving behind the applicant and
opponent No.1 to 8 as her legal heirs. This is what which is reported by
SHO Police Station B-Section Latifabad, Hyderabad vide letter dated
10.04.2019 whereas Deputy Director NADRA Hyderabad Zone in his
report dated 04.04.2019 reported that applicant and opponents Nos.1,
3 to 8 are legal heirs of deceased. As regards opponent No.2, who is
not shown as legal heirs of deceased by NADRA but his affidavit of no
objection having made its biometric from the Identification Branch of
District Hyderabad shows his biometric attendance which indicates
that he has valid CNIC and so also legal heir of deceased. In addition
to this, the Manager National Bank of Pakistan, Municipal Corporation
Branch, Hyderabad in his report dated 13.04.2019 stated that the
deceased was having Account No.3104528073 with amount of
Rs.165,122.15 as on 13.04.2019.

Record shows that there is no impediment nor any will has

been found. Therefore, for the aforesaid reasons, the application is
allowed. The Accountant District and Sessions Court, Hyderabad is
appointed as Commissioner with directions to withdraw amount of
Rs.165,122.15 lying in Account No.3104528073 from National Bank of
Pakistan, Municipal Corporation Branch, Hyderabad and disburse the
same to the heirs of deceased Zubeda Bibi i.e. applicant and
opponents Nos.1 to 8 as per their respective shares subject to
furnishing P.R. Bond of the applicant in equivalent amount shown in
the balance of the deceased and such report be submitted before this
court within 30 days. The Succession Application stands disposed of
accordingly.

Pronounced in open Court.

Given under my hand and the seal of this Court on this 13 th day
of April, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE, HYDERABAD
IN THE COURT OF VITH ADDITIONAL SESSIONS JUDGE, HYDERABAD
Sessions Case No.179 OF 2019

The State-----------------------------------------Vs.--------------------Mst. Parveen & another.

Crime No.223/2018
PS: Husri/Pabban
U/S:324, 337-F(vi), 114, 34 PPC

Mr. Abid Hussain Thebo, advocate for the accused.

Ms. Mujeeb Qadir Memon, A.D.P.P for the State.

ORDER ON APPLICATION U/S 345(ii) Cr.P.C.

ORDER
15.04.2019

Heard arguments of learned counsel for the parties, also perused the
material available on record and further heard the complainant Mst. Azizan and
injured Qaz Bano in person.
Learned counsel for the respective parties and parties concerned seek
permission to compound the offence on the ground that both the parties have
patched the dispute on the intervention of Nekmards and they intend to maintain
cordial relations in future.
Learned A.D.P.P has submitted that since main offences are
compoundable, therefore, he has no objection if permission is accorded to
compound the offence.
It appears that both the sides are willing for initiating the mediation
process in order to resolve the dispute amicably and according to them, they want
to live peacefully in future and maintain cordial relations to each-others.
Honourable Apex Courts have encouraged the compromise process in the matters
where the offence is made compoundable in schedule attached to the Cr.P.C.
Learned A.D.P.P recorded has no objection for grant of permission. Accordingly,
instant application stands allowed and permission is granted to the parties to make
mediation process for compounding the offences.
ANNOUNCED IN OPEN COURT
Given under my hand and the seal of the Court this 15 th day of April,
2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL: SESSIONS JUDGE, HYDERABAD
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IN THE COURT OF VITH ADDITIONAL SESSIONS JUDGE, HYDERABAD

Sessions Case No.179 OF 2019

The State-----------------------------------------Vs.--------------------Mst. Parveen & another.

Crime No.223/2018
PS: Husri/Pabban
U/S:324, 34 PPC
Mr. Abid Hussain Thebo, advocate for the accused.
Ms. Mujeeb Qadir Memon, A.D.P.P for the State.

ORDER ON APPLICATION U/S 345(vi) Cr.P.C.

ORDER
15.04.2019
Heard arguments of learned counsel for the parties, also perused the
material available on record and further heard the injured Qaz Bano in person.
Learned counsel for the respective parties and parties concerned seek for
passing of an order accepting the compromise arrived at in between the parties as they
have patched up matter with prior permission of this Court, therefore, compromise may be
accepted and thereby accused be acquitted.
Record shows that after usual investigation, challan was submitted in the
court of area Magistrate showing accused Mst. Parveen in cuostdy while accused Aslam as
absconding, who sent up the R&Ps to the Honourable District & Sessions Court, Hyderabad
on jurisdiction ground and subsequently the R&Ps were received by way of transfer for its
disposal according to law. Subsequently, co-accused Aslam also surrendered. Thereafter
charge was framed upon the accused vide Ex.02 on 22.03.2019 and today the case was fixed
for recording evidence of prosecution witnesses when both sides appeared, filed the instant
application and pressed for order on instant application for compounding of the offences,
which was already filed.
It appears that both sides have patched up and settled their differences
outside the court with prior permission of this Court and injured Mst. Qaz Bano has
affirmed such compromise stating further that they in order to maintain harmonious
relations have entered to amicable settlement with the accused and she has waived off right
of Qisas. Admittedly, offences U/S. 324 and so also U/S. 337-F(vi) PPC are shown as
compoundable in the schedule attached to the Cr.P.C. In these circumstances and in the
interest of justice, compromise is accepted. Accordingly, accused Muhammad Aslam S/o
Panjal and Mst. Parveen W/o Muhammad Aslam are acquitted. They are present on bail,
their bail bonds stand cancelled and sureties are discharged.
ANNOUNCED IN OPEN COURT
Given under my hand and the seal of the Court this 15 th day of April,
2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL: SESSIONS JUDGE, HYDERABAD
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Document Code: 3E970B99C81130F45489FC0AC4C05ECA
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
Succession Application No.77 of 2019
Muhammad Shareef
S/o Late Darya Khan Pussio
Muslim Adult by caste Pussio
R/o Village Imam Bux Pussio
Taluka & District Hyderabad………………………………...………………….Applicant

Versus

1. Muhammad Haneef S/o Darya Khan Pussio

2. Mst. Shafat D/o Late Darya Khan Pussio
W/o Muhammad Bux, Both above Muslims Adults
By caste Pussio, R/o Village Imam Bux Pussio
Taluka & District Hyderabad
3. General Public at Lage…………………………………………………
Opponents.
Mr. Anwar Ali Solangi, advocate for the applicant

ORDER
16.04.2019
This order shall dispose of present succession application
filed U/s 372 of Succession Act, 1925 by the applicant in which it is
stated that Darya Khan Pussio S/o Muhammad Saleh died on
02.05.2009 leaving behind him applicant and opponents Nos.1 & 2 as
his surviving legal heirs. The deceased during his lifetime was
maintaining Account bearing No.PK0010021175220015 with blanace of
Rs.114,424/- in Allied Bank Limited, Tando Jam Branch, Hyderabad,
such schedule is annexed with the application. The applicant
approached the concerned bank for providing bank statement and
issuance of certificate of shown account but to no avail.

In support of the case, the affidavits of two independent

witnesses namely Zulfiqar Ali S/o Noor Muhammad and Ali Gul S/o
Ghulam Muhammad are filed, who have stated that there is no other
legal heir of deceased except the applicant and opponent Nos.1 & 2.
Apart from this, affidavits of opponent Nos.1 & 2 are also filed
extending no objection in favour of applicant.

Heard learned counsel and perused the material available

on record.

The applicant has prayed for succession certificate in

favour of applicant and opponents Nos.1 & 2 to receive the amount
from the above bank as shown in the schedule annexed with
application. The notice was published in daily newspaper “IBRAT”
dated 09.03.2019, however, nobody has come forward to object to the
prayer made by the
 -2-

applicant. In addition to this, report was called from Mukhtiarkar

concerned who vide his letter dated 20.03.2019 reported that
deceased died leaving behind the applicant and opponent No.1 & 2 as
his legal heirs. This is what which is reported by SHO Police Station
Tando Jam, Hyderabad vide letter dated 25.03.2019 whereas Deputy
Director NADRA Hyderabad Zone in his report dated 11.03.2019
reported that opponents Nos.1 & 2 are legal heris of deceased. As
regards applicant, who is not shown as legal heirs of deceased by
NADRA but his affidavit in support of succession appplicaiton having
made its biometric from the Identification Branch of District Hyderabad
shows that he has valid CNIC showing his father’s name as Darya
Khan. In addition to this, the Manager Allied Bank Limited, Tando Jam
Branch, Hyderabad in his report dated 15.04.2019 stated that the
deceased was having Account bearing No.0010021175220015 with
amount of Rs.114,424.50/- as on 15.04.2019.

Record shows that there is no impediment nor any will has

been found. Therefore, for the aforesaid reasons, the application is
allowed. The Accountant District and Sessions Court, Hyderabad is
appointed as Commissioner with directions to withdraw amount of Rs.
114,424.50/- lying in Account No.0010021175220015 from Allied Bank
Limited, Tando Jam Branch, Hyderabad and disburse the same to the
heirs of deceased Darya Khan Pussio i.e. applicant and opponents
Nos.1 & 2 as per their respective shares according to Muhammadan
Law subject to furnishing P.R. Bond of the applicant in equivalent
amount shown in the balance of the deceased and such report be
submitted before this court within 30 days. The Succession Application
stands disposed of accordingly.

Pronounced in open Court.

Given under my hand and the seal of this Court on this 16 th day
of April, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE, HYDERABAD
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Document Code: EE88437C92B69197A9C11FF991FE2B04
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
Succession Application No.68 of 2019
Mst. Rukhsana Abbas
D/o Late Mirza Abbas Baig
Muslim, adult R/o Deaf Training Center
Unit No.B-4, Latifabad Hyderabad………………………...………………….Applicant

Versus

1. Mirza Rashid Baig S/o Late Mirza Abbas Baig

2. Mirza Zahid Baig S/o Late Mirza Abbas Baig
3. Mst. Mehak Fatima D/o Late Mirza Abbas Baig
Opponent No.1 to 3 All Muslims, Adults,
R/o Deaf Training Center, Unit No.B-4
Latifabad, Hyderabad
4. General Public at Large………………………………………………Opponents.
Syed Sarfaraz Ali Shah, advocate for the applicant

ORDER
17.04.2019
This order shall dispose of present succession application
filed U/s 372 of Succession Act, 1925 by the applicant in which it is
stated that Mirza Abbas Baig S/o Mirza Asghar Baig died on 11.05.2018
leaving behind him applicant and opponents Nos.1 to 3 as his surviving
legal heirs. The deceased was employee of Hyderabad Municipal
Corporation as Chowkidar and during his lifetime was maintaining
Account bearing No.3104498650 with blanace of Rs.373,223.68/- in
National Bank of Pakistan, M.C. Branch, Hyderabad, such schedule is
annexed with the application. The applicant approached the concerned
bank for providing bank statement and issuance of certificate of shown
account but to no avail.

In support of the case, the affidavits of two independent

witnesses namely Muhammad Hashim S/o Pirmal and Zohaib Malik S/o
Shafique Ahmed are filed, who have stated that there is no other legal
heir of deceased except the applicant and opponent Nos.1 to 3. Apart
from this, affidavits of opponent Nos.1 to 3 are also filed extending no
objection in favour of applicant.

Heard learned counsel and perused the material available

on record.

The applicant has prayed for succession certificate in

favour of applicant and opponents Nos.1 to 3 to receive the amount
from the above bank as shown in the schedule annexed with
application. The
 -2-

notice was published in daily newspaper “QAUMI AKHBAR” dated

21.03.2019, however, nobody has come forward to object to the prayer
made by the applicant. In addition to this, report was called from
Mukhtiarkar concerned who vide his letter dated 02.03.2019 reported
that deceased died leaving behind the applicant and opponent No.1 to
3 as his legal heirs. This is what which is reported by SHO Police
Station B-Section Latifabad, Hyderabad vide letter dated 03.04.2019
and Deputy Director NADRA Hyderabad Zone in his subsequent report
dated 16.04.2019. In addition to this, the Manager National Bank of
Pakistan, M.C. Branch, Hyderabad in his report dated 16.04.2019
stated that the deceased was having Account bearing No.3104498650
with amount of Rs.373,223.68/- as on 16.04.2019.

Record shows that there is no impediment nor any will has

been found. Therefore, for the aforesaid reasons, the application is
allowed. The Accountant District and Sessions Court, Hyderabad is
appointed as Commissioner with directions to withdraw amount of
Rs.373,223.68/- lying in Account No.3104498650 from National Bank of
Pakistan, M.C. Branch, Hyderabad and disburse the same to the heirs
of deceased Mirza Abbas Baig i.e. applicant and opponents Nos.1 to 3
as per their respective shares according to Muhammadan Law subject
to furnishing P.R. Bond of the applicant in equivalent amount shown in
the balance of the deceased and such report be submitted before this
court within 30 days. The Succession Application stands disposed of
accordingly.

Pronounced in open Court.

Given under my hand and the seal of this Court on this 17 th day
of April, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE, HYDERABAD
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AA4A13E8E2DD06C777F15E88C5C1973C

IN THE COURT OF VI-ADDITIONAL DISTRICT JUDGE,

HYDERABAD
Summary Suit No.21 of 2018
Israr
Ahmed……………………………………………………………………………………………
…………..Plaintiff.
VERSUS
Ali Nawaz Gill………………………………………………………………….
……………………………..Defendant.
Mr. Muhammad Aleem Arain Advocate for plaintiff.
Mr. Adnan Shakeel Shaikh advocate for defendant.
ORDER
20.04.2019
This order shall dispose of an application U/O. XXXVII Rule
3(i) of C.P.C. for leave to defend filed by defendant.
2. Notice of this application was given to otherside, to which,
plaintiff filed objections.
3. Facts, in nutshell, arising out of present Summary Suit are
that the plaintiff is proprietor/owner of a registered company of M/S.
Agree Add Enterprises and appointed the defendant on temporary
basis, to serve as Sales Officer at District Mirpurkhas since 12.04.2015
assigning him duties to get recovery of sales from dealers and as a
result an amount of Rs.25,53,000/- became outstanding upon him
which he recovered from dealers and on demand he issued a Cheque
No.49729643 of Allied Bank Limited, Shaheed Fazal Raho on
02.10.2017 in presence of witnesses, which was deposited by the
plaintiff in his account at MCB Branch Latifabad No.7, Hyderabad but
the same was dishonoured for want of funds and such memo was
issued. Thereafter plaintiff approached the defendant but to no avail
and lastly the plaintiff after getting order from the Court, got registered
FIR No.18 of 2018, U/S. 489-F PPC at Police Station A-Section Latifabad
Hyderabad, against the defendant and such case is pending
adjudication before the Court of Ist Judicial Magistrate, Hyderabad.
4. After service, defendant filed application for leave to
defend wherein he mainly stated that the allegations leveled in the
plaint are false, he paid whole due amount of plaintiff through different
banks and persons namely Kashif, brother of plaintiff and one Sohail
Manager of plaintiff’s CNG Pump and that the defendant issued blank
cheque and given to the plaintiff for the purpose of security of vehicle
bearing registration No.ASY-799 provided to him by the plaintiff ‘s
company for discharging of his duties at the time of his appointment.
5. Learned counsel for defendant argued that the defendant
was employee of plaintiff’s company as he was appointed vide letter
dated 12.04.2015 as Sales Officer and that he was also provided a Car
to discharge his duties and in lieu thereof, a blank cheque was
obtained by the plaintiff’s
-2-
company from defendant as security of the Car which was one of the
condition of his appointment. He further argued that defendant was
performing his duties and subsequently he left the job of the plaintiff’s
company and while he returned the car, he requested the plaintiff’s
company to return his blank cheque back but the plaintiff’s company
desired that the plaintiff to continue his job and since he refused, the
cheque given by him was got dishonoured with mala fide intention and
thereafter an FIR was also got registered by the plaintiff and in such
case the defendant has been acquitted. He further argued that the
defendant filed suit for cancellation of such cheque before the learned
Ist. Senior Civil Judge, Mirpurkhas but the same was returned for want
of jurisdiction. He lastly argued that the cheque was not one which was
issued by the defendant to realize the alleged amount but it was the
security against the Car given to him by plaintiff’s company, therefore,
the defendant may be permitted to defend the suit unconditionally. As
regards, delay in filing of application, he argued that the same may be
condoned in the larger interest of justice as the same was not
intentional.
6. On the other hand, learned counsel for plaintiff argued that
the defendant was employee of plaintiff’s company discharging his
duties at Mirpurkhas Office, who used to get amount from the dealers
and remit the same to plaintiff sometime through online and sometime
through cheques. He further argued that the defendant obtained
amount from certain dealers but he did not send it to plaintiff’s
company and usurped the same and to realize such amount, issued
Cheque No.49729643 which was presented in the bank but it was
dishonoured for want of funds, therefore, the plaintiff dismissed the
services of defendant and also taken its car back. He further argued
that the defendant taken false plea that cheque given by him was
security in respect of XLI Car and that the present application is filed
after the delay of 02 months and 09 days while he was bound to file
the same within the period of 10 days after the service upon him,
therefore, leave to defend application may be dismissed and suit
decreed as prayed for. In support of his arguments, he relied upon
case laws reported as 2019 CLD 55, 2014 CLD 1499, 2004 CLD 817,
2005 CLD 1701 and 2005 SCMR 1428.
7. I have heard learned counsel for both the parties and gone
through the material available on record.
8. First of all, I would reproduce Order XXXVII Rule 3(I) C.P.C.
which is provided for filing an application for leave to defend the suit,
the same reads as under;
“the Court shall upon application by the defendant, give
leave to appear and to defend the suit, upon affidavits
which disclose such facts as would make it incumbent on
the holder to prove consideration, or such other facts as
the Court may deem sufficient to support the application”
-3-
9. The record transpires that the very application filed by the
defendant merely contains verification clause but he did not file
affidavit in support of such application stating the grounds and the
facts on which it is based. To this aspect of the matter, Section 67(I)(c)
of Sindh Civil Court Rules provides that every interlocutory application
shall be supported by affidavit stating clearly the grounds and the facts
on which the application is based. Mere verification clause to an
application which is only meant for verification of the contents of
application cannot be treated as affidavit stating the facts and the
grounds. Thus, the very application is not maintainable on this ground
alone.
10. Coming to the diaries of the suit, record shows that service
upon defendant was held good on 16.05.2018 as summon issued,
returned duly served upon him, through Civil Judge and Judicial
Magistrate-I, Hyderabad and matter was adjourned to 04.07.2018
when Mr. Ishrat Ali Lohar, Advocate appeared and filed power on
behalf of defendant and further at his request copies of memo of plaint
with annexures were supplied to him, however, he did not file
application for leave to defend on this date though more than 10 days
period was already allowed to plaintiff, however, matter adjourned to
14.07.2018 but on this date the defendant and his counsel called
absent. No doubt, diary of this date shows that there was strike of Bar
but his junior partner appeared and the learned counsel for the
defendant could have sent the above application with supporting
affidavit through his junior partner with application of Section 5 of
Limitation Act, 1908 but he did not opt to do and finally he filed the
same on 23.07.2018 for leave to defend the suit after the period of one
month and twenty seven days from ten days of service made upon
defendant, which too without submitting application U/S. 5 of
Limitation Act, 1908 for condoning such delay. It is mandate of the law
behind Order XXXVII Rule 3(II) C.P.C. that the provision of Section 05 of
Limitation Act, 1908 would apply to applications for leave to defend if
the same is filed with delay.
11. Present is the case in which no ground whatsoever is taken
by filing application under the relevant provision of law that what were
the reasons which restrained the defendant from filing application for
leave to defend the suit within ten days after service whereas the law
provides that each day of delay is to be explained. In this regard,
reliance is placed upon the case law reported as 2004 MLD 270
[Lahore] which provides that;-
“Law providing limitation for maintaining lis---Mandatory---
Delay in filing any matter must be explained by giving
cause for each day’s delay”

12. It is settled principle of law that invoking of remedy by

some aggrieved person beyond the prescribed period of limitation
creates valuable
 -4-

legal rights in favour of the opposite party and in such cases delay of
each day is to be explained by defaulting party but this is the case in
which even the defendant did not consider it proper to file such
application, what to say of explanation of each day. In this regard,
reliance is placed upon the case law reported as 2013 SCMR 1415
(Supreme Court of Pakistan) that;-
“Delay in availing remedy---Condonation of delay---
Scope---Invoking of remedy by some aggrieved party
beyond the prescribed period of limitation created valuable
legal rights in favour of the opposite party, therefore, in
such cases delay of each day was to be explained by the
defaulting party to the satisfaction of the court, which
could not be condoned lightly or as of routine, as such
arbitrary exercise of discretion would cause serious
prejudice to the interest of the opposite party”.

13. Thus, the application for leave to defend the suit is also
seriously time barred and the same merits no consideration. As
regards the issuance of cheque by the defendant to the plaintiff’s
company, the defendant taken plea that it was issued by him as
security of the vehicle bearing Registration No.ASY-799 provided by
plaintiff’s company to him at the time of his appointment by letter
dated 12.04.2015, this letter mentions terms and conditions and at
condition No.3 it mentions that the company will provide car to
promote its sale business, however, it nowhere mentions any condition
that against the car provided to the defendant, the defendant was to
give blank cheque to the plaintiff’s company. To say that the issuance
of cheque was security of returning back the vehicle being one of the
conditions of his appointment, is redundant, therefore, defendant has
also no arguable case. In such situation, how leave can be granted
because leave can only be granted where an arguable case/defence is
putforth and the same is filed within the period of limitation.
14. In these circumstances, there is no case for grant of leave
to defend the suit. Accordingly, the application for leave to defend the
suit is dismissed. Consequently, the suit is decreed to the extent of
principle amount of Rs.25,53,000/- (Twenty Five Lacs and Fifty Three
Thousand), leaving both the parties to bear their own costs. Let office
to prepare such decree in accordance with law.
Announced in open Court.
Given under my hand and seal of the Court this 20th of April, 2019.

(MUHAMMAD FAZIL BOHIO)

VI-ADDITIONAL DISTRICT JUDGE HYDERABAD
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Document Code: 1544DB0B2BA60754489730327ED2F76B
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
Civil Appeal No.04 of 2016
2. Rafique S/o Faqeer Muhammad
S/o Faqeer Muhammad
1. Muhammad Shareef
Both above Adults Muslims
R/o House No.58, R.S 527
situated at Gulshan-e-Fareed
Housing Scheme Deh Tapa Gujo
Taluka District Hyderabad…....
………………………………………………….APPELLANTS.
Versus
Mst. Parveen Bano W/o Sher Muhammad
Adult Muslim R/o House No.112
Gulshan-e-Fareed Noorani Basti
Hyderabad……………………………………………................................RESP
ONDENT.
Mr. Mehran, learned counsel for
appellants/applicants.
Mr. Muhammad Javed, learned counsel for
respondent.

J U D G M E N T.
29-04-2019.

This appeal is directed against the judgment and decree

dated 14.11.2015, passed by learned VIIIth Civil Judge, Hyderabad, in
IIIrd Class Suit No.02 of 2015 (re-Mst. Parveen Bano Vs. Muhammad
Shareef and another), whereby the learned trial Court decreed the suit
to the extent of declaration and possession while the claim of mesne
profits was dismissed.
2. The respondent/plaintiff Mst. Parveen Bano filed above suit
for Declaration, Possession and Mesne Profit stating that she
purchased a plot No.58 measuring 600 Sq ft, R.S. No.527 situated in
Gulshan-e-Fareed Housing Scheme, by a registered sale deed No.1102
dated 16.03.2010 in the sum of Rs.40,000/-, surrounded by boundary
wall wherein one room was constructed. About a month back, plaintiff
visited the plot and found it in possession of defendants, whom she
asked to vacate the same but they refused. She approached the
concerned Police Station but was advised to approach Civil Court,
hence, plaintiff filed the instant suit with the following prayers;-
 (a) The defendant be directed to handover possession of Plot
No.58 through the Bailiff of the Court and declare the
plaintiff as owner;

(b) The cost of the suit;

(c) Any other relief may be granted including mesne profit as

this Honourable Court may deem fit and proper.

3. After service of notice, respondent/defendants filed their

written statement wherein they denied the allegations leveled against
them by stating

-2-
that government of Sindh is necessary party because the sale deed
shown in the plaint is a false document and the same is allegedly
registered with Sub-Registrar. It is further stated that the suit property
is different to that of the property which is possessed by the
defendants and that the defendants have no concern with the suit
property nor they are in its possession as they purchased a house
through written agreement to sale from one Mst.Dhayani W/O
Mehboob on 31.01.2014 in presence of witnesses when possession was
also handed over to them. It is further stated that the suit property
shown in the sale deed is also having different number to that of the
house of defendants, therefore, the plaintiff is not entitled for any relief
and that the Court has no jurisdiction to proceed with it and the same
be dismissed.
4. Out of the pleading of the parties, learned trial Court
framed the following issues;-
1. Whether the suit as framed is maintainable under the law
and not hit by the living laws?

2. Whether the plaintiff has any cause of action for judicial

redress?

3. Whether the plaintiff is entitled for relief claimed?

4. What should the decree be?

5. On the above issues, both the parties adduced their
evidence respectively and closed the side in evidence.
6. After hearing the parties, learned trial Court passed the
impugned judgment and decree whereby, partly decreed and partly
dismissed the suit.
7. Learned counsel for appellants/defendants in his
arguments mostly re-urged the grounds of appeal contending further
that the suit was filed before wrong forum as the relief was based upon
Sale Deed having been allegedly registered by Government officials,
therefore, Government of Sindh was necessary party and claim was of
first class nature. He further argued that plaint of suit was undervalued
also. He emphasized that after framing issues, the appellants adduced
their evidence and produced number of witnesses who supported their
case and further that the house purchased by the appellants is
situated in Ghareeb Nawaz Colony whereas the suit property shown in
the sale deed is situated in Gulshan-e-Fareed Housing Scheme which is
quite different to that of the property purchased by the defendant. He
further argued that the judgment is incorrectly dated and further
issues settled are not properly discussed and even one of them was
neither discussed nor mentioned in the judgment, therefore, judgment
being void, and ab-initio, carries no limitation and because of this the
appellant did not file application for condoning delay, if any. He further
argued that complaint under Illegal Dispossession Act and so many
other documents are brought on record show that the plot of the

-3-
defendants is quite different to that of the suit property. He lastly
argued that the judgment and decree of the trial Court may be set-
aside as the suit was not maintainable. In support of his like arguments
he relied upon case laws reported as 2007 SCMR 914 and 1996 SCMR
856.
8. On the other hand, learned counsel for respondent argued
that appeal is filed after delay of 18 days which is not explained nor
any application under Section 5 of Limitation Act is filed to condone
such delay. He further argued that the claim of mesne profits of
plaintiff was dismissed, therefore, suit was not undervalued and that it
was the prayer of the plaintiff and the same cannot be made being
part of the valuation of the suit property. He addressing the different
dates appearing on judgment, argued that the date appearing on last
page of the judgment is typographical mistake. He further argued that
the plaintiff purchased the suit property on the basis of registered sale
deed, the original was seen and returned and the witness examined by
the plaintiff supported her case while the defendants based their claim
on sale agreement and failed to examine witnesses of agreement to
sale. He further argued that the suit filed was of third class nature and
because of that it was filed before Civil Judge in which Government of
Sindh was not necessary party as no relief was claimed from it. He
further argued that plaintiff did not examine attesting witnesses of sale
deed because no necessity arisen, therefore, the appeal being time
barred is not maintainable under the law and the same be dismissed
with costs as the judgment of learned trial Court does not call for
interference by this Court. In support of his arguments, he relied upon
the case laws reported as 2019 CLC Sindh 321, 2013 CLC Pesh. 403,
2017 CLC Note (SC/AJK) 71, 2003 CLD Sindh 2220, 2014 PLD Sindh
624, 2002 SCMR 134 and 2006 CLC 578.
9. Learned counsel for appellant in rebuttal argued that so
many documents annexed with the appeal show that house in
possession of defendants is different to that of the suit property.
10. I have heard learned counsel for the parties and gone
through the material available on record including the case laws relied
upon by learned counsel for parties respectively.
Now point for determination of the lis, are as under:

POINTS

(i) Whether the appeal is timed barred?

(ii) Whether impugned judgment and decree dated

14.11.2015 require any interference of this Court?.

(iii) What should the judgment be?

-4-
My findings on points (I), (II) and ((II) are as under:-

FINDINGS
POINT NO.I In negative.
POINT NO.II In affirmative.
POINT NO.III Appeal allowed as under;-

REASONS
POINT NO.I
11. So far the plea taken by the respondent that the appeal is
time barred as it was filed after about 18 days of limitation period
which too without filing application U/S. 5 of Limitation Act, the first
page of the judgment shows the date of its delivery as 14.11.2015
while its last page mentions the date of its announcement as
24.11.2015 and both these dates are intact so far as the R & Ps are
lying before this Court which is silent as to whether anyone from above
dates was corrected and brought in line to each other or not, therefore,
the later dated viz. 24.11.2015 will be the date wherefrom the time will
be calculated after excluding 04 days consumed by the office in
preparation of copies and their delivery to the appellant. Record shows
that application for supplying copies was filed on 05.12.2015 while the
copies were supplied on 09.12.2015. Thus, the appellant filed appeal
on 05.01.2016 after the delay of 08 days and as to this delay. The plea
taken by the learned counsel for appellant that he did not file
application for condoning such delay as the learned trial Court passed
a void judgment which not only mentions two dates of its delivery but
it does not discuss the issues actually framed, carry weight in it. As is
discussed above, the judgment announced by the trial Court mentions
two different dates of its delivery and further per Ex.16, it framed
following four issues which read as under;-
1. Whether the suit as framed is maintainable under the law
and not hit by the living laws?
2. Whether the plaintiff has any cause of action for judicial
redress?
3. Whether the plaintiff is entitled for relief claimed?
4. What should the decree be?

12. Out of above issues, Para No.2 of the judgment mentions

only 03 issues which read as under:-
1. Whether the suit is maintainable under the law in its
present form and not hit by any law, for the time being
enforce?
2. Whether the plaintiff is entitled for the relief claimed?
3. What should the Judgment and Decree be?

13. A look at the above issues transpires that the issues

mentioned and discussed in the judgment are not in the line of the
issues which were

-5-
actually framed because issue No.2 has replaced the issue No.3, issue
No.3 has replaced the issue No.4 while issue No.2 actually framed at
Ex.16 is neither mentioned in the judgment nor the same was
discussed anywhere there under. If it is so; it is serious violation of
Order 20 rule 5 CPC which provides that the Court to state its decision
on each issue. It is settled principle of law that if basic order is without
lawful authority and void, the entire super structure raised thereon
falls on the ground automatically. Reliance in this regard is placed
upon the case law reported as PLD 2008 SC 663. Thus, I am of the
humble opinion that the learned trial Court did not pass a lawful
judgment and if it is so, under the garb of limitation, blanket authority
cannot be given to the trial Court to keep on satisfying the judgment
which in fact is nullity in the eyes of law, therefore, a judgment which
is passed in contravention of basic law would run with no limitation.
The reliance in this regard is placed upon the case law reported as
2002 SCMR 122. I am also conscious of the fact that such glaring and
serious mistake of the Court should not prejudice the litigant and
litigant could not be left to suffer because of negligence of Court in
making discussion upon an issue which was actually framed. On the
contrary, there must have been findings on such issue and reasons
there far till it was amended or otherwise. In another case reported as
2001 SCMR 1822, it has been held that if the order is void, no period of
limitation would run against a void order. Therefore, none filing of an
application as provided under section 5 of Limitation Act for condoning
delay of 08 days, in the present appeal would not entail the dismissal
of appeal especially in the given circumstances of the case. Thus, the
arguments advanced by learned counsel for respondent have no
substance in them and the authority (supra) relied upon by him, to my
humble, are distinguishable from the facts and circumstances of the
case in hand. I therefore, answer the point No.1 as negative.

POINT NO.II
14. So far merits of the case is concerned, the plaintiff taken
plea that he purchased the suit plot by a registered sale deed which is
situated in Gulshan-e-Fareed Housing Scheme, Hyderabad on
16.03.2010 against consideration of Rs.40,000/- whereas defendants in
written statement pleaded that they purchased a house by written
agreement from Mst. Dhanyani on 31.01.2014 and that they do not
have concern with the suit property as their house is quite different to
that of the suit property. Agreement to sale which is spoken of in the
written statement is brought on record at Ex. D/1/A which admittedly
does not mention particular house number but the same is shown to
be situated in Ghareeb Nawaz Colony whereas the suit property, per
sale deed produced by plaintiff, is situated in Gulshan-e-Fareed
Housing Scheme. If it is

-6-
so; it was a particular issue to be framed by the trial Court to see as to
whether the defendants had occupied the plaintiff’s property or not
and whether these two properties were situated at different places but
the learned trial Court did not opt to do. In addition to this, the plaintiff
did not adduce evidence of the attesting witnesses of the sale deed
also. Furthermore, when there was such issue that the suit property is
not one which is in possession of the defendants, the official witnesses
were necessary to be examined by the trial Court to see whether the
sale deed in respect of suit property was genuine one and the two
properties, as claimed by the defendants, were having with different
boundaries and situation or otherwise. No doubt, the DW-1 in his cross
deposed that he did not verify title of Mst. Dhanyani from whom he
purchased the said house nor he read over the contents of sale
agreement and further the defendants did not examine attesting
witnesses of agreement to sale and the witnesses so far examined by
him given hopeless evidence but weakness of the defendants cannot
be made basis to decree the suit because one who asserts has to
prove. It is also settled proposition of law that plaintiff has to prove his
own legal character or right over the property and he cannot get
benefits from the weaknesses of the material placed on record by the
defence side. Reliance in this regard is placed on the case law reported
as 2009 YLR 414 (b), in which it has been held that;-
“Arts 117 & 120---Proof of case---Principle---Plaintiff cannot
take benefits of weaknesses of defendants and he has to
prove his case according to his own pleadings”

15. In view of above discussion, I am of the humble opinion

that the judgment and decree delivered by learned trial Court call for
interference by this Court, therefore, the point in hand is replied in
affirmative.

POINT NO.III
16. In the light of the discussion aforesaid, the impugned
judgment and decree passed by learned trial Court call for interference
by this Court. Accordingly, the instant appeal is allowed and impugned
judgment and decree are set-aside and the matter is remanded back
to the trial Court with directions to decide the suit on merits within
shortest possible time after framing the fresh issues as per pleadings
of the parties and recording the evidence of both sides in accordance
with law. The parties to bear their own costs. Let the office to prepare
such decree and return the R & Ps to the trial Court with copy of the
judgment for compliance.
Announced in open court,
Given under my hand & seal of this Court, this the 29th day of April, 2019

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
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IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,

HYDERABAD.
Succession Application No.29 of 2019
Azmatullah Qureshi S/o Late Saeedullah Qureshi
Muslim, adult, resident of H.No.10/A, Block-B
Unit No.9, Latifabad, Hyderabad…………………………...
………………….Applicant.

Khursheed Jehan Wd/o Late Saeedullah Qureshi………………………..Deceased.

Mr. Abdul Samad Qureshi, advocate for the applicant

ORDER
20.04.2019
This order shall dispose of present succession application
filed U/s 372 of Succession Act, 1925 by the applicant in which it is
stated that deceased Khursheed Jehan Wd/o Late Saeedullah Qureshi
died on 20.08.2018 leaving behind her, the applicant, Ghazala
Parveen, Ishratullah Qureshi, Nasirs Parveen, Shama Parveen and
Shehla Faseeh as her surviving legal heirs. The deceased during her
lifetime had own Behbood Saving Certificates bearing Nos.E-308062, E-
308063, E-308064, E-308065, E-308066 and E-308067 under
Registration No.3437 dated 17.07.2008, amounting to Rs.500,000/-
each total Rs.30,00,000/- lying with National Savings Centre-III,
Latifabad No.7, Hyderabad, such schedule is annexed with the
application. The applicant approached the concerned bank for
withdrawal of said certificates but to no avail.

In support of the case, the affidavits of two independent

witnesses namely Zia-ur-Rehman Awan S/o Ghulam Rabbani and
Muhammad Hamza Khan S/o Abdul Waheed Khan are filed, who have
stated that there is no other legal heir of deceased except the
applicant, Ghazala Parveen, Ishratullah Qureshi, Nasira Parveen,
Shama Parveen and Shehla Faseeh, who have filed their respective
affidavits extending no objection in favour of applicant, however, legal
heir namely Shama Parveen did not appear before the Court and
reported to have residence at Canada.

Heard learned counsel and perused the material available

on record.

The applicant has prayed for succession certificate in

favour of applicant and Ghazala Parveen, Ishratullah Qureshi, Nasira
Parveen, Shama Parveen and Shehla Faseeh to receive the amount
from the above bank as shown in the schedule annexed with
application. The notice was
 -2-

published in daily newspaper “UMMAT” dated 20.02.2019, however,

nobody has come forward to object to the prayer made by the
applicant. In addition to this, report was called from Mukhtiarkar
concerned who vide his letter dated 21.02.2019 reported that
deceased died leaving behind the applicant and Ghazala Parveen,
Ishratullah Qureshi, Nasira Parveen, Shama Parveen and Shehla
Faseeh as her legal heirs. This is what which is reported by SHO Police
Station B-Section Latifabad, Hyderabad vide letter dated 16.03.2019
and Deputy Director NADRA Hyderabad Zone in his subsequent report
dated 19.04.2019. In addition to this, the Officer Incharge National
Savings Centre-III Latifabad Hyderabad in his report dated 03.04.2019
stated that the deceased invested Rs.30,00,000/- in the shape of
Behbood National Saving Certificates bearing No.E-308062, E-308063,
E-308064, E-308065, E-308066 and E-308067 alongwith profit of
Rs.42,000/- thereon as on 02.04.2019.

Record shows that there is no impediment nor any will has

been found. Therefore, for the aforesaid reasons, the application is
allowed. The Accountant District and Sessions Court, Hyderabad is
appointed as Commissioner with directions to withdraw amount of
Rs.30,00,000/- in the shape of Behbood National Saving Certificates
bearing No.E-308062, E-308063, E-308064, E-308065, E-308066 and E-
308067 from National Savings Centre-III Latifabad Hyderabad and
disburse the same to the heirs of deceased Mst. Khursheed Jehan Wd/o
Late Saeedullah Qureshi i.e. applicant, Ghazala Parveen, Ishratullah
Qureshi, Nasira Parveen and Shehla Faseeh as per their respective
shares according to Muhammadan Law subject to furnishing P.R. Bond
of the applicant in equivalent amount shown in the balance of the
deceased and such report be submitted before this court within 30
days. However, share of one of the legal heirs namely Shama Parveen,
who is reported to be residing at Canada, be deposited in a profitable
Government scheme, which shall be withdrawn on her appearance
after proper verification and identification. The Succession Application
stands disposed of accordingly.

Pronounced in open Court.

Given under my hand and the seal of this Court on this 20 th day
of April, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE, HYDERABAD
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IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE, HYDERABAD

Family Appeal No.130 of 2018

Irfan Ahmed S/o Ishtiaq Ahmed

Muslim, adult, R/o House No.G-4029
Mohalla Kalal Para, Phuleli, Hyderabad………………………………………………………………………..Appellant.

VERSUS
Mst. Nazima Begum W/o Ishtiaq Ahmed (Late)
Muslim, adult, R/o House No.A-30,
Latifabad No.9, Hyderabad………….……………………………………………………………………………Respondent.

Mr. Rao Faisal Ali, learned Advocate for appellant.

Mr. Shabbir Hussain Hashmi, learned Advocate for
respondent

JUDGEMENT
23.04.2019
This judgment shall dispose of aforesaid Family Appeal filed by appellant
against judgment and decree dated 14.09.2018 passed by learned Family Judge,
Hyderabad, in Family Suit No.1042 of 2017, whereby learned Family Court decreed the
suit of respondent/plaintiff to the extent of dowry articles viz. Fridge, Ceiling Fan and
battery UPS.
2- Concisely, facts of the case are that respondent/plaintiff filed Suit for
recovery of dowry articles stating that she is stepmother of defendant and was second
real wife of deceased Ishtaiq Ahmed, with whom she married on 04.10.2010 against
dower amount of Rs.50,000/-. At the time of marriage, plaintiff was given valuable
dowry articles including gold and silver ornaments and that on 19.05.2015 her husband
expired and then defendant proved himself as a quarrelsome, who used to beat the
plaintiff and on 19.08.2016 he dispossessed her from the house and clearly refused to
return the dowry articles back to her, hence, plaintiff filed the family suit with the
following prayers;-
(a) That this Honourable Court may be pleased to direct the defendant to
return the dowry articles and valuable gold ornaments or in lieu of
amount worth Rs.500,000/- to the plaintiff voluntarily;
(b) Cost of the suit be saddled upon the defendant.
(c) Any other relief as deems fit and proper under the circumstances.

3- After institution of the suit, notices were issued and in response whereof,
defendant appeared and filed his written statement wherein he denied the allegations
of plaintiff and stated that though plaintiff was married to his father but he is totally
unaware of the dower amount and dowry articles as his father was residing separately
and he was residing with his grandmother. It is further stated that plaintiff
 -2-

after passing two years filed the instant suit only to blackmail and harass the defendant
and she also filed Cr. Misc. Appln. No.2247 of 2016, which was allowed but she did not
record her statement before concerned SHO, which clearly shows that she had no
cognizable offence. It is further stated that defendant and other housemates filed C.P.
No.S-2832 of 2016 against the plaintiff, which is pending adjudication and that he never
dispossessed the plaintiff but it is she who left the house of her late husband with her
own wish and will alongwith all dowry articles so also all necessary documents. It is
further added that the plaintiff is not entitled for any relief and suit is liable to be
dismissed with compensatory costs.
4- During pre-trial defendant admitted some of the dowry articles are lying
at his house and he is ready to hand over the same, hence, Bailiff was appointed on
payment of cost and the plaintiff recovered her dowry articles through bailiff as per list
except gold ornaments, fridge, goat, battery UPS, Stabilizer and Ceiling Fan.
5- From the pleadings of the parties, learned trial Court settled the following
issues;-
1. Whether plaintiff is entitled for the remaining dowry articles as per list?
2. What should the order be?
6- In order to prove the case, plaintiff examined herself at Ex.21 and on the
other hand, defendant despite availing opportunities, failed to cross the plaintiff and
adduce his evidence, therefore, his side in evidence was closed.
7- Learned trial Court after hearing arguments of plaintiff counsel while
otherside remained absent, passed the impugned judgment and decree whereby
decreed the suit of plaintiff.
8- Learned counsel for the appellant/defendant argued that the impugned
judgment and decree are result of misreading and non-reading of evidence as learned
trial Court has failed to carefully scrutinize the evidence of the respondent and that the
learned trial Court failed to bring on record the evidence of appellant nor provided him
chance to cross examine the plaintiff. He further argued that all the dowry articles have
been returned to respondent but she in order to blackmail and harass the appellant,
filed the suit. He further argued that respondent has failed to prove her case and
despite such fact learned trial Court passed the illegal and unlawful judgment and
decree which are not sustainable in the eyes of law and require interference of this
Court. He further argued that no family suit can be filed against step son nor Family
Court has jurisdiction to admit such claim which is domain of Civil Court, therefore,
appeal may be allowed and judgment and decree be set-aside. In the end of his
arguments, learned counsel for appellant relied upon case law reported as 2011 SCMR
1591 (a).
 -3-

9- On the other hand, learned counsel for respondent argued that the
learned trial Court provided full opportunities to appellant to conduct cross of
respondent and adduce his evidence but respondent was not ready to avail such
opportunities and his lack of interest compelled the Court to pass the impugned
judgment and decree. He further argued that learned trial Court appreciated the
evidence and material available on record and after giving deeper consideration, passed
the impugned judgment and decree. He further argued that respondent brought
sufficient evidence in respect of remaining dowry articles and such fact was also
admitted by the respondent during pre-trial, therefore, after consideration such
evidence, learned trial Court decreed the suit. He further argued that appellant failed to
produce concrete evidence in support of his claim, therefore, learned trial Court rightly
decreed the suit by considering all the available record. He further argued that
judgment and decree of learned trial Court are well reasoned and do not require
interference by this Court. In support of his contention, learned counsel for respondent
relied upon case law reported as 2011 SCMR 1591 (b).
10- I have careful considered the submissions of learned counsel for both the
parties at length and gone through the record and R & Ps of learned trial Court.
11- From the aforementioned facts and circumstances, I frame the following
points for determination:
1. Whether judgment and decree passed by learned trial Court suffer from
any illegality and irregularity and require interference by this Court?

2. What should the decree be?

12- My findings on points No.I and II are as under:
FINDINGS

POINT NO.I In negative.

POINT NO.II Family appeal dismissed.

REASONS
POINT NO.I
13- The very claim of the respondent/plaintiff, as per plaint of the suit filed
by her, is that she married with Ishtiaque Ahmed, who died on 19.05.2015. She, at the
time of her marriage was given dowry articles and after death of her husband, her step
son, the appellant/defendant thrown her out from the house of her husband and
further refused to return her dowry articles which were lying in the house of her
husband. To this claim of the respondent/plaintiff, the defendant/appellant filed his
written statement in which he stated that the respondent/plaintiff married with his
father, he is totally unaware about the dowry articles as his father had kept him
separately and he was residing with his grandmother. It is matter of record that on
11.05.2018, pre-trial proceedings were initiated by the learned trial Court during which
 -4-

it transpired that the Bailiff appointed by the learned trial Court, recovered all dowry
articles of respondent/plaintiff and handed over the same to her except few one viz.
Gold ornaments, Fridge, Goat, Battery UPS, Stabilizer and Ceiling Fan, therefore, the
learned trial Court framed such issue. The respondent/plaintiff in her evidence at Ex.21
affirmed that she received all dowry articles except few one shown above. It is matter of
record that appellant/defendant since did not conduct the cross, his side was closed on
21.07.2018, however, on application filed by appellant/defendant, his side was
reopened and chance was afforded to him to conduct the cross of respondent/ plaintiff
but he again failed to do, therefore, his side was closed and judgment announced.
Admittedly, the trial Court given ample opportunities to appellant for conducting cross
of respondent and adducing his evidence but he did not opt to do. Further admittedly,
there is no denial on the part of appellant/defendant that the remaining articles were
not given to the respondent/plaintiff by her parents, therefore, claim of the
respondent/plaintiff went un-rebutted and unchallenged. The ground taken in the
written statement that no suit for recovery of dowry articles can be filed against the
stop son, the like assertion is redundant. Even otherwise, if the defendant fails to
examine himself, the version whatsoever disclosed in the written statement carries no
weight. Yet in the case law reported as 2003 YLR 365 (b) [Lahore], it has been held that;-
“S.2(d)---Term ‘party’---Connotation---Team ‘party’ is not confined only
to the spouses but its meaning are wider in sense---If there is a suit for
recovery of dowry articles and the dowry articles are in the custody of
father of husband then even in lifetime of the husband, his father may
also be impleaded as party as the presence of the father may be
considered necessary for a proper decision of the dispute---Since the
dowry articles are exclusively in the ownership of wife and same are also
recoverable even after the death of the husband then whosever is in
possession of such articles may be impleaded as a party as due to the
death of the husband the responsibility of the legal heirs for return of
dowry articles is not vanished”

The learned counsel relied upon the case law reported as 2011 SCMR
1591(a) contending that no family suit can lay against the step son but the same
authority is against his like arguments and so also the averments made in the written
statement because in this case law it has been held that;
“Any person whose presence as such is considered necessary for the
proper decision of the dispute and any person whom Family Court adds
as party to such dispute, can be made as party”

14- In the circumstances, I am of the firmed view that appellant has failed to
make out any case for interference by this Court in the impugned judgment and decree
as learned trial Court has rightly passed the impugned judgment and decree. I therefore,
answer point in hand as negative.
 -5-

POINT NO.I
15- In view of above discussion, I am of the considered view that the
judgment and decree of learned trial Court do not require interference by this Court,
therefore, same are upheld and resultantly the instant family appeal stands dismissed,
however, with no order as to costs. Decree to follow the judgment. The office is directed
to send back the R & Ps to learned trial Court and assigned the file to record.
Announced in open Court.
Given under my hand and Seal of the Court dated this 23 rd day of April
2019.

(MUHAMMAD FAZIL BOHIO)

VI-ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
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22D6AA6E01CFC8F81F754AE5ED13ECDB

IN THE COURT OF VITH ADDITIONAL SESSIONS JUDGE, HYDERABAD

Sessions Case No.1217 OF 2015

The State-----------------------------------------Vs-----------------------------Naeem & another.

-x-x-x-x-
Jawaid S/o Hashim Shahid Qazi……….……………………………..………....Applicant/Accused
Crime No.107/2015
PS: Pinyari
U/S: 324, 353, 34 PPC
Ms. Samreen Jabeen, Advocate for applicant/accused.
Mr. Mujeeb Qadir Memon, A.D.P.P for the State.

ORDER ON APPLICATION U/S 265-K Cr.P.C.

ORDER
22.04.2019
This order shall dispose of an application filed U/S 265-K Cr.P.C by
applicant/accused Jawaid S/o Hashim Shahid Qazi praying for his acquittal on the
grounds that co-accused Naeem has already been acquitted and charge against him
has become groundless, hence he may be acquitted.
2. Very charge against the accused is that on 21.07.2015 at 2245 hours
at Liaquat Bridge, Noorani Basti, Hyderabad accused alongwith acquitted to accused
Naeem being armed with deadly weapons in furtherance of their common intention
made straight firing upon complainant party with intention to kill them and after
encounter acquitted co-accused was arrested and found in possession of one T.T.
pistol of 30-Bore alongwith magazine and such case was also registered.
3. Record shows that co-accused Naeem is already acquitted by this
Court vide judgment dated 24.11.2016 keeping the case against present applicant/
accused on dormant file. The applicant/accused surrendered before the Honourable
Sessions Judge, Hyderabad by filing bail application U/S. 498 Cr.P.C whereby he was
granted interim pre-arrest bail which was confirmed vide order dated 26.03.2019
and the instant case was reopened, hence, police papers were supplied to him vide
receipt Ex.14. Today the case was fixed for framing of the charge against the accused
when his learned counsel also appeared and filed above application and the notice
whereof was received by learned ADPP for State.
4. The applicant/accused in his application has stated that the case
against him is false and fabricated; co-accused is already acquitted after facing full-
fledged trial, role assigned to applicant/accused is same to that of the role assigned
to co-accused already acquitted, therefore, if the case is proceeded, the ultimate
result will be acquittal as there is probability of conviction of the applicant/accused
and proceedings further shall be futile exercise, the charge against
applicant/accused has become groundless, therefore, he be acquitted.
 -2-

5. Conversely, learned ADPP for the State formally opposed the instant
application arguing further that if the prosecution witnesses are called, they would
adopt their statements earlier recorded.
7. The complainant ASI Ayaz Hayat Baladi and so also HC Nazeer Ahmed
who were examined in absence of accused and deposed in the same brief that it was
the co-accused Naeem who disclosed before them that present applicant/accused
was his companion. This is only the piece of evidence so far available with the
prosecution case upon which the applicant/accused was sent up as absconding
accused. A minute look at the evidence of above PWs transpires that the offence is
shown to have taken place at 2245 hours of night and certainly at that time there
was dark. It is also an admitted position that the above PWs did not claim that the
applicant/accused was previously known to them. If it is so; the statement of co-
accused, which too before police, carries no weight until and unless his like
statement was got recorded before any Magistrate. Record further shows that co-
accused Naeem who was arrested at spot, has been acquitted by this Court vide
judgment dated 24.11.2016 after full-fledged trial and further admittedly per
prosecution case same role is assigned to applicant to that of co-accused Naeem.
Certainly, if the charge is framed against the applicant/accused, same set of
witnesses would be with the prosecution to make them available whose evidence
has already been recorded by this Court. Further to this aspect of the matter,
learned ADPP for the State argued that if the witnesses are brought and examined,
they would adopt their earlier statements. If it is so; proceedings further in given
situation will be a futile exercise. Even otherwise the charge in the given position
against the applicant/ accused has not only become groundless but there will be no
probability of his being convicted for any offence. Accordingly, this application is
allowed thereby applicant/accused Jawaid S/o Hashim Shahid Qazi is acquitted U/S
265-k Cr.P.C. The applicant/accused is present on bail, his bail bond stands
cancelled and surety is discharged.
Announced in open Court.
Given under my hand and the seal of the Court this 22nd of April, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL: SESSIONS JUDGE, HYDERABAD
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5D4BCD2D6662DC354412AF98473CBC65
IN THE COURT OF VITH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.
Sessions Case No.134 of 2019
The State
Versus
Waqar Ahmed S/o Nisaruddin Ansari (on bail)……………………Accused.
Crime No.14/2019
P.S. Pinyari Hyderabad
U/s 23-A Sindh Arms Act

Mr. Mujeeb Qadir Memon, learned ADPP for the State

Mr. Arshad Ali, learned counsel for accused

J U D G E M E N T
22-04-2019

The above named accused has been sent up to stand his

trial in the above case and crime by Police Station Pinyari Hyderabad
for the offence punishable U/s 23-A Sindh Arms Act, vide challan
admitted on 19.02.2019.
2. The very charge against the accused as disclosed in the
FIR is that on 21.01.2019 at 1915 hours complainant arrested the
accused from Mir Garden Mor, Rehman Town, Hyderabad in presence
of mashirs PC Khan Muhammad and PC Imamuddin and found him in
possession of unlicensed 30-Bore pistol without number alongwith
magazine containing four live bullets under such memo prepared and
singed at spot. Thereafter case property was sealed and then accused
and property were brought at Police Station where instant FIR was
registered.
3. As result of investigation, the investigation officer
submitted challan against both the accused before the area
Magistrate, who accepted the challan and sent up the case to the
Court of Honourable Sessions Judge, Hyderabad, on jurisdictional
ground and wherefrom the R & Ps received by this Court for its
disposal according to law.
4. In compliance of Section 265-C Cr.P.C. necessary case
papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.2, to which he did
not plead guilty and claimed to be tried vide his plea was recorded at
Ex.2/A.
5. Prosecution examined complainant ASI Ali Ahmed as PW-1
at Ex.3, he produced memo of arrest and recovery at Ex.3/A and FIR at
Ex.3/B, mashir of the incident PC Khan Muhammad as PW-2 at Ex.4 and
Investigation Officer ASI Nazeer Ahmed as PW-3 at Ex.5, he produced
letter for FSL, Expert report and entry of Malkhana at Ex.5/A to 5/C.
Thereafter learned ADPP for the State closed the side in evidence vide
his statement at Ex.06.
 -2-
6. Statement U/s 342 Cr.P.C. of accused was recorded at
Ex.07, who denied all the allegations leveled against him by the
prosecution and claimed to be innocent, however, he did not opt to
examine himself on oath or produce witnesses in defence.
7. Learned D.D.P.P. for the State argued that prosecution
witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
8. Learned counsel for the accused, on the other hand,
argued that prosecution case is highly doubtful contending further that
there is no cogent evidence with the prosecution and that P.Ws
examined have contradicted to each other on material facts. He further
argued that the accused are innocent, he was arrested from Jhudo City,
then he was made half fry then involved in this false case, therefore,
they may be acquitted from the charge.
9. I have heard learned D.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-
(i) Whether on 21.01.2019 at 1915 hours at Mir Garden Mor,
Rehman Town, Hyderabad, accused was arrested by police
party headed by ASI Ali Ahmed Solangi of P.S Pinyari,
Hyderabad and was found in possession of an unlicensed
30-Bore pistol without number alongwith magazine
containing four live bullets in presence of mashirs?

(ii) What offence if any, has been committed by the accused?.

My findings on points (I) and (II) are as under:-
FINDINGS
POINT NO.I Doubtful/Not proved.

POINT NO.II Accused is acquitted U/s 265-H(i) Cr.P.C.

REASONS
POINT NO.I
10. To prove its case, prosecution examined 03 witnesses out
of which PW-1 and 02 are examined as star witnesses of arrest and
recovery. These two witnesses have seriously contradicted to each
other on material aspects of the matter regarding the mode of arrest
and recovery. PW-1 deposed that accused on watching police party
started running towards his backside, however, he was apprehended
after he covered about one furlong from the place where he was seen
first whereas PW-2 deposed otherwise that the accused watching the
police party started running towards his right side and was
apprehended after he covered of about 10 paces from the place where
he was seen first. PW-1 deposed that he recovered the pistol from the
left side fold of Shalwar of the
-3-
accused whereas PW-2 spoken otherwise that it was recovered from
right side fold of Shalwar of accused. PW-1 deposed that the hands of
the accused were tied with towel whereas PW-2 deposed otherwise
that the hands of the accused were handcuffed with cuffs. PW-1
deposed that he prepared the memo of arrest and recovery by sitting
on the front seat of mobile whereas PW-2 deposed differently that the
memo of arrest and recovery was prepared by complainant by keeping
on the bonnet of mobile. In addition to this, both these PWs failed to
produce on record the Roznamcha entry by which they left Police
Station. So much so, they even remained silent as to by which entry of
Roznamcha Register and at which time they left Police Station. So far
evidence of PW-3 is concerned, he in chief claimed that he conducted
the investigation, sent the property to the expert vide letter dated
28.01.2019 and after concluding investigation he submitted challan,
however, he in his cross watching the letter by which he sent the
property to the expert produced on record at Ex.5/A deposed that its
issuance date is 25.01.2019 and not 28.01.2019. He admitted that
property was sent to expert on 25.01.2019 through PC Imdad in
person, however, he after watching expert report Ex.5/A, deposed that
it was received by the expert on 28.01.2019 and not on 25.01.2019. In
view of the above discussion, I am of the considered view that
prosecution has failed to prove the point under discussion, therefore,
same is answered in negative.
POINT NO.II
11. In view of the aforementioned appraisal of evidence, I am
of the humble view that the prosecution has miserably failed to bring
home the charge against the accused beyond any shadow of
reasonable doubt, hence, accused Waqar Ahmed S/o Nisaruddin Ansari
is given benefit of doubt and stands acquitted of the charge U/s 265-
H(i) Cr.P.C. He is present on bail, his bail bond stands cancelled and
surety is discharged.
Pronounced in open Court this 22nd of April 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
CASE PROPERTY ORDER U/S 517 CR.P.C
 The case property shown in the charge sheet viz. an
unlicensed 30-Bore pistol alongwith magazine and four live bullets be
deposited in District Armoury for its disposal according to law after
expiry of appeal period.
Dated this 22nd of April, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.

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Document Code: 7AD0D1D09F267DCF16281703BEDAF88D
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,

HYDERABAD.

Succession Application No.98 of 2019

Mst. Arbab Khatoon Wd/o Late Mukhtiar Ahmed Shaikh

Adult, Muslim, R/o at present M.B Shora Goth
Main Jamshoro Road Qasimabad Hyderabad…………...………………….Applicant

Versus

1. Mushtaque Ahmed S/o Late Mukhtiar Ahmed Shaikh

2. Abdul Manan S/o Late Mukhtiar Ahmed Shaikh
3. Mst. Gulshan Javed D/o Late Mukhtiar Ahmed Shaikh
4. Luqman Hussain S/o Late Mukhtiar Ahmed Shaikh
5. Laeeque Ahmed S/o Late Mukhtiar Ahmed Shaikh
6. Mst. Shagufta Parveen D/o Late Mukhtiar Ahmed Shaikh
7. Riaz Ahmed S/o Late Mukhtiar Ahmed Shaikh
8. Ashfaque Ahmed S/o Late Mukhtiar Ahmed Shaikh
9. Bilal Ahmed S/o Late Mukhtiar Ahmed Shaikh
10. Mst. Asia D/o Late Mukhtiar Ahmed Shaikh
11. Mst Erum Parveen D/o Late Mukhtiar Ahmed Shaikh
All Adult, Muslim, by caste Shaikh
R/o M.B. Shora Goth, Main Jamshoro Road
Qasimabad Hyderabad
12. The General Public at large
to be served through publication…………………………………Opponents.
Mr. Asghar Ali Chandio, advocate for the applicant

ORDER
23.04.2019
This order shall dispose of present succession application
filed U/s 372 of Succession Act, 1925 by the applicant in which it is
stated that deceased Mukhtiar Ahmed Shaikh S/o Ahmed Saffar Shaikh
died on 05.06.2013 leaving behind him applicant and opponents Nos.1
to 11 as his surviving legal heirs. The deceased during his lifetime was
holding State Life Insurance Policy bearing No.607043820-7 with
amount of Rs.320,884.00/- in State Life Insurance Corporation of
Pakistan, Hyderabad, such schedule is annexed with the application.
The applicant approached the concerned bank for issuance of
certificate of shown account but to no avail.

In support of the case, the affidavits of two independent

witnesses namely Asif Ali S/o Abid Ali and Sheraz Gul Shaikh S/o Faiz
Muhammad Shaikh are filed, who have stated that there is no other
legal heir of deceased except the applicant and opponent Nos.1 to 11.
Apart from this, opponent No.7 filed power of attorney on behalf of
opponents Nos.1 to 6, 8 to 11 and so also his affidavit of no objection
on his as well as on behalf of above opponents in favour of applicant.
 -2-

Heard learned counsel and perused the material available

on record.

The applicant has prayed for succession certificate in

favour of applicant and opponents Nos.1 to 11 to receive the amount
from the above Corporation as shown in the schedule annexed with
application. The notice was published in daily newspaper “THE DAILY
IBRAT” dated 20.03.2019, however, nobody has come forward to
object to the prayer made by the applicant. In addition to this, report
was called from Mukhtiarkar concerned who vide his letter dated
17.04.2019 reported that deceased died leaving behind the applicant
and opponents Nos.1 to 11 as his legal heirs. This is what which is
reported by SHO Police Station Baldia, Hyderabad vide letter dated
15.04.2019 whereas Deputy Director NADRA Hyderabad Zone in his
report dated 21.03.2019 has reported that applicant, opponents Nos.1
to 4, 6, 7, 9 are surviving legal heirs of deceased Mukhtiar Ahmed
Shaikh. Be that as it may, the applicant has not concealed any fact
rather has given all the names of her children which fact is admitted by
the opponent No.7, the attorney of remaining opponents. In addition to
this, the Manager (PHS) State Life Insurance Corporation of Pakistan,
Hyderabad Zone in his report dated 05.04.2019 stated that the
deceased was holding State Life Insurance Corporation policy bearing
No.607043820-7 with amount of Rs.320,884.00/- as on 05.04.2019.

Record shows that there is no impediment nor any will has

been found. Therefore, for the aforesaid reasons, the application is
allowed. The Accountant District and Sessions Court, Hyderabad is
appointed as Commissioner with directions to withdraw amount of
Rs.320,884.00/- lying in State Life Insurance Corporation policy bearing
No.607043820-7 from State Life Insurance Corporation of Pakistan,
Hyderabad Zone and disburse the same to the heirs of deceased
Mukhtiar Ahmed Shaikh i.e. applicant and opponents Nos.1 to 11 as
per their respective shares according to Muhammadan Law subject to
furnishing P.R. Bond of the applicant in equivalent amount shown in
the balance of the deceased and such report be submitted before this
Court within 30 days. The Succession Application stands disposed of
accordingly.

Pronounced in open Court.

Given under my hand and the seal of this Court on this 23 rd day
of April, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE, HYDERABAD
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Document Code: A9F9A368C07ACCCEDED44D45ECCD20AF

IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,

HYDERABAD.

Civil Appeal No.154 of 2018

Mst Makhan Wd/o Malhoo

Adult, Muslim, R/o. Village Ahmed Khan Perhyar
Tando Jam Deh Rahooki
Taluka & District Hyderabad………………………..………………...

………………...Appellant.

VERSUS

1. Federation of Pakistan
through Chairman NADRA at Islamabad

2 Regional Director NADRA G.O.R. Colony Hyderabad

3 Assistant Director NADRA

State Life Building Thandi Sarak Hyderabad…………………………

Respondents.

Mr. Mangal Meghanwar, learned counsel for the appellant.

Mr. Habib-ur-Rehman, Law Officer of NADRA for respondents.

J U D G M E N T.
24-04-2019.

This Civil Appeal is directed against the judgment and

decree dated 04.09.2018, passed by learned IVth Senior Civil Judge,
Hyderabad, in F.C.Suit No.724 of 2018 (re-Mst. Makhan Vs. Federation
of Pakistan & others), whereby the learned trial Court dismissed the
suit of appellant.
2. The appellant/plaintiff Mst. Makhan filed above suit for
Declaration against respondents/defendants with the following
prayers;-
(a) To grant a decree in favour of plaintiff directing to the
defendants to correct name of the plaintiff as Makhan Wd/o
Malhoo instead of Safi W/o Galoo in CNIC of the plaintiff as
per her MNIC;

(b) Costs of the suit saddled upon the defendants;

(c) Any other relief(s) which this Honourable Court deems fit,
just and proper in favour of the plaintiff;

3. It is, inter alia, stated in the plaint that the plaintiff is an

uneducated woman. The actual name of plaintiff is Mst. Makhan Wd/o
Malhoo which is also mentioned in her old MNIC, but the defendants
while issuing CNIC wrongly mentioned her name as Safi W/o Galoo. The
plaintiff for making such correction approached the defendants but
defendants flatly refused and advised her to approach the Court of law
for getting such declaration, hence, plaintiff filed the instant suit with
above prayers.
 -2-

4. After service of notice, respondents/defendants filed their

joint written statement wherein they denied the allegations leveled
against them by stating that in the year 2004, the plaintiff on the basis
of MNIC bearing No.453-57-224522 applied for getting CNIC and
submitted CNIC Form bearing No.HD00212462 with her thumb
impression and photograph showing her name as Safi W/o Galoo and
not Mst. Makhan W/o Malhoo, and on such information provided by the
plaintiff, the defendants issued CNIC bearing No.41305-8375794-0 to
the plaintiff and after receiving the same, she remained satisfied and
kept mum till filing of the instant suit, as such plaintiff has accrued no
cause of action nor her suit is maintainable in law and further it is
barred by Sections 40 of NADRA Ordinance 2000, 114 of Quanoon-e-
Shahadat Order 1984, 114 Estoppel and Section 42 of Specific Relief
Act and suit is liable to be dismissed with costs.
5. From the pleadings of the parties, following issues were
framed by learned trial Court.
I SSUES

1. Whether suit is maintainable under the law?

2. Whether correct name of plaintiff is Makhan Wd/o Malhoo
and not Safi W/o Galoo?
3. Whether plaintiff is entitled for any relief?
4. What should the decree be?

6. Learned counsel for appellant argued that the appellant

received her CNIC in the year 2004 which was issued on the basis of
her MNIC bearing No.452-50-143846 which was mentioning her correct
name as Mst. Makhan W/o Malhoo for which the plaintiff approached
the NADRA officials and requested them to correct such figure and
issue fresh CNIC but they refused on the ground that the CNIC of the
plaintiff was issued on the basis of MNIC bearing No.453-57-224522.
He further argued that such MNIC was manufactured by the NADRA. He
further argued that the plaintiff adduced her evidence and so also
examined her son but the trial Court erred in law by not appreciating
such evidence. He lastly argued that the plaintiff did not claim any
such right or interest in seeking correction in the CNIC which may
adversely affect the right of NADRA, therefore, the appeal as prayed
for, may be allowed and suit decreed. In support of his contention he
relied upon case law reported as SBLR 2016 Sindh 319, PLD 2012
Lahore 378.
7. On the other hand, learned Law Officer for NADRA argued
that the application form which is produced on record by DW-1
Muhammad Aslam at Ex.11/1 shows the MNIC number as 453-57-
224522 which was surrendered by the plaintiff and on the basis of this
MNIC, the CNIC questioned was issued in
 -3-
the year 2004 and the plaintiff getting her satisfied kept the same with
her for a period of about 15 years and thereafter in the year 2017 she
awaken from deep slumber and filed the present suit that the CNIC
issued to her in the year 2004 was wrong. He further argued that
plaintiff in her evidence herself deposed on oath that on the basis
MNIC, her CNIC was issued with correct particulars and after expiry of
such CNIC, she again got issued her second CNIC, however, with wrong
names but she has not produced on record such CNIC. He lastly argued
that there is no question of change of birth in this case but the entire
scenario which was appearing on the MNIC of the plaintiff would be
changed, if her CNIC as prayed for is issued and the same shall
seriously affect the right of NADRA, therefore, the learned trial Court
given lawful judgment which does not call for interference by this
Court.
8. I have heard learned counsel for the parties and gone
through the material available on record including the case laws relied
upon by learned counsel for respondent.
Now point for determination of the lis, are as under:

POINTS
(i) Whether impugned judgment and decree dated
04.09.2018 require any interference of this Court?.
(ii) What should the judgment be?

My findings on points (I) and (II) are as under:-

FINDINGS
POINT NO.I In negative.
POINT NO.II Appeal dismissed.

REASONS

POINT NO.I

9. The grievance of the appellant/plaintiff as disclosed in the

plaint is that she obtained her CNIC bearing No.41305-8375794-0,
Ex.8/2 on the basis of her old MNIC bearing No.452-50-143846, Ex.8/1
but the NADRA authorities wrongly printed her name as Safi and
husband’s name as Gallo thereon instead of her correct name as Mst.
Makhan and husband’s name as Malho which were appearing on her
above old MNIC. The defendants taken plea that they issued CNIC to
the plaintiff in the year 2004, on the basis of her old MNIC bearing
No.453-57-224522 which was showing her name as Safi and her
husband’s name as Gallo having been surrendered by her and
mentioning its number in her application and that she obtaining the
same CNIC, got satisfied and remained silent till filing of the suit.
 -4-
The plaintiff examined herself and so also her son at Ex.8 &
9 respectively. She in her chief deposed that;
“In year 2004 on the basis of my MNIC I applied for CNIC
before NADRA officials, who issued me CNIC with correct
particulars. After expiry of my first CNIC in year 2017
NADRA official issued me a fresh CNIC wherein they have
wrongly mentioned my name as Safi W/o Gallu instead of
my actual name Makhan W/o Malhoo”.
If it is so; it goes to support the stand taken by the NADRA
that the CNIC issued by them on the basis of her old MNIC bearing
No.453-57-224522 showing her name as Safi and her husband’s name
as Gallo, was correct one having been issued on the information
provided by her in her application Ex.11/1. This computerized
application is exhibited on record by DW Muhammad Aslam Rajput,
who claimed in his evidence that in the year 2004, NADRA issued CNIC
of the plaintiff on the basis of her old MNIC as per information provided
by her in application Ex.10/1 in which she herself mentioned her name
as Safi W/o Gallo and not Mst. Makhan W/o Malhoo. However, this
particular statement and application Ex.10/1 went unrebutted and un-
challenged as the counsel for plaintiff did not challenge it in cross that
such statement particularly document Ex.10/1 is false or otherwise. A
minute look at this document shows that it mentions number of her old
MNIC as 453-57-224522, and the same also bore the picture of plaintiff
and so also her thumb impression. This document further mentions her
name as Safi W/o Gallo and residential address as Village Sekhat
Matiari Sekhat. The MNIC Ex.8/1 produced by the plaintiff not only
differs as to number which is appearing in the application filed by her
before NADRA officials but it also shows her different name as Mst.
Makhan, her husband’s name as Mallo (Late) and address as village
Ahmed Khan Parheyar near Tando Jam Deh Rahoki Taluka and District
Hyderabad. Thus, the learned counsel for plaintiff has failed to show
any illegality in the impugned judgment and decree questioned
through present appeal. As regards the case laws (supra) relied upon
by the learned counsel for appellant reported as SBLR 2016 Sindh 319
[Mst. Roquaiya Farid Vs. Federation of Pakistan & another] and PLD
2012 Lahore 378 [Muhammad Salah-ud-Din Vs. NADRA], the same are
in respect of correction of father’s name of petitioners whereas present
is the case in which plaintiff has sought correction in her name,
husband’s name and so also residence. The third one case law relied
upon by learned counsel for appellant reported as 2016 YLR 323
[Sindh] (Imran Khan Vs. Federation of Pakistan & 3 others) in my
humble opinion is also quite distinguishable from the facts and
circumstances of the case in hand.
10. In view of above discussion, I am of the humble opinion
that the judgment and decree passed by learned trial Court do not
require any interference by this Court. I therefore, answer point No.1 in
negative.
 -5-

POINT NO.II
11. In the light of the discussion aforesaid, the impugned
judgment and decree passed by learned trial Court do not call for
interference by this Court. Accordingly, the instant appeal is dismissed
and impugned judgment and decree dated 04.09.2018 are upheld. The
parties to bear their own costs. Decree to follow the judgment. The
office is directed to send back the R & Ps to learned trial Court and
assigned the file to record.
Announced in open court,
Given under my hand & seal of this Court, this the 24th day of April, 2019

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
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AD319F2947094219C41564A560428622
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.

Civil Appeal No.18 of 2018

Mst Shagufta Parveen D/o Late Abdul Ghaffar

Muslim, Adult, R/o House No.B-249, Unit No.10
Latifabad Hyderabad …….…………....
………………………………………………….APPELLANT.

Versus

Abdul Kalam S/o Late Abdul Ghaffar

Muslim, Adult, R/o House No.B-249, Unit No.10
Latifabad Hyderabad.
…………………………................................RESPONDENT.

Mr. Qazi Intikhab Azam, learned counsel for

appellant.
Mr. Ghulam Sarwar Qureshi, learned counsel for
respondent.

J U D G M E N T.
26-04-2019.

This Civil Appeal is directed against the judgment and

decree dated 22.12.2017, passed by learned IVth Senior Civil Judge,
Hyderabad, in F.C.Suit No.578 of 2014 (re-Mst. Shagufta Parveen Vs.
Abdul Kalam), whereby the learned trial Court dismissed the suit of
appellant/plaintiff.
2. The appellant/plaintiff Mst. Shagufta filed above suit for
Specific Performance of Contract and and Injunction against
respondent/ defendant, with the following prayers;-
(a) To direct the defendant to execute final sale deed in
respect of suit property viz House No.B-249, Unit No.10,
Latifabad Hyderabad after receiving remaining amount of
Rs.28,00,000/- (Rupees Twenty Eight lacs only) from the
plaintiff, in case of failure from defendant side, Nazir of this
court may be appointed to get sale deed executed in
favour of the plaintiff;

(b) To grant injunction restraining the defendant from sale,

alienating, mortgage, transfer the property shown in Para
(a) and not to dispossess the plaintiff from it or creating
3rd part interest himself, through his heirs, agents,
subordinates, assign in any manner whatsoever;

(c) Costs of the suit be saddled upon the defendant;

(d) Any other relief, which this Honourable Court may deems,
fit, and proper may be awarded to the plaintiff;
 It is inter alia pleaded in the plaint that the defendant was
the owner of suit property bearing House No.B-249, admeasuring 150
sq.yards, situated at Unit No.10, Latifabad Hyderabad, which was sold
by him through
 -2-

agreement to sale dated 26-9-2012 to the plaintiff against sale

consideration of Rs.30,00,000/- out of which plaintiff paid him token
money of Rs.200,000/- and for remaining amount of Rs.28,00,000/- it
was settled to be payable within one year while the physical
possession of suit property was already lying with the plaintiff. It is
further pleaded that after expiry of stipulated period, the plaintiff time
to time approached the defendant to receive the remaining amount
and execute the sale deed but he kept him on false hopes of
arrangements of the documents. Further, the plaintiff spent
Rs.500,000/- over construction with the hope that defendant will
execute sale deed in her favour but after some months defendant
finally refused to execute the same and then plaintiff came to know
that defendant is creating third party interest, hence, plaintiff filed the
instant suit.
3. After service of notice, respondent/defendant filed his
written statement wherein he denied the allegations leveled against
him by stating that the plaintiff being real sister of defendant is
residing at ground floor of the suit property alongwith her brother
Abdul Hanif, he has not executed sale agreement dated 26-9-2012
which is bogus one nor received Rs.200,000/- from plaintiff as token
amount, hence the defendant reserves right to evict them from suit
property. Further that it is falsely stated that both parties settled that
remaining amount of Rs.28,00,000/- will be paid pay by plaintiff to
defendant. It is further stated that plaintiff and her brother Abdul Hanif
and other sisters had filed FC Suit No.148//2007 for declaration and
injunction, which was dismissed and so also appeal preferred against
the said judgment and decree was also dismissed on 30.10.2013 but
such fact is suppressed by the plaintiff in the instant case and in the
light of this fact the instant suit is barred by Order 2(2) CPC, hence
instant suit is not maintainable and may be dismissed.
4. Out of the pleading of the parties, learned trial Court
framed the following issues;-
1. Whether suit of the plaintiff is not maintainable in
accordance with law?

2. Whether defendant entered into an agreement of sale in

writing on dated 26--9-2012 for sale of suit property i.e.
House No.B-249, measuring 150 sq. yards, situated in Unit
No.10, Latifabad in total sale consideration of
Rs.30,00,000/- in favour of plaintiff?

3. Whether defendant received an amount of Rs.2,00,000/-

from the plaintiff as token money and handed over the
physical possession of suit property to the plaintiff being
already in his possession and both parties were agreed
that remaining amount of Rs.28,00,000/- will be paid by
the plaintiff within one year as mentioned in sale
agreement to the defendant?
 -3-

4. Whether plaintiff while spending an amount of

Rs.5,00,000/- has made construction on upper floor of suit
property?

5. Whether sale agreement dated 26-9-2012 is false, forged

and fabricated document and is liable to be cancelled?

6. Whether plaintiff is entitled for the relief of specific

performance of the contract?

7. Whether plaintiffs are entitled for any relief?

8. What should the decree be?

5. On the above issues, both the parties adduced their

evidence respectively and closed their sides.
6. After hearing the parties counsel, learned trial Court
passed the impugned judgment and decree by which the suit of
appellant/ plaintiff was dismissed.
7. Learned counsel for appellant/plaintiff filed his written
arguments in which he mainly stated that the appellant/plaintiff
purchased the suit property from respondent against sale
consideration of Rs.30,00,000/- in presence of witnesses, paid
Rs.200,000/- as token money, the appellant and respondent are
brother and sister and reside in the same property from a very long
period as appellant is residing on ground floor while respondent is
residing on the upper floor of the suit property and that the suit
property firstly belonged to their father. It is further argued that the
respondent with fake and false document, received the allotment order
without their notice and knowledge and that the appellant has already
performed his part of contract and is further ready to pay balance
amount but it is respondent who refused to discharge his part. It is
further argued that the appellant examined one witness of agreement
to sale who fully supported her claim while other attesting witness
could not be examined due to his non-appearance, therefore, he stated
that appeal may be allowed and judgment and decree be set-aside.
8. On the other hand, learned counsel for respondent argued
that the learned trial Court given its findings rightly, the impugned
judgment does not call for interference by this Court. He argued that in
the first round of litigation in respect of suit property, Muhammad
Hanif with appellant filed Suit No.74 of 2008 for Declaration and
Permanent Injunction against Abdul Kalam, in which they prayed for
mutation of their respective share on the ground that they and so also
respondent are legal heirs of Abdul Ghaffar, who left behind the said
property. He further argued that against judgment passed in above
suit, an appeal filed which too was dismissed on 30.10.2013 and during
pendency of such appeal, on 26.09.2012 a false agreement Ex.33/1
was introduced but such fact was not disclosed before the appellate
Court while
 -4-

hearing appeal No.264/2010 and such agreement to sale is seriously

hit by law of Estoppel because in the earlier suit they claimed that the
suit property was left behind by Abdul Ghaffar and they were share
holders. He further argued that on failure of appellant in that appeal,
she filed present suit on the basis of false agreement to sale which is
not attested by any authority and that only one witness was examined
which is violation of Section 79 of Qanoone-e-Shahdat Order, therefore,
appeal may be dismissed.
9. I have heard learned counsel for the parties and gone
through the material available on record.
Now point for determination of the lis, are as under:

POINTS
(i) Whether impugned judgment and decree 22.12.2017
require any interference by this Court?.

(ii) What should the judgment be?

My findings on points (I) and (II) are as under:-

FINDINGS
POINT NO.I In negative.
POINT NO.II Appeal dismissed.

REASONS
POINT NO.I
10. The very claim of plaintiff as disclosed in the plaint of suit
is that she purchased the suit property on 26.09.2012 by a written
agreement to sale from defendant against the total sale consideration
of Rs.30,00,000/-, out of which she paid Rs.200,000/- to defendant and
remaining amount was settled to be paid within one year while
physical possession was also handed over to her. It is also the claim of
plaintiff that she requested the defendant to receive the remaining
amount and execute the sale deed but she was kept on hopes and
thereafter she heard that defendant was going to create third party
interest in the suit. Against such claim, the defendant stated that the
plaintiff being his sister is residing in the ground floor of suit property
alongwith her brother Hanif, he never sold out the suit property to
plaintiff nor received any token money and that the alleged agreement
of sale is a false document.
11. The plaintiff examined her and PW-2, Malik Muhammad
Jawaid, the one of attesting witness of agreement to sale while the
other attesting witness of agreement was not examined for which
learned counsel for plaintiff argued that he did not appear in Court.
However, record is silent that any effort was made by the plaintiff or
she ever requested for Court assistance for production of this witness
so that he could have been examined. If it is so; it is
-5-

violation of Section 79 of Qanoon-e-Shahdat Order 1984 which

provides that such document cannot be used as evidence until two
attesting witnesses at least have been called for the purpose of
proving its execution. Further plaintiff in her cross shown her ignorance
that previously in the year 2005, her brother filed suit in respect of suit
property in which she was plaintiff No.5 which was dismissed and
appeal filed against such judgment bearing No.264/2010 was also
dismissed on 30.10.2013. Copy of F.C.Suit No.74/2008 alongwith
evidence of some witnesses was brought on record by Record Keeper
of Civil Court examined at Ex.44 which transpires that previous suit
was filed by Abdul Haneef in which Mst. Shagufta Parveen, the plaintiff
of present suit was plaintiff No.5 and in that plaint it was pleaded that
the legal heirs of deceased Abdul Ghafoor viz. plaintiffs, defendant
Abdul Kalam and other children of deceased were exclusive owners of
the suit property which was left behind by the deceased and they
being his legal heirs are entitled to receive their respective shares and
that allotment order dated 27.03.1974 in favour of respondent is illegal
and nullity in the eyes of law. If it is so; the appellant/plaintiff did not
disclose a single fact about such in litigation present suit which shows
that the appellant /plaintiff did not come with clean hands and
suppressed the real facts from the Court. Further if it is so; how she
purchased her own share for which she was otherwise entitled to get it.
In addition to this, the appellant/plaintiff allegedly purchased the suit
property during pendency of appeal No.264/2010 against sale
consideration for which she may blame herself rather the respondent
as it is well settled proposition of law that a transaction of sale during
pendency of litigation would not affect the rights of any party to the
litigation and further the same exercise shall be having no effect in law
and if someone opts to do, he shall be responsible for such deeds.
Reliance in this regard is place upon the case law reported as 1999
SCMR 2874. Thus, the point under discussion is answered in negative.

POINT NO.II
13. In the light of the discussion aforesaid, the impugned
judgment and decree passed by learned trial Court do not call for
interference by this Court. Accordingly, the instant appeal is dismissed
and impugned judgment and decree are maintained. The parties to
bear their own costs. Let the office to prepare such decree and
assigned the file to record.
Announced in open court,
Given under my hand & seal of this Court, this the 26th day of April, 2019

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
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Code: D2D5BA33B70B88AEF2B5DBEC1C34D566
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
Civil Revision Appln. No.11 of 2017
1. Rafique S/o Faqeer Muhammad
S/o Faqeer Muhammad
1. Muhammad Shareef
Both sons of Faqeer Muhammad
Adults Muslims R/o House No.58, R.S 527
situated at Gulshan-e-Fareed Housing Scheme
Deh Tapa Gujo Taluka District
Hyderabad………………………………….APPLICANTS.
Versus
Mst. Parveen Bano W/o Sher Muhammad
Adult Muslim R/o House No.112
Gulshan-e-Fareed Noorani Basti,
Hyderabad……………………………………………................................RESP
ONDENT.

Mr. Mehran, learned counsel for

appellants/applicants.
Mr. Muhammad Javed, learned counsel for
respondent.

O R D E R.
29-04-2019.
This order shall dispose of the instant Civil Revision
Application which is directed against the order dated 10.12.2016,
passed by learned VIIIth Civil Judge, Hyderabad, in Civil Execution
Application No.01 of 2016 (re-Mst. Parveen Bano Vs. Muhammad
Shareef and another), whereby the learned trial Court allowed the
execution application as prayed for.
2. The respondent/plaintiff Mst. Parveen Bano filed above suit
for Declaration, Possession and Mesne Profit stating that she
purchased a plot No.58 measuring 600 Sq ft, R.S. No.527 situated in
Gulshan-e-Fareed Housing Scheme, by a registered sale deed No.1102
dated 16.03.2010 in the sum of Rs.40,000/-, surrounded by boundary
wall wherein one room was constructed. About a month back, plaintiff
visited the plot and found it in possession of defendants, whom she
asked to vacate the same but they refused. She approached the
concerned Police Station but was advised to approach Civil Court,
hence, plaintiff filed the instant suit with the following prayers;-
(a) The defendant be directed to handover possession of Plot
No.58 through the Bailiff of the Court and declare the
plaintiff as owner;
 (b) The cost of the suit;

(c) Any other relief may be granted including mesne profit as

this Honourable Court may deem fit and proper.

3. After service of notice, respondent/defendants filed their

written statement wherein they denied the allegations leveled against
them by stating that government of Sindh is necessary party because
the sale deed shown in

-2-
the plaint is a false document and the same is allegedly registered with
Sub-Registrar. It is further stated that the suit property is different to
that of the property which is possessed by the defendants and that the
defendants have no concern with the suit property nor they are in its
possession as they purchased a house through written agreement to
sale from one Mst.Dhayani W/O Mehboob on 31.01.2014 in presence of
witnesses when possession was also handed over to them. It is further
stated that the suit property shown in the sale deed is also having
different number to that of the house of defendants, therefore, the
plaintiff is not entitled for any relief and that the Court has no
jurisdiction to proceed with it and the same be dismissed.
4. Out of the pleading of the parties, learned trial Court
framed the following issues;-
1. Whether the suit as framed is maintainable under the law
and not hit by the living laws?
2. Whether the plaintiff has any cause of action for judicial
redress?
3. Whether the plaintiff is entitled for relief claimed?
4. What should the decree be?
5. On the above issues, both the parties adduced their
evidence respectively and closed the side in evidence.
6. After hearing the parties, learned trial Court passed the
impugned judgment and decree whereby, partly decreed and partly
dismissed the suit.
7. Learned counsel for applicants argued that the learned trial
Court erred in law by passing the impugned order because he
challenged the same by filing present revision application in which he
also filed application for suspension of the operation of execution
application. He further argued that no notice was served upon the
applicants and further the impugned order was passed by learned trial
Court in a void judgment, therefore, the revision application may be
allowed and impugned order be set aside. He further argued that the
revision is filed within the time of limitation as the order was passed on
10.12.2016, about 08 days were consumed by the Office in delivering
copies to him because on 20.12.2016 application was filed while the
copies delivered to him on 28.12.2016 and after receiving the same he
filed the revision application on 14.01.2017 which is within the time.
8. On the other hand, learned counsel for respondent argued
that the notices were served upon the applicants but inspite of fact
they did not appear and further the revision application filed is time
barred, therefore, the same may be dismissed as the order passed by
learned trial Court does not suffer from any illegality and irregularity.
In support of his arguments, he relied upon the case law reported as
2009 YLR 2423 (High Court AJ&K), 2009 YLR 2912 Lahore and PLD
1980 675 Lahore.

-3-

9. I have heard learned counsel for the parties at length and

gone through the material available on record including the case laws
relied upon by the learned counsel for respondent.
10. Admittedly, the order impugned through above revision
application was passed in Execution Application No.01 of 2016 which
was filed for satisfaction of judgment and decree dated 14.11.2015
passed in Civil Suit No.2 of 2015. It is also an admitted position that
the applicants filed civil appeal No.4 of 2016 against the very judgment
and decree in which execution application was filed and allowed, has
been allowed and judgment and decree dated 14.11.2015 are set-
aside by judgment dated 29.04.2019 by this Court in the above civil
appeal, therefore, the present revision application also stands allowed
and order dated 10.12.2016 is set-aside accordingly, however, with no
order as to cots.
Announced in open court,
Given under my hand & seal of this Court, this the 29th day of April, 2019

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
As far as the plea taken by the respondent that the appeal is not
maintainable as it is filed after the delay of about 08 days and the
same is not explained. So far this argument of the respondent counsel
is concerned, admittedly the first page of the judgment shows the date
as 14.11.2015 while the last page of the judgment which shows that
the judgment was given and announced on 24.11.2015. It is also
matter of record that copy of judgment and decree annexed with the
appeal shows that the appellant applied for certified true copy on
05.12.2015 and copies delivered to him on 09.12.2015 while the
appeal is preferred on 05.01.2016. It is also matter of record that for
about 04 days were consumed by the office in delivering the copies.
Since there are two dates appearing in the judgment and the same are
still intact, therefore, the later date viz. 24.11.2015 will be the date
from which the time will be calculated, 04 days consumed by the office
also to be excluded from such period, thus, the appellant was required
to file appeal on 29.12.2015 while the appeal was filed on 05.01.2016
after delay of about 07 days. The plea taken by the defendant’s
counsel in his arguments that he did not file application for condoning
such delay specially for the reason that the learned trial Court passed
a void order. He also placed his reliance in this regard on the case law
reported as 2007 SCMR 914 Plasitum-C, 1996 SCMR 856 Plasitum-A.
He also in his argument pointed out that the judgment delivered by the
trial Court mentions two dates, therefore, this is a judgment which is to
be said as void judgment. A minute look at the judgment admittedly it
transpires that the first page of the judgment do mention as
14.11.2015 while the last page of the judgment do mention as
24.11.2015 and both the dates are still intact because R & Ps is lying in
this Court and same do not reflect that the two dates which may be
said to be typographical mistake are corrected as provided under the
law. A minute look at the findings given at page No.3 of the judgment
mentioning specifically four issues out of which issues Nos.1 to 3 were
replied as under while through issue No.4 decreed the suit. If it is so;
the second page of the judgment mentions in all three issues while the
R & Ps shows that four issues were framed particularly issue No.1 was
with regard to maintainability of the suit, the second one was settled to
decide as to whether the plaintiff was having any cause of action to file
the present suit, the third one was with regard to relief sought by the
plaintiff and fourth one was with regard to judgment to be delivered
whereas the discussion is made only in respect of issues Nos.1 to 3
which too the same are introduced and discussed presuming issue
No.2 as the one which was regarding the entitlement of the plaintiff for
relief of declaration, possession and mesne profit whereas per R & Ps
the issue No.2 was peculiarly settled to decide as to whether the
plaintiff was having cause of action to file the suit. It is also noted that
in fact issue No.2 though was framed is not discussed and further page
No.2 of the impugned judgment mentions three issues only in which
issue No.2 is mentioned which reads that “whether the plaintiff is
entitled for the relief claim” whereas issues settled by the Court vide
Ex.16 (page 67) mentions issue No.2 which reads as “whether the
plaintiff has any cause of action for judicial redress”. Thus, the above
are the defects in the judgment due to which the learned counsel for
respondent in his arguments addressed the judgment as void one.
 HOW TO VERIFY THIS DOCUMENT
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Document Code: B58E1E3A1E0AE14F495C9194D750DB65

IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,

HYDERABAD.
Civil Appeal No. 57 of 2017
Saleem Qureshi S/O Nanngho Khan,
Adult, Muslim, R/O House No. F/1153,
Kazi Abdul Qayoom Road Hyderabad……….

…………………………………….APPELLANT.

Versus
Mst. Rukhsana @ Shahzadi &
Others…................................RESPONDENTS.

Mr. Abdul Aziz A.Sheikh, learned counsel for

appellants.
Mr. Aqeel Ahmed Siddiqui, learned counsel for
respondent-1.

O R D E R.
02-05-2019.

Today the above civil appeal was fixed for service upon the
respondents No.2 to 6 but office did not issue process for want of
costs.
Learned counsel for the appellant has appeared and filed
statement which is taken on record at Ex.7, whereby he withdrawn the
above civil appeal on the ground that the appeal was filed against the
mistake appeared in the impugned judgment and such mistake is
corrected by the trial Court.
Learned counsel for respondent No.1 getting notice argued
that no doubt the correction impugned in the above appeal had been
corrected by the trial Court but such order was challenged by the
respondent No.1 by filing appeal, which is pending adjudication before
the learned 8th Additional District Judge, Hyderabad. Be that as it may,
since the withdrawal of above appeal is without any condition,
therefore, civil appeal No.97/2017 stands dismissed as withdrawn,
however, with no order as to costs.
Announced in open court,
Given under my hand & seal of this Court, this the 02nd day of May, 2019
 (MUHAMMAD FAZIL BOHIO)
VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
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Document Code: 0469C376DE0F4C92EC4C282C0154D5BD

IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,

HYDERABAD.
Succession Application No.133 of 2019
Mehran Saleem S/o Muhammad Saleem
Muslim, adult, R/o Mohallah Khursheed Town
Hala Naka, Hyderabad………………………..……………...………………….Applicant

Versus

1. Aisha Saleem D/o Muhammad Saleem

2. Muhammad Nasir S/o Muhammad Saleem
3. Fatima D/o Muhammad Saleem
4. Gul Khatoon Wd/o Ali Gohar Wagan
All Muslims, adults, R/o Mohallah Khursheed Town
Hala Naka Hyderabad
5. General Public at Large………………………………………………Opponents.
Mr. Khait Kumar Khatri, advocate for the applicant

ORDER
29.04.2019
This order shall dispose of present succession application
filed U/s 372 of Succession Act, 1925 by the applicant in which it is
stated that deceased Muhammad Saleem S/o Ali Gohar Khan died on
28.11.2010 leaving behind him applicant and opponents Nos.1 to 4 as
his surviving legal heirs. The deceased during his lifetime was
maintaining two Accounts bearing 0077-01-01-6257-2 with balance of
Rs.1274/- and Account No.0007702010103852 with balance of
Rs.9,74,944.01/- in MCB Market Chowk Branch, Hyderabad, such
schedule is annexed with the application. The applicant approached
the concerned bank for providing bank statements and issuance of
certificates of shown accounts but to no avail.

In support of the case, the affidavits of two independent

witnesses namely Abdul Aleem S/o Muhammad Ayoob and Abdul
Hameed S/o Abdu Majeed are filed, who have stated that there is no
other legal heir of deceased except the applicant and opponent Nos.1
to 4. Apart from this, affidavits of opponent Nos.1 to 4 are also filed
extending no objection in favour of applicant.

Heard learned counsel and perused the material available

on record.

The applicant has prayed for succession certificate in

favour of applicant and opponents Nos.1 to 4 to receive the amount
from the above bank as shown in the schedule annexed with
application. The
 -2-
notice was published in daily newspaper “KAWISH” dated 03.04.2019,
however, nobody has come forward to object to the prayer made by
the applicant. In addition to this, report was called from Mukhtiarkar
concerned who vide his letter dated 15.04.2019 reported that
deceased died leaving behind the applicant and opponent No.1 to 4 as
his legal heirs. This is what which is reported by SHO Police Station
Pinyari, Hyderabad vide letter dated 17.04.2019 whereas Deputy
Director NADRA Hyderabad Zone in his report dated 15.04.2019
reported that applicant and opponents Nos.1 to 3 are legal heirs of
deceased. In addition to this, the Manager MCB Bank Limited Market
Chowk Branch, Hyderabad in his report dated 16.04.2019 stated that
the deceased was having two Accounts viz. Account
No.0007702010103852 with amount of Rs.974,944.01/- and Account
No.0007701010062572 with amount of Rs.1,294/- as on 16.04.2019.

Record shows that there is no impediment nor any will has

been found. Therefore, for the aforesaid reasons, the application is
allowed. The Accountant District and Sessions Court, Hyderabad is
appointed as Commissioner with directions to withdraw amount of Rs.
974,944.01/- lying in Account No.0007702010103852 and Rs.1,294/-
lying in Account No.0007701010062572 from MCB Bank Limited
Market Chowk Branch, Hyderabad and disburse the same to the heirs
of deceased Muhammad Saleem i.e. applicant and opponents Nos.1 to
4 as per their respective shares according to Muhammadan Law
subject to furnishing P.R. Bond of the applicant in equivalent amount
shown in the balance of the deceased and such report be submitted
before this court within 30 days. The Succession Application stands
disposed of accordingly.

Pronounced in open Court.

Given under my hand and the seal of this Court on this 29 th day
of April, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE, HYDERABAD
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43825C09DA756D8766F5F666D415272E

IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,

HYDERABAD.
Succession Application No.11 of 2019
Mst. Urooj W/o Waqar Ahmed
D/o Arshad Hussain Late, adults, muslim
R/o Flat No.4, 1st Floor, Capital Plaza,
Hyderabad…………….………………………..……………...………………….Applicant.

Versus

1. Mst. Mahanoor D/o Arshad Hussain Late

2. Mst. Maryam Arshad D/o Arshad Hussain Late
3. Abdul Mannan S/o Arshad Hussain
All adult, muslims, resident of House No.448
Block-C-1, Muhallah, Unit No.8, Latifabad
Hyderabad
4. The General Public at large……………………………………………
Opponents.
Syed Abbas Ali Jaffri, advocate for the applicant

ORDER
06.05.2019
This order shall dispose of present succession application
filed U/s 372 of Succession Act, 1925 by the applicant in which it is
stated that deceased Mst. Farzana Khan Wd/o Arshad Hussain, died on
26.02.2018 leaving behind her applicant and opponents Nos.1 to 3 as
her surviving legal heirs. The deceased during her lifetime was
maintaining four accounts viz. Account Nos.0102360480701 with
amount of Rs.16,752,049.40/- in Al-Baraka Bank, Unit No.7 Latifabad
Branch, Hyderabad, Account No.523311 with amount of
Rs.33,200,000/- lying in J.S. Bank New Clothes Market Branch, Account
No.0010030570820010 with amount of Rs.25,61,790.71/- in Allied
Bank New Cloth Market Branch, Hyderabad and Account
No.0239007900024323 with amount of Rs.1255/- lying in Faisal Bank
Unit No.7 Latifabad Branch, Hyderabad, such schedule is annexed with
the application. The applicant approached the concerned banks for
providing bank statements and issuance of certificates of shown
accounts but to no avail.

In support of the case, the affidavits of two independent

witnesses namely Waqar Ahmed Siddique S/o Aijaz Ahmed Siddiqu and
Malik Muhammad Rafi S/o Malik Muhammad Shafi are filed, who have
stated that there is no other legal heir of deceased except the
applicant and opponent Nos.1 to 3. Apart from this, affidavits of
opponent Nos.1 to 3 are also filed extending no objection in favour of
applicant.
 -2-

Heard learned counsel and perused the material available

on record.

The applicant has prayed for succession certificate in

favour of applicant and opponents Nos.1 to 3 to receive the amount
from the above banks as shown in the schedule annexed with
application. The notice was published in daily newspaper “UMMAT”
dated 18.02.2019, however, nobody has come forward to object to the
prayer made by the applicant. In addition to this, report was called
from Mukhtiarkar concerned who vide his letter dated 22.02.2019
reported that deceased died leaving behind the applicant and
opponent No.1 to 3 as her legal heirs. This is what which is reported by
SHO Police Station Phuleli, Hyderabad vide letter dated 09.03.2019 and
Deputy Director NADRA Hyderabad Zone in his report dated
19.02.2019 reported that applicant and opponents Nos.1 to 3 are legal
heirs of deceased. In addition to this, the Managers Faysal Bank
Limited Latifabad Branch in his report dated 13.12.2018 reported that
deceased was maintaining account No.0239007900024323 with
balance amount of Rs.1,255.20/-, Manager al-Baraka Latifabad Branch,
Hyderabad reported that deceased was maintaining Account
No.0102360480701 with amount of Rs.16,752,049.40/-, Manager JS
Bank Cloth Market Branch, Hyderabad has reported that deceased was
maintaining Account No.523311 with balance amount of Rs.154,512/-
and Manager Allied Bank Limited Domanwah Road, Hyderabad has
reported that deceased was having Account No.0010030570820010
with balance amount of Rs.2,561,451.71/-.

Record shows that there is no impediment nor any will has

been found. Therefore, for the aforesaid reasons, the application is
allowed. The Accountant District and Sessions Court, Hyderabad is
appointed as Commissioner with directions to withdraw amount of
Rs.1,255.20/- from Account No.0239007900024323 lying in Faysal
Bank Latifabad Branch, Hyderabad, Rs.16,752,049.40/- from Account
No.0102360480701 lying in al-Baraka Bank Latifabad Branch,
Hyderabad, Rs.154,512/- from Account No.523311 lying in JS Bank
Cloth Market Branch, Hyderabad and Rs.2,561,451.71/- lying Account
No.0010030570820010 of Allied Bank Limited Domanwah Road,
Hyderabad and disburse the same to the heirs of deceased Mst
Farzana i.e. applicant and opponents Nos.1 to 3 as per their respective
shares according to Muhammadan Law subject to furnishing P.R. Bond
of the
 -3-

applicant in equivalent amount shown in the balance of the deceased

and such report be submitted before this court within 30 days. The
Commissioner Fee is fixed at Rs.3000/- which may be paid by the
applicant to him directly under proper receipt. The Succession
Application stands disposed of accordingly.

Pronounced in open Court.

Given under my hand and the seal of this Court on this 6 th day of
May, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE, HYDERABAD
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.

Civil Appeal No.154 of 2017

Baiyak Khan S/o Aazik Khan

Muslim, adult, Pathan by caste
Resident of Tando Hyder Mohallah
Taluka & District

Hyderabad…………………………………………………………………Appellant.

Versus

1. Mst. Farhat Banue widow of Zahoor Ahmed Khan.

2. Rao Muhammad Hassan Khan s/o Zahoor Ahmed Khan.
3. Mst. Arifa Zahoor daughter of Zahoor Ahmed Khan,
All Muslims, adult by caste Rajput, resident of
House No.B-96, Mohallah Hussain-D, Silver Town,
North Nazimabad, Block-B, Karachi.

4. D.D.O (Revenue), Hyderabad.

5. Mukhtiarkar, Taluka
Hyderabad……………………………………………………Respondents.

Mr. , Advocate for the appellant.

Mr. Nadeem Soomro, DDA for respondents Nos.4 & 5
Mr. , Advocate for respondent No.4

J U D G M E N T.
____-05-2019.

This Civil Appeal is directed against the judgment and

decree dated 27.05.2016 passed by learned VIth Senior Civil Judge,
Hyderabad, in F.C.Suit No.106 of 2015 (Muhammad Hussain Vs.
Province of Sindh & others), whereby the learned trial Court dismissed
the suit.
2. Brief facts of the case are that the appellant/plaintiff
Muhammad Hussain filed above suit for Specific Performance of
Contract, Possession, Mesne Profit and Permanent Injunction stating
that on 14.06.2006 plaintiff got booked a suit flat bearing No.4
admeasuring 859 Sq yards first floor, Shelter Housing and Construction
Company, Station Road, Hyderabad against total sale consideration of
Rs.756,920/- which was paid by the plaintiff to the defendant No.4 and
it was agreed between plaintiff and defendant No.4 that possession of
the suit flat will be handed over to the plaintiff within 16 months from
the date of booking. All the terms and conditions of the sale agreement
were mutually agreed upon by both the parties and signed in presence
of witnesses. It was
 -2-
also agreed that in case of failure of handing over the possession of
the suit flat to the plaintiff, the defendant No.4 was bound to pay its
monthly rent as per market value. After expiry of 16 months, the
plaintiff approached to the defendant No.4 for execution of sale deed
and handing over the possession of suit flat but he avoided and
thereby violated the terms and conditions of the contract. According to
palintff, he came to know that defendant No.4 was going to sale the
suit flat to another person with the help of defendant No.1 though the
plaintiff was its bona fide purchaser. The defendant No.4 committed
cheating and fraud with the plaintiff so also caused mental torture and
loss to him as for eight years, a huge amount has been
usurped/blocked by the defendant No.4 and that, had the plaintiff
invested the said amount anywhere else, he would have earned
handsome benefits. Thereafter on 23.01.2015 plaintiff sent legal notice
to the defendant No.4 but he did not reply. The defendant No.4 is
threatening the plaintiff of alienating, transferring the suit flat to some
other persons with the help of defendant No.1 to 3, hence, plaintiff
filed the present suit with the following prayers;-
(a) This Court may be pleased to direct the defendant No.4 to
execute and get registered sale deed in favour of plaintiff
and hand over the peaceful physical possession of the suit
property i.e. No.4 admeasuring 859 square feet, first floor,
Shelter Housing and Construction Company, Station Road,
Hyderabad before Sub-Registrar City Hyderabad OR in case
of failure of the defendant No.4 to do so, the Nazir or any
other officer of the Court may be directed to execute and
he registered sale deed before Sub-Registrar City
Hyderabad on behalf of the defendant No.4 in favour of the
plaintiff.
(b) This Court may be pleased to direct the defendant No.4 to
pay the mesne profit/monthly rent of sum property i.ee.
No.4, admeasuring 859 sq feet first floor, Shelter Housing
and Construction Company, Station Road, Hyderabad as
per market value from the date of expiry of 16 months
from the date of booking i.e. 14.06.2006 till the finalization
of transaction of the suit property.
(c) This Court may be pleased to grant permanent injunction
against the defendants, restraining them from further
selling out, alienating and transferring or encumbering the
suit property No.4, admeasuring 859 sq feet, first floor
Shelter Housing and Construction Company Station Road
Hyderabad in any manner themselves or through their
men, employees, servants, relatives, agents directly or
indirectly till decision of the suit.
(d) Cost of the suit be borne by the defendants.
(e) Any other relief(s), which this Honourable Court may deem
fit and proper be awarded to the plaintiffs.
3. After institution of the suit, notices were issued to
defendants but they failed to file written statements, hence, service
was held good against them and they were debarred from filing their
written statements.
 -3-

4. In order to prove its case, plaintiff filed affidavit in exparte

proof, he produced original payment receipt at Ex.26/A, original
agreement dated 07.06.2006 at Ex.26/B and original nomination form
in respect of suit property at Ex.26/C respectively.
5. After hearing the plaintiff and his counsel, learned trial
Court vide impugned judgment and decree dated 27.05.2016
dismissed the suit of plaintiff/ appellant.
6. Learned counsel for appellant in his written arguments
argued that appellant/plaintiff examined himself and so also his
witness Wali Muhammad by filing affidavits-in-evidence while his third
witness Wali Muhammad, who also filed affidavit-in-evidence including
that of witness Rao Khalid Pervez but they were not cross examined
deliberately by respondent No.1. It is further stated that suit property
originally belonged to late Zahoor Ahmed, husband of respondent No.1
who had obtained loan from Habib Bank Limited Station Road
Hyderabad in the name of M/s Rajput Associate and after his death,
Bank authorities filed Suit No.3279/1997 which was decreed in which
execution application No.364/1999 filed was also allowed and
thereafter the suit property was fixed on 18.02.2011 for auction when
respondent No.1 deposited the decreetal amount of Rs.517,371/- which
was given to him by appellant plaintiff on the same day. He further
argued that on this date also agreement of sale in presence of Khalid
Road, Iqbal Rai who was manager of respondent No.1 and so also in
presence of Wali Muhammad Memon advocate was executed. It is
further stated that the amount was paid by the appellant/ plaintiff
while receipt was issued in the name of appellant/plaintiff and at that
time the respondent taken responsibility on behalf of respondents
Nos.2 & 3 for executing the sale dated 18.02.2013 directly in favour of
appellant plaintiff who was bonafidy purchaser of suit property. It is
further stated that respondent No.1 agreed to sale the suit land for
Rs.10,00,000/- and in case of non selling the suit land to
appellant/plaintiff respondent No.1 was to pay Rs.20,00,000/-
alongwith other payments/expenditure made by appellant/ plaintiff. It
is further stated that at the time of measurement respondent No.1
handed over the physical possession of suit land to appellant/plaintiff
in presence of witnesses. It is stated that due to negligence of previous
counsel appellant could not produce relevant documents nor those
were in his possession and the appellant being illiterate person could
not collect the same at the time of trial, therefore, this is the
misreading and non-reading of the evidence, therefore, on this point
the case may be remanded back. It is further stated that at the time of
execution of agreement to sale respondent No.1 fraudulently shown
respondents Nos.2 & 3 as minors though at that time were major as
they on 11.01.2012 and 02.03.2012 executed special power of
-4-

attorney to Pevez Alam S/o Ikramullah Khan. It is lastly stated that no

direct evidence of respondent No.1 has been recorded nor marginal
witness Rao Khalid Pervez has been examined the witnesses of
appellant has proved the transaction of loan amount specially
witnesses Wali Muhammad senior advocate to had been paid by
appellant to respondent No.1 before him who purchased the stamp
paper of sale agreement, therefore, appeal may be allowed and case
be remanded back to trial Court to decide the matter after receiving
relevant documents. In support of his contention he filed a list of case
laws showing his reliance on the case law reported as 2017 CLC 495,
PLD 2007 Karachi 358, 2017 CLC 1221, 2017 CLC 317, 1991 SCMR
1981 and 2009 SCMR 326.
7. Learned counsel for respondents also filed his written
arguments while re-urging upon the facts of the case already stated
above, further stated that after consolidating the suits one filed by
appellant which is a leading suit and the other filed by respondent
which is the subsequent suit the trial Court framed issues. The
appellant examined herself and filed affidavit-in-evidence of two
witnesses namely Wali Muhammad and Muhammad Iqbal out of which
Wali Muhammad appeared and cross examined while other witness
Muhammad Iqbal avoided to appear for recording his cross, hence, his
affidavit-in-evidence has not credence in law. He further argued that
respondent No.1 to 3 due to leaving abroad appointed their attorney
Pervez Alam who was examined by the trial Court. The suit filed by
appellant for specific performance of contract on the basis of forged
sale agreement dated 19.02.2011 allegedly executed/signed by
respondent No.1 in respect of entire suit property but the appellant
failed to produce on record this original agreement to sale dated
18.02.2011 though she voluntarily admitted before Court that such
original agreement was in his possession and this is violation of Article
73 of Qanoon-e-Shahadat Order 1984. He further stated that two
attesting witnesses of this document though they are alive are not
examined in that one witness to this document namely Muhammad
Iqbal Rai whose affidavit-in-evidence was filed but he did not come in
witness box of cross examination and thereby his evidence carry no
weight in law. It is further stated that witness Wali Muhammad has
unauthorizedly been examined because he was advocate of
respondent No.1 in banking court in recovery suit filed by the bank,
hence, he was debarred from saying any private communication of his
party which requires penal action against him under legal practitioners
bar council Act and that this witness himself admitted that he is not
attesting witness of agreement to sale. He argued that alleged
agreement to sale is void document as envisaged U/S. 29 of Contract
Act as it is an uncertain document which is even silent as to possession
of the suit property nor it shows the part payment/token money nor it
speaks about payment a single penny by the appellant to the
respondents. It is further stated
-5-

that the appellant in his own claim at Para No.5 himself admitted that
the loan of bank was paid by respondents Nos.2 & 3 and that these
respondents not only cleared the dues of the bank but they are in
possession of such payment vouchers having been executed on record.
He further stated that respondent No.1 expressly denied the execution
of sale agreement and further stated that her signatures on it to be
forged nor she was exclusive sole owner of the suit land in which her
son and daughters were also co-sharers and that this document of
sale is false one. He lastly the trial Court given a just, proper and
judicial judgment/decree holding the alleged agreement to sale,
therefore, the appeal filed may be dismissed with cost. In support of
his arguments he relied upon case laws reported as 2005 SCMR 135,
2002 MLD Karachi 1546, 2015 YLR Peshawar 2470, 2014 CLC
Balochistan 548, 2012 CLC Balochistan 1483, 2015 SCMR 1044, 2011
MLD Lahore 96, 2010 MLD Lahore 1162 and PLD 2006 Lahore 48.
8. Learned DDA for official respondents No.3 & 4, while
supporting the judgment and decree delivered by the learned trial
Court, contended that the official respondents have no interest in the
matter.
9. I have heard learned counsel for the parties and gone
through the material available on record including the case laws relied
upon by learned counsel for respondent.
Now point for determination of the lis, are as under:

POINTS

(i) Whether impugned judgment and decree 27.05.2016

respectively require any interference of this Court?.

(ii) What should the judgment be?

My findings on points (I) and (II) are as under:-

 FINDINGS
POINT NO.I
POINT NO.II

REASONS
POINT NO.I

10.
It is matter of record that the above appeal was filed after the period of
Limitation, therefore, an application U/S 5 of the Limitation Act, 1908
having supported with affidavit was also filed, which was ordered to be
heard and decided along with the main appeal. Admittedly, the learned
trial Court has mainly based its findings in the judgment and decree
assailed through above appeal on the grounds that the agreement to
sale arrived at in between the parties was one which was lacking
ingredients of contract to sale and secondly that the suit filed by the
appellant/plaintiff was barred by law. At Para Nos.2,3 and 4 of the
plaint, it is stated that on 14.06.2006 respondent/defendant No.4
booked a flat No.4 admeasuring 859 Sq ft, first Floor, Shelter Housing
Company, Station Road, Hyderabad to appellant against
-5-
the sale consideration of Rs.756,920/- which was paid up by the
appellant/plaintiff and that it was agreed upon that
respondent/defendant No.4 shall handover the possession to the
appellant/plaintiff within 16 months and after expiry of these 16
months, if respondent/defendant No.4 fails to handover the possession
of the suit flat to the appellant/plaintif, the respondent/defendant No.4
shall pay rent as per market rate to the appellant/plaintiff. This is what
which was deposed by the plaintiff and his same version went
unrebutted as the defendants did not contest the matter. The plaintiff
also produced on record payment receipt at Ex.26/A and agreement to
sale at Ex.26/B. A minute look at the alllaged agreement to sale
Ex.26/B transpires that it was executed on 14.06.2006 and it also
provides a condition that the company shall not handover the
possession of flat to the purchaser within 16 months, the company
shall pay the rent according to rule to the purchaser. This document
bears signatures of marketing manager on behalf of
respondent/defendant No.4, two witnesses and the vendee. Admittedly
the suit was filed by the appellant/plaintiff on 04.02.2015 after the
period of about 07 years and 04 months after those 16 months. If after
expiry of 16 months from the date of execution of sale agreement, the
respondent/ defendant No.4 did not pay the rent of suit flat to the
appellant/plaintiff, he was to file suit within 03 years from those 16
months because time was essence of contract as provided under
Article 113 of the Limitation Act 1908 but he failed to do and if it is so;
the very suit filed by the appellant was barred by law. Not only the suit
was filed with long standing delay but the appeal filed against the
judgment and decree of the learned trial Court, was also filed with
delay of about 06 days as the judgment and decree were passed on
27.05.2016 while the appellant/plaintiff applied for copies on
28.06.2016, after expiry of appeal period. Even thereafter copies
supplied to the appellant on 29.06.2016 while appeal was filed on
04.07.2016 and the explanation behind such delay given in the
supporting affidavit of the application filed U/S. 5 of the Limitation Act,
1908 is that the appellant/plaintiff was not having knowledge as his
previous counsel did not inform him about fate of the suit. A look at the
judgment of the trial Court shows that the same counsel, who has
argued out the present appeal, was representing the appellant/plaintiff
before the trial Court, therefore, to say that his earlier counsel did not
intimate him about the fate of the proceedings, the like explanation is
of no avail to him. Further, it is the case of the plaintiff that he
purchased the suit flat from respondent No.4 by a written agreement
to sale for which he also paid up the entire sale money but he failed to
examine the attesting witnesses of the allaged agreement to sale as
provided U/S. 79 of the Qanun-e-Shahdat Order 1984. In this regard, it
has been held in the case law reported as 2017 YLR Note 33 [Lahore]
that the
 -6-

marginal witnesses of agreement to sale were not produced in the

Court and if it is so; the alleged agreement to sale was inadmissible in
evidence. Not only this, but he also failed to examine the official
witnesses of the custodian department to see as to whether the vendor
was owner of the suit flat or not. Furthermore, the suit filed was also
bad for non-joinder of necessary parties as the respondent No.4
allegedly acted as Marketing Manager on behalf of his principal,
therefore, the principal/owner of the company of respondent No.4 was
necessary party but he was not joined as one of the respondents.
11. In view of above discussion, I am of the humble opinion
that the judgment and decree passed by learned trial Court do not call
for interference by this Court. I therefore, answer point No.1 in the
negative.

POINT NO.II
11. In the light of the discussion aforesaid, the impugned
judgment and decree passed by learned trial Court do not call for
interference by this Court. Accordingly, the instant appeal is dismissed
and impugned judgment and decree dated 27.05.2016 are maintained.
So far sale amount allegedly paid by the appellant vide document
Ex.26/A in respect of the alleged agreement to sale Ex.26/B, the
appellant may exhaust the remedy as provided under Section 65 of the
Contract Act, 1872, if law permits him and if he so desires.The parties
to bear their own costs. Let the office to prepare such decree.
Announced in open court,
Given under my hand & seal of this Court, this the 15th day of April, 2019

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
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60237CCBD612154BE70014DE92E22A07

IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,

HYDERABAD.

Civil Appeal No.287 of 2017

1. Bundoo Khan S/o Ghafoor Khan

Muslim, adult, by caste Qureshi,
R/o House No.50, Ground Floor,
Mir Nabi Bux Town, Noorani Basti,
Hyderabad.

2. Muhammad Yousuf S/o Ghafoor Khan

Muslim, adult, R/o House No.6, Muhallah
Railway Colony, Khanpur Road, Block-250,
Kotri, Jamshoro.
at present R/o House No.50,
Mir Nabi Bux Town, Noorani Basti,
Hyderabad………………………….APPELLANTS.
Versus
Muhammad Younus S/o Ghafoor Khan
Muslim, adult, by caste Qureshi
R/o House No.8, Muhallah Khanpur
Railway Colony, Block-184, Kotri.
at presently R/o House No.50, First Floor,
Mir Nabi Bux Town, Noorani Basti,
Hyderabad………………..
…………………………................................RESPONDENT.
Mr. Mumtaz Ali Soomro, learned counsel for
appellants.
Mr. Mahmood Hussain Siddiqui, learned counsel for
respondent.

J U D G M E N T.
10-05-2019.

This Civil Appeal is directed against the judgment dated

11.10.2017 and decree dated 13.10.2017, passed by learned IInd
Senior Civil Judge, Hyderabad, in F.C.Suit No.73 of 2015 (re-
Muhammad Younus Vs. Bundoo Khan & another), whereby the learned
trial Court decreed the suit to the extent of prayer clauses (1) and (2)
and rest of the prayers of the suit were declined.
2. The respondent/plaintiff Muhammad Younus filed above
suit for Declaration, Possession, Mesne Profits and Permanent
Injunction against appellants/defendants, with the following prayers;-
(i) To declare that the plaintiff is the sole, absolute and
exclusive owner of the property being H.No.50, Mir Nabi
Bux Town, Noorani Basti, Hyderabad, situated over plot
 No.C-50 measuring 1000-sq. ft. in City Survey No.4404,
Ward-G, Taluka City, Hyderabad.

(ii) To direct the defendant to vacate the premises of the SUIT

PROPERTY i.e. ground floor of H.No.50, Mir Nabi Bux Town,
Noorani Basti, Hyderabad situated at plot No.C-50, in City
Survey No.4404, Ward-G, Taluka City, Hyderabad and
handover its vacant and peaceful possession to the
plaintiff.
-2-
(iii) To direct the defendant to pay mesne profit @ Rs.20,000/-
per month for the last three years till such time the
defendant hands over vacant and peaceful possession of
premises of the SUIT PROPERTY in his illegal and unlawful
possession to the plaintiff.

(iv) To restrain the defendant from creating any charge,

alienating, transferring and/or giving possession of the
premises of the SUIT PROPERTY in his possession to
anyone by himself or through his agent, servant, and/or
any other person till disposal of the above suit.

(v) Any other relief this Honourable Court deems fit and
proper under the circumstances.

(vi) To award costs.

It is inter alia pleaded in the plaint that plaintiff is exclusive

owner of house bearing No.50, Mir Nabi Bux Town, Noorani Basti,
Hyderabad, measuring 1000 Sq feet constructed upon C.S No.4404,
Ward-G, Taluka City, Hyderabad as per City Survey Extract dated
31.12.2014 issued by City Survey Office, Hyderabad. Defendant No.1 is
real brother of the plaintiff and due to sympathy plaintiff allowed him
few years ago to reside in ground floor of the suit property for a short
period as licensee as he was shelter-less. Thereafter, defendant No.1
managed to get electricity connection upon the suit property in his
own name without permission of the plaintiff, therefore, plaintiff asked
him to vacate the ground floor but he became hostile to him and
refused to vacate the premises. To harass the plaintiff, defendant No.1
filed third Class Suit No.92 of 2014 for permanent injunction against
the plaintiff which was disposed of on 15-01-2015 on the statement of
the plaintiff that he will not dispossess him without due course of law.
It is further pleaded that plaintiff made his best efforts to get vacated
the ground floor of the suit property but to no avail, hence, he filed the
instant suit.
3. After service of notices, appellant/defendant No.1 filed his
written statement wherein he denied the allegations leveled against
him by stating that the suit property was purchased by him and his
father from earlier owner but malafidely name of plaintiff was entered
in the record fraudulently and that it was benami transaction as whole
amount was provided by the defendant and that utility bills are in his
name. He further pleaded that the plaintiff is not exclusive owner of
the suit property and all brothers and sisters are co-sharers in it. He
also added legal pleas that suit is not maintainable and is barred by
law and the same be dismissed with cost.
4. Record shows that thereafter, defendant No.2 appeared
and filed application under order 01 R. 10 CPC which was allowed vide
order dated 10-09-2016 and he was added as defendant No.2 in the
suit, who also filed written statement wherein he denied the assertions
of the plaintiff and stated that the suit property was purchased by
defendant No.1 and his father from their own
-3-

savings, but plaintiff malafidely and fraudulently transferred the same

in his name taking advantage of simplicity of defendant No.1 and that
there are three floors in the suit property to which all the brothers and
sisters including himself are share holders.
5. Out of the pleadings of the parties, learned trial Court
framed the following amended issues;
(1) Whether suit is not maintainable and the same is barred
by law of Limitation?

(2) Whether suit is barred U/s 42 and 56 of the Specific Relief

Act?

(3) Whether plaintiff is exclusive owner of immovable

property, house No.50, constructed over plot No.C/50,
admeasuring 1000-sq.ft, C.S No.4404, Ward-G, Meer Nabi
Bakhsh Town, Noorani Basti, Taluka City, Hyderabad and
he constructed the suit property from his resources?

(4) Whether defendant was residing as licensee at ground floor

of the premises and he obtained electricity connection on
his name fraudulently?

(5) Whether plaintiff is entitled for Rs.20,000/- per month as

mesne profit from last three years till the delivery of
possession of the premises?

(6) Whether suit plot was purchased by the defendant and his
father and plaintiff fraudulently/malafidely entered his
name in record and the same of “Benami” transaction?

(7) Whether defendant no.2 has filed written statement in

collusion with defendant no.1 and whether he has any
right, title or share in the suit property?

(8) Whether all brothers and sisters are share holders in suit
property?

(9) Whether plaintiff is entitled for relief claimed?

(10) Whether should the judgment and decree be?

6. On the above issues, both the parties adduced their
evidence and closed their sides of evidence respectively.
7. After hearing the parties counsel, learned trial Court
passed the impugned judgment and decree whereby, decreed the suit
to the extent of prayer clauses (1) and (2) and rest of the prayers of
suit were declined.
8. Learned counsel for appellants/defendants argued that
appellants and respondent are real brothers, the respondent/plaintiff
filed suit only against appellant/defendant No.1 while
appellant/defendant No.2 was joined subsequently. He further argued
that the suit property is fraudulently shown to have been transferred in
the name of plaintiff by oral gift by one Fayyaz
 -4-

Ahmed on 23.06.1987. The defendant No.1 including himself examined

07 witnesses and succeeded in proving that Muhammad Younus had
fraudulently transferred the suit property in his name but inspite of
that the suit was decreed, therefore, the judgment dated 11.10.2017
and decree dated 13.10.2017 may be set-aside. He further argued that
after purchase of suit property by the father of defendants and plaintiff
from Fayyaz Ahmed by an oral agreement, he constructed the house in
which his sons were residing and that learned trial Court erred in law
by not discussing specially the issue No.3 property as the very fact of
oral gift allegedly made by Fayyaz Ahmed has not been discussed,
though the plaintiff deposed that he does not know such Fayyaz, which
amounts non-reading of evidence. He further argued that no official
witness was examined to see the veracity of transfer document nor the
attesting witnesses were examined and thus the plaintiff miserably
failed to prove the veracity of document Ex.50/A. He, therefore, argued
that the judgment and decree may be set-aside and suit be dismissed
with cost. In support of his arguments, he relied upon case laws
reported as 2005 SCMR 135, 2005 MLD 878, 1992 SCMR 1832 and
2012 CLC 699.
9. On the other hand, learned counsel for respondent/plaintiff
argued that the appellants/defendants were to file a separate suit for
cancellation of document Ex.50/A but the same was not filed till today
though they were having knowledge since 2002. He further argued
that before filing present suit, the appellant No.1 filed 3 rd Class Suit
bearing No.92 of 2014 for permanent injunction against Muhammad
Younus and another in which respondent filed written statement and
the said suit was disposed of and thereafter plaintiff filed present suit
by adopting due course. He further argued that in the written
statement, the defendant No.2 stated that there are three floors in the
suit property but DW-4 in his evidence deposed otherwise that there is
two storied building. He further argued that this defendant claimed in
his written statement that he was also residing in the suit property
whereas he in his cross deposed differently that he was residing at
Kotri. He lastly argued that the trial Court has passed lawful judgment
which needs no interference by this Court, therefore, appeal may be
dismissed with costs.
10. I have heard learned counsel for the parties and gone
through the material available on record.
Now point for determination of the lis, are as under:

POINTS
(i) Whether impugned judgment and decree 11.10.2017
and 13.10.2017 require any interference by this
Court?.

(ii) What should the judgment be?

 -5-
My findings on points (I) and (II) are as under:-

FINDINGS
POINT NO.I In negative.
POINT NO.II Appeal dismissed.

REASONS

POINT NO.I

11. Admittedly, the plaintiff has sought for declaration of his

being owner of the suit property and possession thereof on the basis of
document Ex.50/A which is Extract From the Property Register Card
issued by City Survey Office Hyderabad. This document mentions that
the suit property was orally gifted by Fayyaz Ahmed in the name of
Muhammad Younus.
12. The plaintiff in his cross deposed that he does not have any
relationship with Fayyaz who gifted the suit property in his name. The
learned counsel for appellant also emphasized upon this piece of
evidence that one who has no relationship, how can gift his property in
the name of such unknown person. Admittedly, it has not been pleaded
by the defendants that this gift deed Ex.50/A is false and fabricated
document nor any statement in this regard was made by them or their
witnesses. Whatever statement was made by them in their respective
written statements is that the plaintiff committed fraud by transferring
the suit property in his name by above document. If it is so; the oral
statement of plaintiff that he does not know any Fayyaz nor has any
relationship with him, cannot falsify a registered document because
the best evidence as per law is the primary evidence as provided
under Article 73 of Qanoon-e-Shahadat Order 1984 i.e. the documents
itself, therefore, whatever recourse available with defendant Bundoo
Khan was to file suit for cancellation of such document, if it was a
fraudulent one which he admittedly did not opt to do though he was
having knowledge and such fact he admitted in his cross by deposing
that he came to know about transfer of suit property in the name of
plaintiff in the year 2002 but inspite of that he did not file suit for
cancellation of such document nor claimed any share as legal heir of
deceased Ghafoor Khan. For sake of argument, if it is assumed to be
correct as has been pleaded by the defendants that the suit property
was purchased by the father of appellants and respondent by a oral
agreement to sale but the appellants failed to adduce evidence that
what was the total sale consideration of suit property, in whose
presence such transaction taken place, on which date and at which
place and these all material aspects of contract to sale are missing.
DW-1, no doubt, deposed that his brother Ghafoor Khan purchased the
suit property in his presence but he failed to depose that from whom
Ghafoor Khan purchased
-6-

the same, what was the total sale consideration and on which date it
was purchased and whether it was conditional or otherwise.
Admittedly, the defendants particularly the defendant No.1 taken
different pleas in his written statement regarding the suit property
because firstly he stated that he is exclusive owner of suit property
and at the same time he changed his like version by stating that it was
purchased by him and his father and it is the joint property and all the
legal heirs of deceased Ghafoor Khan were share holders. Yet
altogether different to this, he in his evidence taken a very strange
plea that one agreement was executed between him and plaintiff
whereby plaintiff agreed to pay him Rs.300,000/- and then he will
vacate the suit property and in case of non-payment, the plaintiff will
transfer 50% ownership of suit property in his favour. He also produced
such agreement at Ex.56/A. So far such piece of evidence and
document Ex.56/A are concerned, the same carry no weight in law
because defendant Bundoo Khan in his written statement nowhere
claimed so. To my humble opinion and in the given position the
impugned judgment and decree do not call for interference. The
arguments advanced by learned counsel for appellant are devoid of
substance and case laws (supra) relied upon by him, to my humble
view, are distinguishable from the facts and circumstances of the case
in hand. Thus, the point under discussion is answered in the negative.

POINT NO.II
12. In the light of the discussion aforesaid, the impugned
judgment and decree passed by learned trial Court do not call for
interference by this Court. Accordingly, the instant appeal is dismissed
and impugned judgment and decree are upheld. The parties to bear
their own costs. Let the office to prepare such decree and send the R &
Ps back to learned trial Court.
Announced in open Court.
Given under my hand & seal of this Court, this the 10th day of May, 2019

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
 Ex.No. _____

IN THE COURT OF IIND ADDITIONAL DISTRICT

JUDGE HYD
(Before Aijaz Ali Khaskheli, IInd Additional District Judge.)

Summary Suit No. 24 of 2014.

Waqar Muhammad Sheikh S/O Muhammad Mustafa,

Muslim, Adult, R/O B. No.C/13, Block-C,
Unit No.06, Latifabad, Hyderabad..………….……….
……………………………Plaintiff.
Versus
Danish S/O Kalu, Muslim, Adult,
R/O Plot No.G/909,Qureshi Compound,
Muhammadi Colony Capital Plaza Hyd………........……..……..

……….Defendant.

O R D E R.
04.09.2014.

This is summary suit for recovery of Rs.78,000/- of Waqar Ahmed

Sheikh from Danish, whose cheque has been dishonorued.

2) Precisely stated, the plaintiff is said to have been carrying out

business of bangles in the name & style as “ALLAH WALA BANGLE

STORES & AGENCY” at Hyderabad. The defendant used to purchase

bangles on credit from the plaintiff. It is further stated that the

defendant purchased bangles and as such issued cheque No.

12529856 dated 25.8.2013 of his account in JS Bank, Market Road

Branch, Hyderabad for payment of Rs.78,000/- to the plaintiff, which,

however stands dishonoured, on presentation.

3) The notice requiring the defendant to appear and obtain leave to

defend the suit within 10 days of service was issued. On 1.7.2014, the

said notice was returned duly served. Yet, the defendant was called

absent without intimation. In the interest of justice, holding the service

good, the matter was adjourned to 7.8.2014. On 7.8.2014, the position

remained same. Still showing grace, the matter was adjourned to

4.9.2014. Today on 4.9.2014, as usual the defendant is called absent

without intimation.

4) It may be stated that despite service of summon, the defendant is

not appeared. He has not obtained leave to defend the suit within the

-2-

stipulated period. Even he has not bothered to seek time for the

purpose. In such a situation, by virtue of rule 2 of Order XXXVII CPC, I

have no option but to believe that the allegations made in the plaint

stand admitted and the plaintiff is entitled to a decree, prayed for.

Order accordingly that the suit of the plaintiff is decreed for an amount

of Rs.78,000/-, however, with no order as to costs. The suit is disposed

of accordingly.

Pronounced in Open Court dated this 04th day of September, 2014.

(AIJAZ ALI KHASKHELI)

II-ADDITIONAL DISTRICT & SESSIONS
JUDGE,
HYDERABAD.
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2B9113463089038FE1828130C0398030
IN THE COURT OF VITH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.
Sessions Case No.285 of 2019
The State
Versus
Meenhon S/o Inayat Hussain(on bail)…………………………………………Accused.
Crime No.10/2019
P.S. Chalghari Hyderabad
U/s 23-A Sindh Arms Act
Mr. Mujeeb Qadir Memon, learned A.D.P.P for the State
Mr. Imtiaz Ali Channa, learned counsel for accused

J U D G E M E N T
11-05-2019
The above named accused has been sent up to stand his
trial in the above case and crime by Police Station Chalghari
Hyderabad for the offence punishable U/s 23-A Sindh Arms Act, vide
challan admitted on 18.02.2019.
2. The very charge against the accused as disclosed in the
FIR is that on 28.02.2019 at 1745 hours complainant arrested the
accused from Masso Bhurgari link Road near Village Mevo Khan
Hajano, Hyderabad in presence of mashirs HC Mahi Khan and PC
Khamiso Khan and found him in possession of unlicensed T.T. pistol of
30-Bore without number alongwith magazine containing 05 live bullets
under such memo was prepared and singed at spot. Thereafter case
property was sealed and then accused and property were brought at
Police Station where instant FIR was registered.
3. As result of investigation, the investigation officer
submitted challan against the accused before the area Magistrate, who
accepted the challan and sent up the case to the Court of Honourable
Sessions Judge, Hyderabad, on jurisdictional ground and wherefrom the
R & Ps received by this Court for its disposal according to law.
4. In compliance of Section 265-C Cr.P.C. necessary case
papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.2, to which he did
not plead guilty and claimed to be tried vide his plea was recorded at
Ex.2/A.
5. Prosecution examined complainant SIP Mushtaque Ahmed
as PW-1 at Ex.3, he produced memo of memo of arrest and recovery at
Ex.3/A and FIR at Ex.3/B, mashir of the incident HC Mahi Khan as PW-2
at Ex.4 and Investigation Officer ASI Ghulam Hussain as PW-3 at Ex.5,
he produced memo of Wardat at Ex.5/A and Expert report at Ex.5/B.
Thereafter learned ADPP for the State closed the side in evidence vide
his statement at Ex.06.
 -2-

6. Statement U/s 342 Cr.P.C. of accused was recorded at

Ex.07, who denied all the allegations leveled against him by the
prosecution and claimed to be innocent, however, he did not opt to
examine himself on oath or produce witnesses in defence.
7. Learned D.D.P.P. for the State argued that prosecution
witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
8. Learned counsel for the accused, on the other hand,
argued that prosecution case is highly doubtful contending further that
there is no cogent evidence with the prosecution and that P.Ws
examined have contradicted to each other on material facts. He further
argued that the accused are innocent, he was arrested from his house,
then he was involved in this false case, therefore, they may be
acquitted from the charge.
9. I have heard learned A.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-
(i) Whether on 28.02.2019 at 1745 hours at Masso Bhurgari
Link Road near Village Mevo Khan Hajano, Hyderabad,
accused was arrested by police party headed by SIP
Mushtaque Ahmed of P.S Chalghari and was found in
possession of an unlicensed T.T. pistol of 30-Bore without
number alongwith magazine containing 05 live bullets in
presence of mashirs?

(ii) What offence if any, has been committed by the accused?.

My findings on points (I) and (II) are as under:-
FINDINGS
POINT NO.I Doubtful/Not proved.

POINT NO.II Accused is acquitted U/s 265-H(i) Cr.P.C.

REASONS
POINT NO.I
10. To prove its case, prosecution examined 03 witnesses. PW-
1, the complainant in his chief deposed that the accused on watching
them started running towards his backside whereas PW-2 deposed
otherwise that the accused watching them left the road and started
running in the field towards southern side. According to PW-1, the
accused was apprehended after he covered 15 paces from the place
where he was seen first whereas PW-2 deposed quite different that the
accused was apprehended by them after he covered about 02 furlongs.
According to PW-1 the pistol was recovered from right side fold of
Shalwar of accused whereas PW-2 deposed otherwise that the
 -3-

pistol was recovered from left side fold of his Shalwar. Both these PWs
in their respective examinations-in-chief remained silent as to whether
property recovered, was sealed at spot or not. So much so, PW-1 in his
chief even remained silent as to by which entry of Roznamcha and at
which time he alongwith staff left the police station for patrol which
fact he also admitted in cross. According to PW-1 the memo was
prepared in standing position by keeping on clip board whereas PW-2
deposed otherwise that the memo of arrest and recovery was prepared
by complainant by sitting on front seat of mobile upon source of torch
light. This PW further deposed that at the time when the memo was
being prepared there was day time as sun was still visible. However,
he made a volunteer disclosure that in February the sun always sets at
06:45 P.M. Strange to be noted that this PW deposed that the accused
was arrested at about 06:45 P.M (1845) hours whereas he watching
the memo of arrest and recovery deposed that the time of its
preparation is shown there under as 1745 hours and not 1845 hours. In
addition to this, PW-1 watching the left side hand stand of pistol
deposed that two digits viz. “66” are inscribed on it and this fact does
not find place in the memo of arrest and recovery. PW-1 deposed that
the accused was wearing black colour Qameez and Shalwar whereas
PW-3 deposed otherwise that when the custody of accused was
handed over to him, he was wearing Shalwar Qameez of half white
colour. PW-3 is assigned role of investigation of the case, who in his
chief, claimed that he visited the place of incident and prepared memo
but remained silent as to by which entry of Roznamcha and at what
time he visited the place of incident and this fact he also admitted in
his cross. He admitted that he sent the property for opinion after four
days which is not explained by him in chief. In addition to this, there
are other inconsistent statements appearing in the statement of
prosecution witnesses but those are unnecessary to be discussed
specially in view of above discussion. In view of the above discussion, I
am of the considered view that prosecution has failed to prove the
point under discussion, therefore, same is answered in negative.
POINT NO.II
11. In view of the aforementioned appraisal of evidence, I am
of the humble view that the prosecution has miserably failed to bring
home the charge against the accused beyond any shadow of
reasonable doubt, hence, accused Meenhon S/o Inayat Hussain is given
benefit of doubt and stands acquitted of the charge U/s 265-H(i) Cr.P.C.
He is present on bail, his bail bond stands cancelled and surety is
discharged.
Pronounced in open Court this 11th of May 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
-4-

CASE PROPERTY ORDER U/S 517 CR.P.C

The case property shown in the charge sheet viz. an
unlicensed 30-Bore T.T. pistol alongwith magazine and five live bullets
be deposited in District Armoury for its disposal according to law after
expiry of appeal period.
Dated this 11th of May, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
 HOW TO VERIFY THIS DOCUMENT
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Document Code: 77C5C3DC83D12AAB9B8796E858BD2AA6

IN THE COURT OF VITH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.

Sessions Case No.284 of 2019
The State
Versus
Danish @ Mehtab S/o Pir Dino @ Chalghari (on bail)…Accused.
Crime No.09/2019
P.S. Chalghari Hyderabad
U/s 23-A Sindh Arms Act
Mr. Mujeeb Qadir Memon, learned A.D.P.P for the State
Mr. Imtiaz Ali Channa, learned counsel for accused

J U D G E M E N T
11-05-2019
The above named accused has been sent up to stand his
trial in the above case and crime by Police Station Chalghari
Hyderabad for the offence punishable U/s 23-A Sindh Arms Act, vide
challan admitted on 20.03.2019.
2. The very charge against the accused as disclosed in the
FIR is that on 28.02.2019 at 1500 hours complainant arrested the
accused from the road leading to Shah Bukhari Link Road from
National Highway near Guru Nanak Mandir, Hyderabad in presence of
mashirs PC Muhammad Hashim and PC Ali Muhammad and found him
in possession of unlicensed T.T. pistol of 30-Bore without number
alongwith magazine containing 05 live bullets and such memo was
prepared and singed at spot. Thereafter case property was sealed and
then accused and property were brought at Police Station where
instant FIR was registered.
3. As result of investigation, the investigation officer
submitted challan against the accused before the area Magistrate, who
accepted the challan and sent up the case to the Court of Honourable
Sessions Judge, Hyderabad, on jurisdictional ground and wherefrom the
R & Ps received by this Court for its disposal according to law.
4. In compliance of Section 265-C Cr.P.C. necessary case
papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.2, to which he did
not plead guilty and claimed to be tried vide his plea was recorded at
Ex.2/A.
5. Prosecution examined complainant ASI Ghulam Hussain as
PW-1 at Ex.3, he produced departure entry at Ex.3/A, memo of arrest
and recovery at Ex.3/B and FIR at Ex.3/C, mashir of the incident PC
Muhammad Hashim as PW-2 at Ex.4 and Investigation Officer SIP
Mushtaque Ahmed as PW-3 at Ex.5, he
 -2-

produced memo of Wardat at Ex.5/A and Expert report at Ex.5/B.

Thereafter learned ADPP for the State closed the side in evidence vide
his statement at Ex.06.
6. Statement U/s 342 Cr.P.C. of accused was recorded at
Ex.07, who denied all the allegations leveled against him by the
prosecution and claimed to be innocent, however, he did not opt to
examine himself on oath or produce witnesses in defence.
7. Learned D.D.P.P. for the State argued that prosecution
witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
8. Learned counsel for the accused, on the other hand,
argued that prosecution case is highly doubtful contending further that
there is no cogent evidence with the prosecution and that P.Ws
examined have contradicted to each other on material facts. He further
argued that the accused are innocent, he was arrested from his house,
then he was involved in this false case, therefore, they may be
acquitted from the charge.
9. I have heard learned A.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-
(i) Whether on 28.02.2019 at 1500 hours at the road leading
to Shah Bukhari Link Road from National Highway near
Guru Nanak Mandir, Hyderabad, accused was arrested by
police party headed by ASI Ghulam Hussain Noonari of P.S
Chalghari and was found in possession of an unlicensed
T.T. pistol of 30-Bore without number alongwith magazine
containing 05 live bullets in presence of mashirs?

(ii) What offence if any, has been committed by the accused?.

My findings on points (I) and (II) are as under:-
FINDINGS
POINT NO.I Doubtful/Not proved.

POINT NO.II Accused is acquitted U/s 265-H(i) Cr.P.C.

REASONS
POINT NO.I
10. To prove its case, prosecution examined 03 witnesses. PW-
1 and so also PW-2 are examined as star witnesses of arrest and
recovery. These PWs are even not in league to each other in their
respective examinations-in-chief. According to PW-1 the accused on
watching them tried to escape towards his backside whereas PW-2
deposed otherwise that the accused watching them started running
towards his right side. PW-1 produced the memo of arrest and
-3-
recovery and PW-2 after watching this document also claimed in his
chief that it is same but he in his cross deposed that “I see memo as
Ex.3/B and say it does not bears my signature. Vol. says; my signature
somewhat differs from the one which is put on it documents. Further
Vol says; the document which was signed by me was some other
documents”. PW-2 deposed that Butt of pistol was having dark brown
plastic strips but he watching the same deposed that it is having 02
plastic strips of black colour. This PW also watching the left upper
corner of memo of recovery and that of its model lower part admitted
that the time of arrest and recovery is written with different pens. He
also admitted that 6/7 kilometer distance in between Police Station and
place of arrest and recovery was covered by them within one hour for
which he deposed that the engine of the mobile was weak and due to
which they covered this distance within one hour. This PW further
claimed that memo of arrest and recovery was prepared by him by
sitting on the front seat of mobile with his own handwriting but PW-2
deposed otherwise that the document which was signed by him was
prepared by complainant about 15/20 paces away from mobile. PW-1
deposed that private person could not be invited as they were not
available whereas PW-2 deposed that private persons were available
but complainant did not invite them. As regards the evidence of PW-3,
he claimed that he conducted investigation by visiting place of incident
and sending property to the expert and recording 161 Cr.P.C.
statements of PWs. However, he in his cross admitted that he has not
produced the entry by which he left and visited the place of
occurrence. He admitted that he sent the property to the expert after
04 days and this delay has not explained by him. In addition to this,
there are other inconsistent statements appearing in the statement of
prosecution witnesses but those are unnecessary to be discussed
specially in view of above discussion. To my view, the prosecution has
failed to prove the point under discussion, therefore, same is answered
in negative.
POINT NO.II
11. In view of the aforementioned appraisal of evidence, I am
of the humble view that the prosecution has miserably failed to bring
home the charge against the accused beyond any shadow of
reasonable doubt, hence, accused Danish @ Mehtab S/o Pir Dino @
Chalghari is given benefit of doubt and stands acquitted of the charge
U/s 265-H(i) Cr.P.C. He is present on bail, his bail bond stands
cancelled and surety is discharged.
Pronounced in open Court this 11th of May 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
 -4-

CASE PROPERTY ORDER U/S 517 CR.P.C

The case property shown in the charge sheet viz. an
unlicensed 30-Bore T.T. pistol alongwith magazine and five live bullets
be deposited in District Armoury for its disposal according to law after
expiry of appeal period.
Dated this 11th of May, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
 HOW TO VERIFY THIS DOCUMENT
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24233B4BD1D8BD68413E77DD88C54054
IN THE COURT OF VITH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.
Sessions Case No.266 of 2019

The State

Versus

Shadab S/o Naseer Khan Ghouri(on bail)…………………………………Accused.

Crime No.64/2019
P.S. Husri Hyderabad
U/s 23-A Sindh Arms Act

Mr. Mujeeb Qadir Memon, learned A.D.P.P for the State

Mr. Ashfaque Ali Khaskheli, learned counsel for
accused

J U D G E M E N T
13-05-2019

The above named accused has been sent up to stand his

trial in the above case and crime by Police Station Husri Hyderabad for
the offence punishable U/s 23-A Sindh Arms Act, vide challan admitted
on 27.03.2019.
2. The very charge against the accused as disclosed in the
FIR is that on 13.03.2019 at 0130 hours, complainant arrested the
accused from main road leading to Hyderabad from Tando Fazal,
Hyderabad in presence of mashirs PC Hadi Bux and PC Muhammad
Suleman and found him in possession of an unlicensed T.T. pistol of 30-
Bore without number alongwith magazine containing 03 live bullets
and such memo was prepared and singed at spot. Thereafter case
property was sealed and then accused and property were brought at
Police Station where instant FIR was registered.
3. As result of investigation, the investigation officer
submitted challan against the accused before the area Magistrate, who
accepted the challan and sent up the case to the Court of Honourable
Sessions Judge, Hyderabad, on jurisdictional ground and wherefrom the
R & Ps received by this Court for its disposal according to law.
4. In compliance of Section 265-C Cr.P.C. necessary case
papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.2, to which he did
not plead guilty and claimed to be tried vide his plea was recorded at
Ex.2/A.
5. Prosecution examined complainant/Investigation Officer
ASI Imamdin as PW-1 at Ex.3, he produced departure entry at Ex.3/A,
memo of arrest and recovery at Ex.3/B, FIR at Ex.3/C and expert report
at Ex.3/D and mashir of the incident PC Hadi Bux as PW-2 at Ex.4.
Thereafter learned ADPP for the State closed the side in evidence vide
his statement at Ex.05.
 -2-
6. Statement U/s 342 Cr.P.C. of accused was recorded at
Ex.06, who denied all the allegations leveled against him by the
prosecution and claimed to be innocent, however, he did not opt to
examine himself on oath or produce witnesses in defence.
7. Learned D.D.P.P. for the State argued that prosecution
witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
8. Learned counsel for the accused, on the other hand,
argued that prosecution case is highly doubtful contending further that
there is no cogent evidence with the prosecution and that P.Ws
examined have contradicted to each other on material facts. He further
argued that the accused is innocent, he was arrested from his house,
then he was involved in this false case, therefore, they may be
acquitted from the charge.
9. I have heard learned A.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-
(i) Whether on 13.03.2019 at 0130 hours at main road leading
to Hyderabad from Tando Fazal, Hyderabad, accused was
arrested by the complainant party under preparation of
mashirnama in presence of mashirs and found in
possession of an unlicensed 30-Bore T.T. pistol alongwith
magazine containing 03(three) live bullets?

(ii) What offence if any, has been committed by the accused?.

My findings on points (I) and (II) are as under:-
FINDINGS
POINT NO.I Doubtful/Not proved.

POINT NO.II Accused is acquitted U/s 265-H(i) Cr.P.C.

REASONS
POINT NO.I
10. To prove its case, prosecution examined 02 witnesses, out
of which, PW-1 is assigned with two roles one of the complainant and
the other of being investigation officer of the case. Admittedly a
minute look at the examinations-in-chief of these two PWs transpires
that they are not in league to each other on material pieces of
evidence as according to PW-1 the accused watching them started
running, however, he was apprehended after he covered about 10/15
paces whereas PW-2 deposed otherwise that they found the accused
coming in suspicious position and when they came nearest to them,
they alighted from the mobile and apprehended him. According to PW-
1 the pistol was recovered from right side fold of accused whereas PW-
2 deposed
-3-
otherwise that it was recovered from left side fold of his Shalwar.
Further to this aspect of the matter PW-1, in his cross deposed that the
accused was wearing suite pent and not Shalwar. PW-1 also produced
memo of arrest and recovery at Ex.3/B and claimed that this document
was prepared and signed at spot, this is what which is claimed by PW-2
in his chief, however, this PW in his cross deposed otherwise which
reads that “It is fact that memo Ex.3/B bore my signature which is
different to that of my actual signature. Vol. says; the document which
was prepared and signed at spot is not one which is produced before
this Court at Ex.3/B”. If it is so; the document Ex.3/B which is memo of
arrest and recovery looses its sanctity. In addition to this, both these
PWs claimed that the pistol recovered from the accused was without
number and wordings, however, they watching the left side barrel of
the pistol deposed in the same breath that some wordings viz. “ Made in
Pakistan Cal Z 03/130 Cal 7.63/130” are inscribed on it and this disclosure is
not mentioned in the memo of arrest and recovery. PW-1 claimed that they
left Police Station vide entry No.32 at 1200 hours, whereas he in his cross
watching this document Ex.3/A deposed that it mentions the time of
departure as 0005 hours and not 1200 hours. In addition to this, there are
other inconsistent statements appearing in the statement of
prosecution witnesses but those are unnecessary to be discussed
specially in view of above discussion. To my view, the prosecution has
failed to prove the point under discussion, therefore, same is answered
in negative.
POINT NO.II
11. In view of the aforementioned appraisal of evidence, I am
of the humble view that the prosecution has miserably failed to bring
home the charge against the accused beyond any shadow of
reasonable doubt, hence, accused Shadab S/o Naseer Khan Ghouri is
given benefit of doubt and stands acquitted of the charge U/s 265-H(i)
Cr.P.C. He is present on bail, his bail bond stands cancelled and surety
is discharged.
Pronounced in open Court this 13th of May 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
 CASE PROPERTY ORDER U/S 517 CR.P.C
The case property shown in the charge sheet viz. an
unlicensed 30-Bore T.T. pistol without number alongwith magazine and
three live bullets be deposited in District Armoury for its disposal
according to law after expiry of appeal period.
Dated this 13th of May, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
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Document Code: 539FD25EF11442184BA20A1E8A4E11B8
IN THE COURT OF VITH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.
Sessions Case No.157 of 2019
The State
Versus
1. Arbab Ali S/o Lal Muhammad Brohi
2. Naseer Ahmed S/o Imam Bux Pathan………….……………………………Accused.
Crime No.31/2012
P.S. Abad
U/s 324, 353, 412, 34 PPC
Mr. Mujeeb Qadir Memon, learned A.D.P.P for the State
Syed Tofiq Ahmed Shah, learned counsel for accused

J U D G M E N T
11-05-2019
The above named accused have been sent up to stand
their trial in the above case and crime by Police Station Abad for the
offence punishable U/s 23-A Sindh Arms Act, vide challan admitted on
18.08.2012.
2. The very charge against the accused as disclosed in the
FIR is that on 04.08.2012 SIP Shahnawaz Khoso, SHO Police Station
Abad, Jacobabad, alongwith subordinates while busy in snap checking
of the vehicles at Bachal Wah Picket, received wireless message about
a white colour Toyota Corolla XLI Car No.GS-7985, Model 2003 which
was robbed property of Crime No.647/2012 of Police Station Shahrah-
e-Faisal, Karachi, is coming towards Jacobabad, and at about 04:00
a.m. they noticed the indicated car, in which two persons were found
sitting. On being signaled to stop, the driver stopped the car, got down
from it and taking out pistol started firing upon the police party. The
police also retaliated the firing and after the encounter of 10 minutes,
both the accused were apprehended. One person disclosed his identify
as Arbab Ali son of Lal Muhammad Brohi, from whose possession one
unlicensed T.T. pistol of 30-Bore with empty magazine was recovered.
The other person identified himself as Naseer Ahmed son of Imam Bux,
from whose possession one black colour purse containing five notes of
rupees 100 and his NIC was recovered. The accused persons disclosed
that they had robbed of the above car from Shahrah-e-Faisal Karachi.
Thereafter accused and case property were brought at Police Station
where present FIR was registered.
3. As result of investigation, the investigation officer
submitted challan against the accused before the area Magistrate, who
accepted the challan and sent up the case to the Court of Honourable
Sessions Judge, Jacobabad, on jurisdictional ground, who sent the same
to learned Ist. Additional Sessions Judge, Jacobabad for its disposal
according to law.
 -2-
4. In compliance of Section 265-C Cr.P.C. necessary case
papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.2, to which they
did not plead guilty and claimed to be tried vide their pleas were
recorded at Ex.2/A & 2/B.
5. Prosecution examined complainant/Investigation Officer SIP
Shahnawaz as PW-1 at Ex.4, he produced memo of arrest and recovery
at Ex.4/A, FIR at Ex.4/B and memo of place of wardat at Ex.4/C, PW-2
HC Nizamuddin at Ex.5. Thereafter since accused Arbab Ali was
confined in Central Jail at Hyderabad and was ordered to be tried inside
the jail, the Honourable District & Sessions Judge, Jacobabad, upon
order of Honourable High Court of Sindh, Karachi, sent the R & Ps to
Honourable District & Sessions Judge, Hyderabad who sent up the
same to this Court for proceedings further with the case and this Court
recorded evidence of PW-3 PC Abdul Ghafoor at Ex.07. Thereafter
learned ADPP for the State closed the side of evidence vide his
statement at Ex.08.
6. Statement U/s 342 Cr.P.C. of accused were recorded at
Ex.09 & 11, who denied all the allegations leveled against them by the
prosecution and claimed to be innocent, however, they did not opt to
examine themselves on oath or produce witnesses in defence.
7. Learned D.D.P.P. for the State argued that prosecution
witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
8. Learned counsel for the accused, on the other hand,
argued that prosecution case is highly doubtful contending further that
there is no cogent evidence with the prosecution and that P.Ws
examined have contradicted to each other on material facts. He further
argued that the accused is innocent, they were arrested from their
houses, then he was involved in this false case, therefore, they may be
acquitted from the charge.
9. I have heard learned A.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-
(i) Whether on 04.08.2012 at 0400 hours at Police picket
Bachal Wah situated in Deh Bachalpur Taluka and District
Jacobabad, both accused, out of which, accused Arbab Ali
being armed with weapon in furtherance of their common
intention made firing upon complainant party with
intention to commit their murder and did an act with such
 intention and under such circumstances that if by the said
act they had committed Qatl of complainant party they
would have been guilty of Qatl-e-Amd, also prevented
them from discharging their lawful duties and retained
robbed property viz. one white colour car bearing
Registration No.GS-7985 Model 2003?
-3-

(ii) What offence if any, has been committed by the accused?.

My findings on points (I) and (II) are as under:-
FINDINGS

POINT NO.I Doubtful/Not proved.

POINT NO.II Accused are acquitted U/s 265-H(i) Cr.P.C.

REASONS
POINT NO.I
10. To prove its case, prosecution examined PW-1 Shahnawaz
as complainant and so also investigation officer of the case. PW-2
Nizamuddin, the mashir of arrest and recovery and PW-3 Abdul
Ghafoor, the witness of occurrence. As far as examinations-in-chief of
PW-1 and 2, they are in league to each other, however, they made
contradictory statements altogether different to each other in their
respective cross examinations. According to PW-1 the Quetta road runs
from east to west whereas PW-2 denied that this road runs from east
to west for which he made a volunteer statement that it runs from
south to north. It is necessary to be noted that this is the road which is
shown as place of encounter, arrest and recovery. Yet PW-3 to this
aspect of the matter introduced a very strange story by deposing that
the encounter taken place on highway road leading from Shikarpur to
Jacobabad and this road runs from south to west. According to PW-1,
the accused after arrest and recovery were put in mobile without tying
their hands, however, he again said that the hands of the accused
were tied with a cloth jointly. According to PW-1 and 2, the memo of
arrest and recovery was prepared by PW-1 by keeping upon the bonnet
of police mobile whereas PW-3 who is witness of occurrence deposed
otherwise that the memo of arrest and recovery was prepared in
standing position by the complainant by keeping on clip board upon
the headlights of mobile. According to PW-1 the encounter occurred at
the distance of about 10/15 paces in between the accused and the
police party whereas PW-2 introduced this distance as 35/40 steps.
According to PW-1 the accused made firing by hiding themselves
behind the bank of Bachal Wah whereas PW-3 to this aspect of the
matter deposed otherwise that the accused while firing got position
behind the bank of “Sanhro Wah” while they taken position from both
banks of road. All these PWs deposed in the same breath that the firing
from both sides went ineffective and that the firing made by the
accused even did not hit the mobile which was parked on the bank of
the road and Bachal Wah and if it is so; it is really a miracle which just
transpires that there was shooting by shooters to make prey of birds in
the air. In addition to this, there are other inconsistent statements
appearing in the statement of prosecution witnesses but those are
unnecessary to be discussed specially in
-4-

view of above discussion. To my view, the prosecution has failed to

prove the point under discussion, therefore, same is answered in
negative.
POINT NO.II
11. In view of the aforementioned appraisal of evidence, I am
of the humble view that the prosecution has miserably failed to bring
home the charge against the accused beyond any shadow of
reasonable doubt, hence, accused Arbab Ali S/o Lal Muhammad Brohi
and Naseer Ahmed S/o Imam Bux Pathan are given benefit of doubt
and stand acquitted of the charge U/s 265-H(i) Cr.P.C. Accused Naseer
is present on bail, his bail bond stands cancelled and surety is
discharged. Accused Arbab Ali Brohi is produced in custody, he is
remanded back to custody with directions to release him forthwith if he
is not required in any other custody case/crime.
Pronounced in open Court this 11th of May 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
CASE PROPERTY ORDER U/S 517 CR.P.C
The case property shown in the charge sheet viz. one NIC
in the name of Ahmed Pathan and purse containing Rs.500/- in the
shape of five notes of Rs.100/- each be returned to original owner after
proper verification, identification and under receipt after expiry of
appeal period. As regard the other part of case property viz. one XLI
Car of white colour No.GS-7985 Model 2003, which also the case
property of Crime No.647 of 2012 of Police Station Shahrah-e-Faisal be
returned to its claimant after disposal of the case. The other part of
case property viz. one 30-Bore T.T. pistol No.1415 alongwith empty
magazine may be disposed of according to law after disposal of its
main 13-d Arms Ordinance case.
Dated this 11th of May, 2019.
 (MUHAMMAD FAZIL BOHIO)
VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
 HOW TO VERIFY THIS DOCUMENT
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Document Code: 133AB2DEDFF873FD466508F72D9EC205

IN THE COURT OF VITH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.

Sessions Case No.144 of 2019

The State

Versus

Zeeshan S/o Muhammad Shafique Naghar….…………………………………Accused.

Crime No.15/2018
P.S. B-Section Latifabad
U/s 23-A Sindh Arms Act

Mr. Mujeeb Qadir Memon, learned A.D.P.P for the State

Mr. Ahmed Ali Naghar, learned counsel for accused

J U D G M E N T
14-05-2019

The above named accused has been sent up to stand his

trial in the above case and crime by Police Station B-Section Laatifabad
for the offence punishable U/s 23-A Sindh Arms Act, vide challan
admitted on 18.02.2019.
2. The very charge against the accused as disclosed in the
FIR is that on 02.02.2019 at 0030 hours complainant arrested the
accused corner of Bismillah City, Unit No.10, Latifabad, Hyderabad in
presence of mashirs HC Ghulam Nabi and PC Manzoor Bukhari and
found him in possession of an unlicensed steel colour T.T. pistol of 30-
Bore without number alongwith 02 live bullets under such memo was
prepared and singed at spot. Thereafter case property was sealed and
then accused and property were brought at Police Station where
instant FIR was registered.
3. As result of investigation, the investigation officer
submitted challan against the accused before the area Magistrate, who
accepted the challan and sent up the case to the Court of Honourable
Sessions Judge, Hyderabad, on jurisdictional ground and wherefrom the
R & Ps received by this Court for its disposal according to law.
4. In compliance of Section 265-C Cr.P.C. necessary case
papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.2, to which he did
not plead guilty and claimed to be tried vide his plea was recorded at
Ex.2/A.
5. Prosecution examined complainant ASI Allah Wasayo as
PW-1 at Ex.3, he produced departure entry at Ex.3/A, memo of arrest
and recovery at Ex.3/B and FIR at Ex.3/C, mashir of the incident HC
Ghulam Nabi as PW-2 at Ex.4 and Investigating Officer SIP Amanullah
Jamali as PW-3 at Ex.5, he
 -2-

produced letter for FSL at Ex.5/A and FSL report at Ex.5/B. Thereafter
learned ADPP for the State closed the side in evidence vide his
statement at Ex.06.
6. Statement U/s 342 Cr.P.C. of accused was recorded at
Ex.07, who denied all the allegations leveled against him by the
prosecution and claimed to be innocent, however, he did not opt to
examine himself on oath or produce witnesses in defence.
7. Learned D.D.P.P. for the State argued that prosecution
witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
8. Learned counsel for the accused, on the other hand,
argued that prosecution case is highly doubtful contending further that
there is no cogent evidence with the prosecution and that P.Ws
examined have contradicted to each other on material facts. He further
argued that the accused is innocent, he was arrested from his house,
then he was involved in this false case, therefore, they may be
acquitted from the charge.
9. I have heard learned A.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-
(i) Whether on 02.02.2019 at 0030 hours at corner of
Bismillah City, Unit No.10, Latifabad, Hyderabad, accused
was arrested by the complainant party under preparation
of mashirnama in presence of mashirs and found in
possession of an unlicensed 30-Bore T.T. pistol of steel
colour without number alongwith two live bullets?

(ii) What offence if any, has been committed by the accused?.

My findings on points (I) and (II) are as under:-
FINDINGS
POINT NO.I Doubtful/Not proved.

POINT NO.II Accused is acquitted U/s 265-H(i) Cr.P.C.

REASONS
POINT NO.I
10. As is discussed above, the charge against the accused is
that on 02.02.2019 at 0030 hours at corner of Bismillah City, Unit
No.10, Latifabad, Hyderabad, he was found in possession of an
unlicensed 30-Bore T.T pistol of steel colour with two live bullets by the
police party headed by ASI Allah Wasayo Nohri in presence of mashirs
HC Ghulam Nabi and PC Maznoor.
11. To prove such charge, prosecution examined PW-1 ASI
Allah Wasayo and PW-2 HC Ghulam Nabi as star witnesses of arrest
and recovery. These PWs in their respective examinations-in-chief are
in league to each other
-3-

to some extent as to the above charge against the accused, however,

they in their respective cross examinations made contradictory
statements altogether different to each other regarding the material
aspects of the matter. According to PW-1 spy informer met with him in
person near the park situated at Bismillah City and given him
information at about 12:10 A.M. whereas PW-2 deposed otherwise that
spy information was received by the complainant at about 12:15 A.M.
PW-1 deposed that they patrolled different places viz. Bismillah City,
Unit No.5, Bhatti Chowk and Unit No.6 and they also conducted snap
checking for about 10 minutes’ time at each place whereas PW-2
deposed differently that they did not patrol any other place as they
after leaving police station came directly at the place where they
received spy information. According to PW-1 the accused watching
them started running towards western side from them and they
apprehended him after he covered about 10 furlongs from the place
where he was found available whereas PW-2 deposed otherwise that
the accused watching police mobile started taking steps towards
eastern side but they alighting from the mobile apprehended him after
he covered about 5/10 paces. In addition to this, both the PWs
remained mum regarding the sealing of the property at the spot. PW-1
deposed that the pistol recovered was without number and wordings,
however, he watching right side hand stand of the pistol deposed that
word “Diamond” is written inside a circle upon it and such disclosure is
not mentioned in the memo of arrest and recovery. This PW also
admitted the fact that private persons were found available at the
place of arrest and recovery from whom he also asked to witness the
arrest and recovery but they refused. However, he admitted that he
did not take action against them as provided U/S. 187 PPC. PW-2
deposed that they arrived back at Police Station at about 0115 hours
but he watching arrival back entry Ex.3/A produced by PW-1 deposed
that the time of their arrival back at Police Station is written in this
document as 0130 hours. As far as evidence of PW-3 SIP Amanullah
Jamali is concerned, his statement is formal. However, he admitted
that he sent the property to the expert after 02 days delay which is not
explained by him in his chief. This PW claimed in his chief that the
accused confessed his guilt before him, however, he in cross admitted
that he did not get his confessional statement recorded before the
Magistrate in this regard. Thus, the statement, if any, made by the
accused before police regarding his confession, the same carries no
weight in law. In addition to this, there are also other material
irregularities rather inconsistencies in the evidence of prosecution
witnesses but those are unnecessary to be discussed specially in view
of above discussion. To my view, the prosecution has failed to prove
the point under discussion, therefore, same is answered in negative.
 -4-

POINT NO.II
11. In view of the aforementioned appraisal of evidence, I am
of the humble view that the prosecution has miserably failed to bring
home the charge against the accused beyond any shadow of
reasonable doubt, hence, accused Zeeshan S/o Muhammad Shafique is
given benefit of doubt and stands acquitted of the charge U/s 265-H(i)
Cr.P.C. Accused is produced in custody, he is remanded back to
custody with directions to release him forthwith if he is not required in
any other custody case/crime.
Pronounced in open Court this 14th of May 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.

CASE PROPERTY ORDER U/S 517 CR.P.C

The case property shown in the charge sheet viz. 30-Bore
T.T pistol of steel colour with two live bullets be deposited in District
Armoury for its disposal according to law after expiry of appeal period.
Dated this 14th of May, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.

Civil Appeal No.154 of 2017

Baiyak Khan S/o Aazik Khan

Muslim, adult, Pathan by caste
Resident of Tando Hyder Mohallah
Taluka & District

Hyderabad…………………………………………………………………Appellant.

Versus

1. Mst. Farhat Banue widow of Zahoor Ahmed Khan.

2. Rao Muhammad Hassan Khan s/o Zahoor Ahmed Khan.
3. Mst. Arifa Zahoor daughter of Zahoor Ahmed Khan,
All Muslims, adult by caste Rajput, resident of
House No.B-96, Mohallah Hussain-D, Silver Town,
North Nazimabad, Block-B, Karachi.

4. D.D.O (Revenue), Hyderabad.

5. Mukhtiarkar, Taluka
Hyderabad……………………………………………………Respondents.

Mr. Zahid Mallah, Advocate for the appellant.

Mr. Muhammad Ishtiaque, Advocate for private respondents
Mr. ________________, DDA for respondents Nos.4 & 5

J U D G M E N T.
25-05-2019.

This Civil Appeal is directed against the consolidated

judgment and decree dated 26.04.2017 and decree dated 05.05.2017
passed by learned VIth Senior Civil Judge, Hyderabad, in F.C.Suit
No.650 of 2011 (Baiyak Khan Vs. Mst. Farhat Banue & other), whereby
the learned trial Court dismissed the suit of the appellant and decreed
the F.C.Suit No.60 of 2012 filed by respondents.
2. Brief facts of the case are that appellant/plaintiff Baiyak
Khan filed above suit for Specific Performance of Contract and
Permanent Injunction stating that suit land bearing S.Nos.
188,189,345, 190/1 to 4, admeasuring 38/1-2 Ghunta, Deh Chacha
Detha Taluka and District Hyderabad was owned by defendants No.1 to
3 and such entry bearing No.147 dated 04-11-2011 was made in Deh
Form-VII in the Revenue Record. The original owner of the suit land
was Zahoor Ahmed s/o Yaqoob Ali Rajput, who was the husband and
father of defendants No.1 to 3. Zahoor Ahmed took loan from Habib
Bank Limited, Branch Office, Station Road, Hyderabad, who was
expired on 12-11-1990. Zahoor Ahmed during his life time,
could not repay the said loan, hence the said Bank filed a suit for
recovery of loan before Banking Court, which was decreed. The loan
was ultimately paid by the defendants and then
-2-

revenue record was mutated in the names of defendants No.1 to 3.

The defendant No.1 on her behalf and her son and
daughter/defendants No.2 and 3 entered into an agreement dated18-
02-2011 with plaintiff Baiyak Khan with the terms and conditions of the
said agreement. It was agreed to sell the suit land for Rs.10,00,000/-
(Rupees Ten Lacs) and in case of not selling the suit land, the
defendant No.1 has to pay Rs. 20,00,000/-(Rupees twenty lacs) along
with other payments made to defendant No.1 and plaintiff made
expenditure in this regard. The amount of other expenditure was
Rs.1,10,000/-(Rupees one lac and ten thousand). The plaintiff prepared
to perform his part of contract, hence this suit with the following
prayers:-

a. Specific performance of agreement dated 18-02-2011 for

sale by registration of sale deed in respect of the suit land ,
in favour of the plaintiff.

b. Permanent injunction restraining the defendants No. 1,2

and 3 from alienating the suit land by themselves or by
their agent, who ever may.

c. Costs of the suit be borne by the defendants No.1,2 and 3.

d. Any other relief, this Court may deem fit and proper under
the circumstances of the case.

3. After institution of the suit, notices were issued to

defendants and in response thereto respondent No.1 in her suit No.60
of 2012 filed against appellant for Declaration, Cancellation of
document valued at Rs.80 Lacs stated that the suit land was originally
owned by her husband Zahoor Ahmed and after his death was
devolved upon her, Rao Muhammad Hassan Khan (son) and Arifa
Zahoor Ahmed (daughter) and mutation stands affected in their
names. According to her she alongwith her son and daughter mostly
remained abroad and visit Pakistan occasionally and appellant taking
undue advantage of their absence to usurp suit land, managed false
document forging her singautre and filed Suit No.650 of 2011. When
she came in knowledge of said facts, approached concerned Police
Station for lodging FIR for committing fraud and forgery by appellant
but Police did not take any action which constructed her to file
application under Section 22-A & B Cr.P.C. She denied to have entered
into any sale transaction with appellant in respect of above suit land in
which her status is of co-sharer and not exclusive owner, hence, not
competent to enter into any sale transaction on behalf of other co-
sharers. She also claimed valude of suit land as Rs.80 Lac and denied
that appellant cleared the loan amount over suit land and prayed for
declaration of sale agreement dated 18.02.2011 as forged one having
no binding effect upon her and further to cancel said agreement.
 -3-

4. The defendants of both suits filed their written statement

in the line of contents of their respective memo of plaints and following
consolidated issues were framed treating F.C.Suit No.650/2011 as
leading suit.
1. Whether the suit is maintainable under the law?
2. Whether the sale agreement dated 18.02.2011 in F.C.Suit
No.60/2012 in respect of suit property bearing Survey
Nos.188, 189, 345 and 190/1 to 4 admeasuring 38½
Ghuntas, situated in Deh Chacha Detha Taluka and District
Hyderabad in possession of defendant as forged one and is
liable to be cancelled?
3. Whether the plaintiff in F.C.Suit No.650/2011 is entitled to
specific performance of contract in respect of the property
bearing Survey No.188, 189, 345 and 190/1 to 4
admeasuring 38½ situated in Deh Chacha Detha Taluka
and District Hyderabad?
4. What should the decree be?

4. In order to prove its case, both the parties adduced their

evidence and closed side in evidence.
5. After hearing the parties and their counsel, learned trial
Court passed the judgment dated 26.04.2017 and decree dated
05.05.2017 whereby dismissed the suit No.650/2011 and decreed the
suit No.60 of 2012.
6. Learned counsel for appellants argued that
there is delay of six days in filing appeal for which sufficient
explanation is given in the affidavit to application filed under Section 5
of Limitation Act, 1908. He arguing the merits of the appeal, contended
that document Ex.26/B is sale agreement executed in between the
appellant and respondent No.4, the appellant following terms and
conditions of the contract, paid entire amount of sale vide receipt
Ex.26/A. He further argued that the contract of sale was not providing
date for its performance, therefore, the plaintiff filed suit when they
refused to perform the part of their contract. He argued that the
wording written in the contract that the company was not to handover
the possession of the flat to the appellant within 16 months but
thereafter it had to pay rent and since respondent No.4 failed to pay
rent or handover possession of suit flat, legal notice was issued and
sent by the appellant to respondent No.4 calling upon him to perform
his part of contract. He argued that the delay of six days in filing
appeal may be condoned, and appeal be allowed as prayed for after
setting aside the judgment and decree.
7. On the other hand learned counsel for respondent No.4, at
the very outset, argued that the very appeal filed by the appellant is
not maintainable because the same has been filed after the time
provided to the appellant. The explanation given behind such delay
that the appellant was not having knowledge as his earlier counsel did
not inform him the fate of the suit, is devoid of substance as same
learned counsel, who was defending the appellant before trial Court, is
arguing today before this Court. He next contended that very
agreement Ex.26/B is false document. This document nowhere
mentions the ingredients of contract and if it is presumed that the
company did not handover the possession of flat within 16 months, it
had to pay rent and if the rent was not paid, the plaintiff was to file
rent case rather suit for specific performance of contract. He lastly
argued that appeal may be dismissed and judgment passed by the trial
Court be upheld. He relied upon the case law reported as 2002 CLC
918 Lahore and PLD 2003 Peshawar 46.
 -4-

8. Learned DDA for official respondents Nos.1 to 3, argued

that appellant failed to examine two attesting witnesses of document
Ex.26/B as required by Article 79 of Qanoon-e-Shahdat Order, 1984. He
further argued that the proprietor/owner of the company was not
joined as one of the defendants because the respondent No.4 was
representing the company being agent of its principal and certainly the
suit for the acts of the agent on behalf of the principal was to be filed
against the principal and not against the agent. He finally argued that
not only suit filed by the appellant/plaintiff was time barred but the
appeal filed before this Court is also filed with delay of certain days
which is not explained in the affidavit to application filed for condoning
such delay, therefore, the appeal filed may be dismissed and judgment
passed by trial Court may be upheld.
9. I have heard learned counsel for the parties and gone
through the material available on record including the case laws relied
upon by learned counsel for respondent.
Now point for determination of the lis, are as under:

POINTS

(i) Whether impugned judgment and decree 27.05.2016

respectively require any interference of this Court?.

(ii) What should the judgment be?

My findings on points (I) and (II) are as under:-

FINDINGS
POINT NO.I In negative.
POINT NO.II Appeal dismissed.

REASONS
POINT NO.I

10. It is matter of record that the above appeal was filed after
the period of Limitation, therefore, an application U/S 5 of the
Limitation Act, 1908 having supported with affidavit was also filed,
which was ordered to be heard and decided along with the main
appeal. Admittedly, the learned trial Court has mainly based its
findings in the judgment and decree assailed through above appeal on
the grounds that the agreement to sale arrived at in between the
parties was one which was lacking ingredients of contract to sale and
secondly that the suit filed by the appellant/plaintiff was barred by law.
At Para Nos.2,3 and 4 of the plaint, it is stated that on 14.06.2006
respondent/defendant No.4 booked a flat No.4 admeasuring 859 Sq ft,
first Floor, Shelter Housing Company, Station Road, Hyderabad to
appellant against
-5-
the sale consideration of Rs.756,920/- which was paid up by the
appellant/plaintiff and that it was agreed upon that
respondent/defendant No.4 shall handover the possession to the
appellant/plaintiff within 16 months and after expiry of these 16
months, if respondent/defendant No.4 fails to handover the possession
of the suit flat to the appellant/plaintif, the respondent/defendant No.4
shall pay rent as per market rate to the appellant/plaintiff. This is what
which was deposed by the plaintiff and his same version went
unrebutted as the defendants did not contest the matter. The plaintiff
also produced on record payment receipt at Ex.26/A and agreement to
sale at Ex.26/B. A minute look at the alllaged agreement to sale
Ex.26/B transpires that it was executed on 14.06.2006 and it also
provides a condition that the company shall not handover the
possession of flat to the purchaser within 16 months, the company
shall pay the rent according to rule to the purchaser. This document
bears signatures of marketing manager on behalf of
respondent/defendant No.4, two witnesses and the vendee. Admittedly
the suit was filed by the appellant/plaintiff on 04.02.2015 after the
period of about 07 years and 04 months after those 16 months. If after
expiry of 16 months from the date of execution of sale agreement, the
respondent/ defendant No.4 did not pay the rent of suit flat to the
appellant/plaintiff, he was to file suit within 03 years from those 16
months because time was essence of contract as provided under
Article 113 of the Limitation Act 1908 but he failed to do and if it is so;
the very suit filed by the appellant was barred by law. Not only the suit
was filed with long standing delay but the appeal filed against the
judgment and decree of the learned trial Court, was also filed with
delay of about 06 days as the judgment and decree were passed on
27.05.2016 while the appellant/plaintiff applied for copies on
28.06.2016, after expiry of appeal period. Even thereafter copies
supplied to the appellant on 29.06.2016 while appeal was filed on
04.07.2016 and the explanation behind such delay given in the
supporting affidavit of the application filed U/S. 5 of the Limitation Act,
1908 is that the appellant/plaintiff was not having knowledge as his
previous counsel did not inform him about fate of the suit. A look at the
judgment of the trial Court shows that the same counsel, who has
argued out the present appeal, was representing the appellant/plaintiff
before the trial Court, therefore, to say that his earlier counsel did not
intimate him about the fate of the proceedings, the like explanation is
of no avail to him. Further, it is the case of the plaintiff that he
purchased the suit flat from respondent No.4 by a written agreement
to sale for which he also paid up the entire sale money but he failed to
examine the attesting witnesses of the allaged agreement to sale as
provided U/S. 79 of the Qanun-e-Shahdat Order 1984. In this regard, it
has been held in the case law reported as 2017 YLR Note 33 [Lahore]
that the
 -6-

marginal witnesses of agreement to sale were not produced in the

Court and if it is so; the alleged agreement to sale was inadmissible in
evidence. Not only this, but he also failed to examine the official
witnesses of the custodian department to see as to whether the vendor
was owner of the suit flat or not. Furthermore, the suit filed was also
bad for non-joinder of necessary parties as the respondent No.4
allegedly acted as Marketing Manager on behalf of his principal,
therefore, the principal/owner of the company of respondent No.4 was
necessary party but he was not joined as one of the respondents.
11. In view of above discussion, I am of the humble opinion
that the judgment and decree passed by learned trial Court do not call
for interference by this Court. I therefore, answer point No.1 in the
negative.

POINT NO.II
11. In the light of the discussion aforesaid, the impugned
judgment and decree passed by learned trial Court do not call for
interference by this Court. Accordingly, the instant appeal is dismissed
and impugned judgment and decree dated 27.05.2016 are maintained.
So far sale amount allegedly paid by the appellant vide document
Ex.26/A in respect of the alleged agreement to sale Ex.26/B, the
appellant may exhaust the remedy as provided under Section 65 of the
Contract Act, 1872, if law permits him and if he so desires.The parties
to bear their own costs. Let the office to prepare such decree.
Announced in open court,
Given under my hand & seal of this Court, this the 15th day of April, 2019

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
 HOW TO VERIFY THIS DOCUMENT
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2CADE41B98FB9501EB291FDA31D43C5C
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE, HYDERABAD
Family Appeal No.118 of 2017
Mst. Noureen D/o Muhammad Rafique………………………………………………………………………..Appellant.
VERSUS
Naeem Ahmed S/o Muhammad Saleem……………………………………………………………………Respondent.

Mr. Saleem Hussain Memon, learned Advocate for

appellant.
Ms. Samreen Jabeen, learned Advocate for respondent

JUDGMENT
15.05.2019
This judgment shall dispose of aforesaid Family Appeal filed by appellant
against judgment and decree dated 11.10.2017 passed by Family Judge, Hyderabad, in
Family Suit No.415 of 2017, whereby learned Family Court dismissed the suit and
granted “Khula” in lieu of the dower amount Rs.50,000/- as per Nikahnama.
2- Concisely, facts of the case are that respondent/plaintiff filed Suit for
Restitution of Conjugal Rights stating that on 15.04.2014 the plaintiff was married to
defendant against the Haq Mehar of Rs. 50,000/-. The marriage tie was going on every
step of life but unfortunately due to intervention of the parents of the defendant and
her relatives, some differences arose between the spouse. Thereafter the mother,
maternal grandfather and brother of the defendant came at the house of plaintiff and in
absence of plaintiff they taken away the defendant and valuable articles including gold
ornaments. Since leaving of the house of the plaintiff, the defendant is being forced,
tortured and harassed and on the instigation of her parents defendant filed suit for
dower amount, recovery of dowry articles and maintenance by alleging therein that
plaintiff had given her verbal divorce/talaq whereas the defendant is still legally wedded
wife of the plaintiff and she is not given divorce by the plaintiff up till now. The plaintiff
tried his level best to contact with his wife, but the parents of defendant used abusive
language, misbehaved tortured and threatened that if plaintiff ever came to their house
or contacted with defendant he will be implicated in false cases or murdered. Hence,
this suit with following prays:-
(a) That, this Honourable Court may be pleased to pass judgment and decree
for restitution of conjugal rights in favour of plaintiff, directing the
defendant to join and perform conjugal rights according to injunction of
Islam, Quran and Sunna.
(b) Cost of the suit be borne by the defendant.
(c) Any other relief which this Honourable Court may deem fit just and
proper under the circumstances of the case.
 -2-
3- After institution of the suit, notice was issued to defendant/appellant,
who after service appeared and filed an application along with her affidavit before the
trial Court stating that the plaintiff given her Talaq in presence of witnesses and she
after completing her iddat period filed Family Suit No.891/2016 which was decreed in
her favour. R & Ps shows that on 11.10.2017 pre-trial proceedings were held, however,
the appellant/defendant refused to join the respondent/plaintiff at any cost on the
ground that respondent/plaintiff already pronounced her Talaq, he is her no more
husband and that she has no objection, if Khula is granted to her as she is not willing to
reside respondent/plaintiff. In this regard statement dated 11.10.2017 is also finding
place on the record which shows that the same was got recorded by the appellant/
defendant at the stage of pre-trial on oath. Having such position, the suit of the
respondent /plaintiff was dismissed while the plea of the appellant/defendant by her
during pre-trial proceedings was granted and thereby marriage between the parties was
dissolved on the ground of Khula in lieu of paid dower amount of Rs.50,000/-.

4- Learned counsel for the appellant/defendant argued that since the

respondent already given Talaq to appellant in presence of Mohallah people, therefore,
the judgment passed by the trial Court dissolving the marriage dissolved on the ground
of Khula is misreading and non-reading of the contents of application and her statement
dated 11.10.2017 recorded during pre-trial proceedings, therefore, judgment and
decree passed by learned trial Court may be set-aside. Addressing the delay in filing
appeal, he argued that, no doubt, the appeal was filed on 25.11.2017 after delay of
about 14 days but this time was consumed in obtaining copies, therefore, appeal filed
was within the period of limitation. He lastly argued that appeal may be allowed as
prayed.
5- On the other hand learned counsel for respondent argued that there is
inordinate delay of 14 days in filing appeal and inspite of that even application for
condoning such delay was not filed, therefore, on this score alone, the appeal filed, may
be dismissed being time barred. She further argued that during pre-trial proceeding,
appellant herself prayed for Khula in her statement dated 11.10.2017 recorded during
pre-trial proceedings, therefore, suit filed by the respondent was dismissed and Khula as
prayed for by appellant was granted by the trial Court in lieu of dower amount, thus, the
judgment and decree passed by the trial Court is lawful which also not call for
interference by this Court, therefore, appeal be dismissed with costs.
6- I have careful considered the submissions of learned counsel for both the
parties at length and gone through the record and R & Ps of learned trial Court.
7- From the aforementioned facts and circumstances, I frame the following
points for determination:
1. Whether appeal is not barred by limitation?
 -3-
2. Whether judgment and decree passed by learned trial Court suffer from
any illegality and irregularity and require interference by this Court?
3. What should the decree be?
8- My findings on point Nos.I, II and III are as under:
FINDINGS
POINT NO.I Affirmative.
POINT NO.II In negative.
POINT NO.III Family appeal dismissed.
REASONS
POINT NO.I
9- As far as the argument of learned counsel for respondent/plaintiff that
appeal filed is time barred, record shows that judgment and decree were delivered on
11.10.2017 while appeal was filed on 25.11.2019. Photostat copies of these two
documents made from certified true copies annexed with the memo of appeal show
that application for obtaining certified true copies was filed on 13.11.2017 after two
days of the prescribed period of limitation while copies were supplied to appellant on
25.11.2019 as this is the date on which she deposited the cost. No doubt, copies were
supplied to appellant after the delay of 12 days but this delay did not occur on the Court
side as she herself deposited the cost after such delay. Be that as it may, if it is
presumed to be correct that such delay of 12 days is to be deducted from the period of
limitation, yet as is discussed above, the appeal is barred by two days of the prescribed
period of limitation, however no ground whatsoever is taken in the appeal nor proper
application was filed in this regard for condonation of such delay. Furthermore, the
learned counsel for appellant/defendant simply argued that appeal filed is within the
period of limitation and he even did not give explanation as to filing of application for
copies after two days period of limitation. It is the mandate of the law that invoking of
remedy by some aggrieved person beyond the prescribed period of limitation creates
valuable legal rights in favour of the opposite party and in such cases delay of each day
is to be explained by defaulting party but this is the case in which even the appellant/
defendant did not consider it proper to file such application, what to say of explanation
of each day. In this regard, reliance is placed upon the case law reported as 2013 SCMR
1415 (Supreme Court of Pakistan) that;-
“Delay in availing remedy---Condonation of delay---Scope---Invoking of
remedy by some aggrieved party beyond the prescribed period of
limitation created valuable legal rights in favour of the opposite party,
therefore, in such cases delay of each day was to be explained by the
defaulting party to the satisfaction of the court, which could not be
condoned lightly or as of routine, as such arbitrary exercise of discretion
would cause serious prejudice to the interest of the opposite party”.

10- In view of above discussion, the point in hand is answered in the

affirmative.
-4-
POINT NO.II
11- Admittedly, by Family Suit bearing No.415 of 2017 the respondent/
plaintiff prayed for Conjugal Rights requesting the Court that appellant/defendant may
be directed to join him and observe the conjugal rights according to Muhammadan Law.
Record shows that appellant/defendant filed application Ex.7 in which she taken plea
that respondent in presence of witnesses given her Talaq and she also observed Iddat
period and further she filed Family Suit bearing No.891 of 2016 for recovery of dowry
articles and maintenance which was decreed in her favour and the suit filed by
respondent carry no weight and the same is filed just to pressurize her. Record shows
that the learned trial Court conducted pre-trial proceedings during which appellant
refused to join the respondent/plaintiff at any cost on the ground that respondent/
plaintiff already pronounced her Talaq and that she has no objection, if Khula is granted
to her as she is not willing to reside with respondent/plaintiff. In this regard statement
dated 11.10.2017 is also finding place on the record which shows that the same was got
recorded by the appellant/ defendant at the stage of pre-trial on oath. Having such
position, the suit of the respondent /plaintiff was dismissed while the plea of the
appellant/defendant taken by her during pre-trial proceedings was granted and thereby
marriage between the parties was dissolved on the ground of Khula in lieu of paid
dower amount of Rs.50,000/-. The learned counsel for appellant/defendant during
argument did not deny the contents of statement dated 11.10.2017 to had been got
recorded by the appellant/defendant during pre-trial proceedings nor such plea is taken
by the appellant in the appeal that no such statement was recorded. If it is so; to my
humble opinion the Family Court pronounced the judgment of Khula in lieu of dowr
amount in accordance with law while dismissing the suit of Conjugal Rights, hence the
judgment and decree of the trial Court do not suffer from any illegality, therefore, point
in hand is answered as negative.
POINT NO.III
12- In view of above discussion, I am of the considered view that the
judgment and decree of learned trial Court do not call for interference by this Court,
therefore, same are upheld and resultantly the instant family appeal stands dismissed,
however, with no order as to costs. Decree to follow the judgment. The office is directed
to send the R & Ps with copy of judgment to learned trial Court and assigned the file to
record.
Announced in open Court.
Given under my hand and Seal of the Court dated this 15th day of May
2019.

(MUHAMMAD FAZIL BOHIO)

VI-ADDITIONAL DISTRICT JUDGE, HYDERABAD.
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5D116F7474D7B5F1AA564D0F139CB12A
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE, HYDERABAD .

Succession Application No.79 of 2019

Syed Zulfiqar Ali Shah S/o Late Syed Ishaque Shah

Muslim, adult, R/o Muhallah New Hyderi Town
Phuleli Par, Taluka Latifabad Hyderabad.……………...………………….Applicant.

Versus

1. Mst. Aisha Bibi Wd/o Late Syed Ishaque Shah

2. Mst. Fozia D/o Late Syed Ishaque Shah
3. Syed Waqar Ali Shah S/o Late Syed Ishaque Shah
4. Syed Shaharyar Ali Shah S/o Late Syed Ishaque Shah
All Muslims, adult, R/o Muhallah new Hyderi Town
Phuleli Par, Latifabad, Hyderabad
5. The General Public at Large…………………………………………Opponents.
Mr. Sameeullah Rind, advocate for the applicant

ORDER
15.05.2019
This order shall dispose of present succession application
filed U/s 372 of Succession Act, 1925 by the applicant in which it is
stated that deceased Syed Ishaque Ali Shah S/o Syed Allah Dino Shah,
died on 21.12.2018 leaving behind him applicant and opponents Nos.1
to 4 as his surviving legal heirs, out of them, opponents Nos.2 to 4
were born from the first wife of deceased namely Bibi Allah Bachai,
who was divorced by deceased during his lifetime. The deceased was
government employee of Police Department serving as police
constable, who left service benefits and an account in the National
Bank of Pakistan, Fatima Jinnah Road Branch, Hyderabad. The
applicant approached the concerned authorities and bank for providing
the service benefits but to no avail.

In support of the case, the affidavits of two independent

witnesses namely Dinal Shah S/o Syed Anwar Shah and Syed Pinyal
Shah S/o Mehboob Shah are filed, who have stated that there is no
other legal heir of deceased except the applicant and opponent Nos.1
to 4. Apart from this, affidavit of opponents Nos.2 to 4 are also filed,
who have extended no objection in favour of applicant, however,
opponent No.1 did not appear though served with notice whereas first
wife of deceased namely Mst. Shabana Bibi @ Allah Bachai appeared
and filed statement dated 03.04.2019 supported with affidavit wherein
she stated that she was divorced by Syed Ishaque Shah on 23.02.2007
and then she married with one Muhammad Jawaid and that she has no
concern with the instant application and she is no more share holder of
deceased.
 -2-
Heard learned counsel for applicant and perused the

material available on record.

The applicant has prayed for succession certificate in

favour of applicant and opponent No.1 to 4 to receive amount lying in
the account of deceased and his service benefit shown in the schedule
annexed with the instant application as he was serving in Police
Department as Police Constable. The notice was published in daily
newspaper “Ibrat” dated 07.03.2019, however, nobody has come
forward to object to the prayer made by the applicant. In addition to
this, report was called from Mukhtiarkar concerned who vide his letter
dated 10.04.2019 reported that deceased died leaving behind the
applicant and opponent No.1 to 4 as his legal heirs. This is what which
is reported by SHO Police Station Tando Yousuf, Hyderabad vide letter
dated 18.03.2019. The Deputy Director NADRA Hyderabad Zone in his
report dated 11.03.2019 has also shown family details of deceased as
opponent No.1 and Bibi Allah Bachayi as widows, applicant and
opponents Nos.3 & 4 as sons, however, opponent No.2 is not shown as
legal heir of deceased but her name was reported by concerned SHO
and Mukhtiarkar in their respective reports to be one of the legal heir
of deceased. In addition to this, SSP Hyderabad vide letter dated
13.04.2019, has reported that deceased Syed Ishaque Ali Shah left
Rs.771,426/- as Gratuity, Rs.315,120/- as Leave Salary, Rs.350,000/- as
Group Insurance, Rs.300,000/- as Financial Assistance, GP Fund Final
Payment as per deduction, pension as per rules, however, Manager
NBP Fatima Jinnah Road Branch, Hyderabad, reported that deceased
was maintaining account No.3054515002 and left zero amount in the
account.
Record shows that there is no impediment nor any will has
been found. To a query, regarding the first wife of deceased because
her name does not find place in the memo of application as one of the
legal heirs of deceased, the learned counsel for applicant argued that
Syed Ishaque Ali Shah had given divorce to the deceased in writing
and such statement has been filed by her and that since the deceased
was Government employee, the Mukhtiarkar Taluka Latifabad on the
application submitted by his son, conducted spot enquiry and issued
Heirship Certificate which does not reflect Bibi Allah Bachai as legal
heir of deceased due to the fact that he had given divorce to her.
Admittedly, the notice was published in the daily newspaper “Ibrat” but
nobody turned up which fact goes to support the arguments advanced
by learned
 -3-

counsel for applicant. It is observed that legal-heirs of deceased can

inherit the property belonging to the deceased but since the
pensionary benefits which includes General Provident Fund etc was not
the asserts of deceased in his lifetime but same is grant of
Government, granted on death of deceased cannot be distributed
amongst the other legal heirs of deceased and only the widow of
deceased namely Mst. Aisha Bibi is entitled to receive the same and
the other legal-heirs of deceased being sons and daughter are not
entitled for the same. Therefore, for the aforesaid reasons, the
application is allowed. The Accountant District and Sessions Court,
Hyderabad is appointed as Commissioner with directions to collect the
entire due amount of service benefits of deceased i.e. Rs.771,426/- as
Gratuity, Rs.315,120/- as Leave Salary, Rs.350,000/- as Group
Insurance, Rs.300,000/- as Financial Assistance, GP Fund Final
Payment as per deduction, pension as per rules from concerned
quarter and as per Government/Pensionary Rules disburse in between
applicant and opponent No.2 to 4 being legal heirs of deceased as per
their respective shares subject to furnishing P.R. Bond of the applicant
in equivalent amount shown in the balance of the deceased and such
report be submitted before this Court. However, opponent No.1 is not
appeared, therefore, her share be kept in safe custody and deposited
in a profitable Government scheme, which shall be withdrawn on her
appearance after proper verification and identification. The Succession
Application stands disposed of accordingly.
Pronounced in open Court.
Given under my hand and the seal of this Court on this 15 th day
of May, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE, HYDERABAD
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Document Code: FB0BF105A68BFBC5DD924C2D8CF6C225

IN THE COURT OF VITH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.

Sessions Case No.27 of 2019
The State
Versus
Sartesh S/o Suleman Pathan……………………………….………………………………Accused.
Crime No.146/2018
P.S. Hali Road Hyderabad
U/s 23-A(i) Sindh Arms Act

Mr. Mujeeb Qadir Memon, learned A.D.P.P for the State

Mr. Sameeullah Rind, learned counsel for accused

J U D G M E N T
15-05-2019

The above named accused has been sent up to stand his

trial in the above case and crime by Police Station Hali Road for the
offence punishable U/s 23-A Sindh Arms Act, vide challan admitted on
12.12.2018.
2. The very charge against the accused as disclosed in the
FIR is that on 25.11.2018 at 0130 hours complainant arrested the
accused from Lal Tank, American Quarter, Hyderabad, in presence of
mashirs PC Muhammad Amir and PC Amir Farooqui and found him in
possession of an unlicensed 30-Bore T.T. pistol having black strips on
both sides of butt without number alongwith magazine and two live
bullets under such memo was prepared and singed at spot. Thereafter
case property was sealed and then accused and property were brought
at Police Station where instant FIR was registered.
3. As result of investigation, the investigation officer
submitted challan against the accused before the area Magistrate, who
accepted the challan and sent up the case to the Court of Honourable
Sessions Judge, Hyderabad, on jurisdictional ground and wherefrom the
R & Ps received by this Court for its disposal according to law.
4. In compliance of Section 265-C Cr.P.C. necessary case
papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.2, to which he did
not plead guilty and claimed to be tried vide his plea was recorded at
Ex.2/A.
5. Prosecution examined complainant ASI Muhammad
Shahbaz as PW-1 at Ex.3, he produced memo of arrest and recovery at
Ex.3/A, FIR at Ex.3/B, mashir of the incident PC Muhammad Amir as
PW-2 at Ex.4 and Investigating Officer ASI Wasand Rai as PW-3 at Ex.5,
he produced memo of wardat at Ex.5/A and expert opinion report at
Ex.5/B. Thereafter learned ADPP for the State closed the side in
evidence vide his statement at Ex.06.
 -2-
6. Statement U/s 342 Cr.P.C. of accused was recorded at
Ex.07, who denied all the allegations leveled against him by the
prosecution and claimed to be innocent, however, he did not opt to
examine himself on oath or produce witnesses in defence.
7. Learned D.D.P.P. for the State argued that prosecution
witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
8. Learned counsel for the accused, on the other hand,
argued that prosecution case is highly doubtful contending further that
there is no cogent evidence with the prosecution and that P.Ws
examined have contradicted to each other on material facts. He further
argued that the accused is innocent, he was arrested from his house,
then he was involved in this false case, therefore, they may be
acquitted from the charge.
9. I have heard learned A.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-
(i) Whether on 25.1.2018 at 0130 hours accused was arrested
from Lal Tank, American Quarters, Hyderabad, by the
complainant party under preparation of mashirnama in
presence of mashirs and found him in possession of an
unlicensed 30-Bore T.T. pistol having black plastic strips on
both sides of butt without number alongwith magazine and
two live bullets?

(ii) What offence if any has been committed by the accused?.

My findings on points (I) and (II) are as under:-
FINDINGS
POINT NO.I Doubtful/Not proved.

POINT NO.II Accused is acquitted U/s 265-H(i) Cr.P.C.

REASONS
POINT NO.I
10. To prove its case, prosecution examined 03 witnesses. PW-
1 & 2 are examined as the witnesses of arrest and recovery. PW-1 in
his chief while supporting other material aspects of the matter did not
disclose particular number of police mobile number, Roznamcha entry
and time by which he left the police station and thereafter he made
arrest of accused and effected recovery of unlicensed weapon and
ammunition from him. This is what which is admitted by him in his
cross. If it is so; the suggestion put from him that he neither arrested
the accused from the shown place nor effected recovery of pistol and
ammunition from the accused, which he though denied but such denial
carries no weight in law. He claimed that he with his own hand, written
-3-

the memo of arrest and recovery and so also registered the FIR but he
watching these documents deposed that “it is fact that there is clear
difference in between the handwriting of these two documents. It is
correct to suggest that though these documents appear to have been
written by two hands”. If it is so; the above inconsistent statement
which too by the complainant made the prosecution case as whole to
be of doubtful. In addition to this, he deposed that accused watching
them started running towards eastern side from them but they
apprehended him after he covered the distance of about 10/15 paces
whereas PW-2 deposed otherwise that the accused watching them
started running towards northern side from them but they
apprehended him after he covered about 05 paces. It is matter of
record that per memo of arrest and recovery Ex.3/A and so also FIR
Ex.3/B, the pistol is shown to have been recovered from the left side
fold of the Shalwar of the accused whereas PW-2 in his chief deposed
otherwise that it was recovered from the right side fold of the Shalwar
of the accused. This PW though claimed in his examination in chief that
document Ex.3/A which is memo of arrest and recovery and that of the
document Ex.5/A which is memo of wardat do bear his signature.
However, he in his cross deposed otherwise that his signature on
document Ex.3/A and 5/A differs from each other for which he made a
line of volunteer statements deposing that his signatures shown on
these documents are not those which were put by him at the relevant
point of time and that the documents which he had signed are not
produced before the Court. If it is so; there is no cavil to observe that
prosecution has miserably failed to connect the accused with
commission of the offence and entire story has happened to be full of
flaws and material irregularity, therefore, the point under discussion is
answered as negative.
POINT NO.II
11. In view of the aforementioned appraisal of evidence, I am
of the humble view that the prosecution has miserably failed to bring
home the charge against the accused beyond any shadow of
reasonable doubt, hence, accused Sartesh S/o Suleman Pathan is given
benefit of doubt and stands acquitted of the charge U/s 265-H(i) Cr.P.C.
He is present on bail, his bail bond stands cancelled and surety is
discharged.
 Pronounced in open Court this 15th of May 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
 -4-

CASE PROPERTY ORDER U/S 517 CR.P.C

The case property shown in the charge sheet viz. 30-Bore
T.T pistol having black plastic strips on both sides of butt alongwith
magazine and two live bullets be deposited in District Armoury for its
disposal according to law after expiry of appeal period.
Dated this 15th of May, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
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82CB52F486D111B639A0D756D44F8C30

IN THE COURT OF VITH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.

Sessions Case No.173 of 2019
The State
Versus
Nadeem S/o Muhammad Daim Sarwari Faqeer………………………………Accused.
Crime No.06/2019
P.S. Tando Jam Hyderabad
U/s 23-A(i) Sindh Arms Act

Mr. Mujeeb Qadir Memon, learned A.D.P.P for the State

Mr. Muhammad Saleem Pathan, learned counsel for
accused

J U D G M E N T
18-05-2019

The above named accused has been sent up to stand his

trial in the above case and crime by Police Station Tando Jam for the
offence punishable U/s 23-A Sindh Arms Act, vide challan admitted on
16.02.2019.
2. The very charge against the accused as disclosed in the
FIR is that on 19.01.2019 at 2100 hours complainant arrested the
accused from Bilori Shakh near Village Dhamach, Hyderabad, in
presence of mashirs PC Muhammad Thebo and PC Asad Unar and
found in possession of an unlicensed T.T. pistol alongwith magazine
containing 04 live bullets under such memo was prepared and singed
at spot. Thereafter case property was sealed and then accused and
property were brought at Police Station where instant FIR was
registered.
3. As result of investigation, the investigation officer
submitted challan against the accused before the area Magistrate, who
accepted the challan and sent up the case to the Court of Honourable
Sessions Judge, Hyderabad, on jurisdictional ground and wherefrom the
R & Ps received by this Court for its disposal according to law.
4. In compliance of Section 265-C Cr.P.C. necessary case
papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.2, to which he did
not plead guilty and claimed to be tried vide his plea was recorded at
Ex.2/A.
5. Prosecution examined complainant ASI Ali Khan as PW-1 at
Ex.3, he produced departure and arrival entry at Ex.3/A, memo of
arrest and recovery at Ex.3/B, FIR at Ex.3/C, entry of Malkhana at
Ex.3/D, mashir of the incident PC Muhammad Thebo as PW-2 at Ex.4
and Investigating Officer ASI Khadim Hussain as PW-3 at Ex.5, he
produced memo of wardat at Ex.5/A and expert opinion report at
Ex.5/B. Thereafter learned ADPP for the State closed the side in
evidence vide his statement at Ex.06.
 -2-

6. Statement U/s 342 Cr.P.C. of accused was recorded at

Ex.07, who denied all the allegations leveled against him by the
prosecution and claimed to be innocent, however, he did not opt to
examine himself on oath or produce witnesses in defence.
7. Learned D.D.P.P. for the State argued that prosecution
witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
8. Learned counsel for the accused, on the other hand,
argued that prosecution case is highly doubtful contending further that
there is no cogent evidence with the prosecution and that P.Ws
examined have contradicted to each other on material facts. He further
argued that the accused is innocent, he was arrested from his house,
then he was involved in this false case, therefore, they may be
acquitted from the charge.
9. I have heard learned A.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-
(i) Whether on 19.01.2019 at 2100 hours accused was
arrested from Mori Bilori Shakh, near Village Dhamach,
Hyderabad, by the complainant party under preparation of
mashirnama in presence of mashirs and found him in
possession of an unlicensed T.T. pistol alongwith magazine
and four live bullets?

(ii) What offence if any has been committed by the accused?.

My findings on points (I) and (II) are as under:-
FINDINGS
POINT NO.I Doubtful/Not proved.

POINT NO.II Accused is acquitted U/s 265-H(i) Cr.P.C.

REASONS
POINT NO.I
10. To prove its case, prosecution examined 03 witnesses out
of which PW-1 & 2 are examined as the witnesses of arrest and
recovery. As regards the recovery of 30-Bore T.T. pistol and bullets,
both these PWs are not concur to each other regarding the material
aspect of the matter. First of all both these PWs made contradictory
statement as to colour of the pistol as PW-1 introduced its colour as
blackish light golden while PW-2 deposed that it was of blackish colour.
However, both these PWs to a suggestion deposed in the same breath
that the pistol produced before this Court in sealed parcel as case
property is of white steel colour. PW-1 deposed that all the four bullets
recovered from accused were of light golden colour but watching them
deposed
-3-

that two bullets out of four are not so. It is the case of the prosecution
that in addition to 30-Bore T.T. pistol, bullets and four Pak currency
notes of Rs.50/- were also recovered from the side pocket of shirt of
accused. These PWs in their respective examination-in-chief deposed
differently to each other as PW-1 deposed that the notes were
recovered from the side pocket of shirt of accused whereas PW-2
deposed otherwise that those notes were recovered from the front side
pocket of his shirt. Yet reserved column of case property in the challan
sheet is silent as to recovery of any currency note from accused. This
is what which is admitted by PW-1 in his cross also. PW-1 claimed that
he left the Police Station in his own personal Mehran Car of golden
colour but he shown his ignorance as to its registration number. This
PW further admitted that the fact regarding leaving in Mehran Car of
golden colour is not mentioned in the memo of arrest and recovery nor
its registration number is written there under. This PW further deposed
that the accused was wearing light green Shalwar Qameez. To this
aspect of the matter, PW-2 to a chain of questions, shown his
ignorance deposing that he does not know registration number of Car,
he does not know the colour of clothes of the accused, he does not
know colour of the car, he does not know its registration number etc.
Further, PW-1 deposed that accused was standing on the northern side
Bank of Shakh wherefrom he was arrested whereas PW-2 deposed
otherwise that accused was found standing on the left Bank of Shakh
which was facing from eastern side. PW-1 in his chief produced entry
by which property was deposited in Malkhana at Ex.3/D but he
watching the same deposed that there is overwriting to its date which
was firstly written as 29.01.2019 and thereafter overwritten as
19.01.2019. This PW further admitted that memo of arrest and
recovery does not mention that investigation bag was with them
containing material with which property was sealed. To this aspect of
the matter, PW-2 in his chief remained silent as to whether the
property recovered was sealed at the spot and this fact he also
admitted in his cross. PW-1 deposed that there was distance of about
half kilometer in between Police Post Tando Qaiser and the Tando
Qaiser City which is the place of information and due to this reason he
could not call private persons from that city whereas PW-2 deposed
otherwise that police post Tando Qaiser and Tando Qaiser City are
situated adjacent to each other and that the complainant did not pick
private persons from that City. As regards the evidence of PW-3, his
statement is also not free from doubt because he claimed that he after
receiving the papers, custody of accused and property, visited place of
occurrence and prepared such memo which he also brought on record
at Ex.5 and claimed that the same was prepared in presence of
mashirs. The first mashir of this document is shown as Muhammad
Thebo who is examined as PW-2 but this witness did not depose a
-4-

single word as to whether investigation officer visited the place of

occurrence and prepared such memo in his presence or not. PW-3
further claimed that he also sent the property to the expert for opinion
but he in his cross deposed that he sent the property to the expert for
opinion on 28.01.2019 after the period of about 08 days and this delay
he has not explained in his chief. To my view, the prosecution has
miserably failed to connect the accused with the commission of
offence. Accordingly, the point, under discussion, is answered in the
negative.
POINT NO.II
11. In view of the aforementioned appraisal of evidence, I am
of the humble view that the prosecution has failed to bring home the
charge against the accused beyond any shadow of reasonable doubt,
hence, accused Nadeem S/o Muhammad Daim Sarwari Faqeer is given
benefit of doubt and stands acquitted of the charge U/s 265-H(i) Cr.P.C.
He is produced in custody, he is remanded back to custody with
directions to release him forthwith, if he is not required in any other
custody case/crime.
Pronounced in open Court this 18th of May 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
CASE PROPERTY ORDER U/S 517 CR.P.C
The case property shown in the charge sheet viz. one T.T
pistol alongwith magazine containing 04 live bullets be deposited in
District Armoury for its disposal according to law after expiry of appeal
period.
Dated this 18th of May, 2019.
 (MUHAMMAD FAZIL BOHIO)
VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
IN THE COURT OF VITH ADDITIONAL SESSIONS JUDGE, HYDERABAD
Sessions Case No.828 of 2015

The State-----------------------------------------Vs.----------------------------------------Zeeshan.
Crime No.223/2018
PS: Cantonment
U/S: 334, 506(2), 34 PPC

Mr. Muhammad Nadeem Sehto, advocate for the accused.

Mr. Mujeeb Qadir Memon, A.D.P.P for the State.
Mr. Muhammad Aslam Chandio, Advocate for complainant.

ORDER ON APPLICATION U/S 345(ii) Cr.P.C.

ORDER
18.05.2019

Heard arguments of learned counsel for the parties, also perused the
material available on record and further heard the complainant/injured Jehangir
Arain in person.
Learned counsel for the respective parties and parties concerned seek
permission to compound the offence on the ground that both the parties have
patched the dispute on the intervention of Nekmards and they intend to maintain
cordial relations in future.
Learned A.D.P.P has submitted that since main offence is
compoundable, therefore, he withdrawing section 506(2) PPC, raised his no
objection, if permission is accorded to compound the offence.
It appears that both the sides are willing for initiating the mediation
process in order to resolve the dispute amicably and according to them, they want
to live peacefully in future and maintain cordial relations to each-other. Honourable
Apex Courts have encouraged the compromise process in the matters where the
offence is made compoundable in schedule attached to the Cr.P.C. Learned A.D.P.P
has recorded his no objection withdrawing non-compoundable offence, for grant of
permission. Accordingly, instant application stands allowed and permission is
granted to the parties to make mediation process for compounding the offences.
ANNOUNCED IN OPEN COURT
Given under my hand and the seal of the Court this 18 th day of May,
2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL: SESSIONS JUDGE, HYDERABAD
 HOW TO VERIFY THIS DOCUMENT
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IN THE COURT OF VITH ADDITIONAL SESSIONS JUDGE, HYDERABAD

Sessions Case No.828 of 2015

The State-----------------------------------------Vs.----------------------------------------Zeeshan.
Crime No.223/2018
PS: Cantonment
U/S: 334, 506(2), 34 PPC
Mr. Muhammad Nadeem Sehto, advocate for the accused.
Mr. Mujeeb Qadir Memon, A.D.P.P for the State.
Mr. Muhammad Aslam Chandio, Advocate for complainant.

ORDER ON APPLICATION U/S 345(vi) Cr.P.C.

ORDER
18.05.2019
Heard arguments of learned counsel for the parties, also perused the
material available on record and further heard the complainant/injured Jehangir Arain in
person.
Learned counsel for the respective parties and parties concerned seek for
passing of an order accepting the compromise arrived at in between the parties as they
have patched up matter with prior permission of this Court, therefore, compromise may be
accepted and thereby accused be acquitted.
Record shows that after usual investigation, challan was submitted in the
Court of area Magistrate showing accused as absconder, who sent up the R&Ps to the
Honourable District & Sessions Court, Hyderabad on jurisdiction ground and subsequently
the R&Ps were received by way of transfer for its disposal according to law. The matter was
proceeded U/S. 512 Cr.P.C, however, accused surrendered himself. Thereafter charge was
framed upon the accused vide Ex.8 on 25.03.2019 U/S. 336, 506(2), 34 PPC and today the
case was fixed for recording evidence of prosecution witnesses when both sides appeared,
filed the instant application including that of another applications for permission which was
allowed and pressed for order of acceptance of instant application regarding compounding
of the offence.
It appears that both sides have patched up and settled their differences
outside the court with prior permission of this Court and complainant/injured Jehangir
Arain has affirmed such compromise stating further that they in order to maintain
harmonious relations have entered to amicable settlement with the accused. Admittedly,
offences U/S. 336 PPC is shown as compoundable in the schedule attached to the Cr.P.C.
while offence falling U/S. 506(2) PPC being non-compoundable has been withdrawn by the
State Counsel. In these circumstances and in the interest of justice, compromise is accepted.
Accordingly, accused Zeeshan S/o Saleem Rajput is acquitted of the charge. He is produced
in custody, he is remanded back to custody with directions to release him forthwith, if he is
not required in any other custody case/crime.
ANNOUNCED IN OPEN COURT
Given under my hand and the seal of the Court this 18 th day of May,
2019.
(MUHAMMAD FAZIL BOHIO)
VITH ADDL: SESSIONS JUDGE, HYDERABAD
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5956AEE85A107B78AC674E94D0DBEC75
IN THE COURT OF VITH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.
Sessions Case No.252 of 2019
The State
Versus
Basheer S/o Azeezuddin Lakho……………………………………………………………Accused.
Crime No.16/2019
P.S. Tando Jam Hyderabad
U/s 23-A(i) Sindh Arms Act

Mr. Mujeeb Qadir Memon, learned A.D.P.P for the State

Mr. Abdul Nasir Lakho, learned counsel for accused

J U D G M E N T
20-05-2019

The above named accused has been sent up to stand his

trial in the above case and crime by Police Station Tando Jam for the
offence punishable U/s 23-A Sindh Arms Act, vide challan admitted on
28.02.2019.
2. The very charge against the accused as disclosed in the
FIR is that on 29.01.2019 at 2000 complainant arrested the accused
from Tando Qaiser Link Road near Drub Colony, Tanod Jam Hyderabad,
in presence of mashirs PC PC Jawaid Ahmed and PC Ifthikar Ahmed and
found him in possession of an unlicensed pistol of 12-Bore alongwith
one live cartridge of 12-Bore under such memo was prepared and
singed at spot. Thereafter case property was sealed and then accused
and property were brought at Police Station where instant FIR was
registered.
3. As result of investigation, the investigation officer
submitted challan against the accused before the area Magistrate, who
accepted the challan and sent up the case to the Court of Honourable
Sessions Judge, Hyderabad, on jurisdictional ground and wherefrom the
R & Ps received by this Court for its disposal according to law.
4. In compliance of Section 265-C Cr.P.C. necessary case
papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.2, to which he did
not plead guilty and claimed to be tried vide his plea was recorded at
Ex.2/A.
5. Prosecution examined complainant ASI Mir Muhammad Ali
as PW-1 at Ex.3, he produced departure entry at Ex.3/A, memo of
arrest and recovery at Ex.3/B and FIR at Ex.3/C, mashir of the incident
PC Jawaid as PW-2 at Ex.4, he produced memo of place of incident and
Investigating Officer ASI Ali Khan as PW-3 at Ex.5, he produced entry of
Malkhana at Ex.5/A and entry of place of incident at Ex.5/B. Thereafter
learned ADPP for the State closed the side in evidence vide his
statement at Ex.06.
 -2-
6. Statement U/s 342 Cr.P.C. of accused was recorded at
Ex.07, who denied all the allegations leveled against him by the
prosecution and claimed to be innocent, however, he did not opt to
examine himself on oath or produce witnesses in defence.
7. Learned D.D.P.P. for the State argued that prosecution
witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
8. Learned counsel for the accused, on the other hand,
argued that prosecution case is highly doubtful contending further that
there is no cogent evidence with the prosecution and that P.Ws
examined have contradicted to each other on material facts. He further
argued that the accused is innocent, he was arrested from his house,
then he was involved in this false case, therefore, they may be
acquitted from the charge.
9. I have heard learned A.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-
(i) Whether on 29.01.2019 at 2000 hours accused was
arrested from Tando Qaiser Link Road near Drub Colony
Tando Jam, Hyderabad, by the complainant party under
preparation of mashirnama in presence of mashirs and
found him in possession of an unlicensed Cartoos pistol of
12-Bore alongwith one live bullet of same bore?
(ii) What offence if any has been committed by the accused?.
My findings on points (I) and (II) are as under:-
FINDINGS
POINT NO.I Doubtful/Not proved.

POINT NO.II Accused is acquitted U/s 265-H(i) Cr.P.C.

REASONS
POINT NO.I
10. To prove its case, prosecution examined 03 witnesses out
of which PW-1 and 2 are examined as the witnesses of arrest and
recovery. A minute look at the respective examinations in chief of
these PWs transpires that they are not in league to each other on
material pieces of evidence because PW-1 deposed that they received
spy information at Mir Colony regarding the availability of accused with
goat at the main gate of Drip Colony Tando Jam and he in his cross to
this aspect of the matter further deposed that he received spy
information while they were on the main road of Tando Jam whereas
PW-2 to this aspect of the matter deposed otherwise that they
received spy information inside the Mir Colony and he in his cross to
this aspect of the matter further deposed that the spy information was
received at the
-3-
distance of about 500 feet away from the main Tando Jam road. These
two PWs further are also not concur to each other as to the mode in
which the accused was shown to have been arrested. They also made
different but strange statements as to the pistol and cartridge
allegedly recovered from the accused. PW-1 deposed that the country
made pistol was entirely made of iron including that of its butt. This is
what which is deposed by PW-2 adding further that it was not having
any other metal/wood to it. However, these PWs watching the pistol
deposed in the same breath that the butt of the pistol is having two
wooden made strips which are having cut marks showing design on
them and same are wrapped with cotton made “Dori”. To this aspect of
the matter, PW-1 made a volunteer statement that the pistol which
was recovered was entirely made of iron, its butt was neither having
wooden made strips nor it was wrapped with Dori. As regards the
recovery of one cartridge, PW-1 shown his ignorance as to whether it
was of 04 number or it was SG whereas PW-2 deposed that the
cartridge recovered was of 04 number which was containing 200 plus
pallets but this PW watching the cartridge deposed that it is containing
09 pallets only and it is of SG company and not of 04 number.
According to PW-1, the accused was handcuffed by him whereas PW-2
deposed otherwise that the accused was made to sit in the mobile
without tying or and handcuffing his hands. As regards evidence of PW-
3, his statement is also not free from doubt because he deposed that
on 30.01.2019 vide entry No.5 at about 0830 hours he alongwith his
staff left police station and visited place of wardat under such memo
Ex.4/A and signed at spot. This document shows its time of preparation
as 0920 hours whereas attesting witness of this document viz. PW-2 in
his evidence deposed otherwise that on 30.01.2019 at about 08:00
A.M. PW-3 visited place of wardat and prepared such memo. In
addition to this, there are other inconsistent statements appearing in
the evidence of prosecution witnesses but those are unnecessary to be
discussed specially in view of the above discussion. To my view, the
prosecution has miserably failed to prove the point under discussion,
therefore, same is answered in negative.
POINT NO.II
11. In view of the aforementioned appraisal of evidence, I am
of the humble view that the prosecution has failed to bring home the
charge against the accused beyond any shadow of reasonable doubt,
hence, accused Basheer S/o Azeezuddin Lakho is given benefit of
doubt and stands acquitted of the charge U/s 265-H(i) Cr.P.C. He is
present on bail, his bail bond stands cancelled and surety is
discharged.
Pronounced in open Court this 20th of May 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
-4-

CASE PROPERTY ORDER U/S 517 CR.P.C

The case property shown in the charge sheet viz. one 12-
Bore desi pistol and one 12-bore live cartoos be deposited in District
Armoury for its disposal according to law after expiry of appeal period.
Dated this 20th of May, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
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Document Code: DE44EA04F820CB91F07B74F94261B6A9
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE, HYDERABAD .

Succession Application No.43 of 2019

Mst. Hajiyani Rashida Wd/o Arif Memon

Adult, Muslim, R/o House No.C-3
STRC Complex Saddar Hyderabad………...……………...
………………….Applicant.

Versus

1. Mst. Shahnila D/o Arif Memon

2. Mst. Saima Memon D/o Arif Memon
3. Mst. Paras Memon D/o Arif Memon
4. General Public at Large……………………………………………….Opponents.

Mr. Asim Shabir Soomro, advocate for applicant

ORDER
20.05.2019
This order shall dispose of present succession application
filed U/s 372 of Succession Act, 1925 by the applicant in which it is
stated that deceased Arif Memon S/o Ismail Wali Muhammad, died on
23.09.2017 leaving behind him the applicant and opponents Nos.1 to 3
as his surviving legal heirs. The deceased was government employee
and left pension amount in UBL Shahi Bazar Branch, Hyderabad. The
applicant approached the concerned bank for providing the pension
amount but to no avail.

In support of the case, the affidavits of two independent

witnesses namely Sharafuddin Ahmed S/o Nooruddin Junejo and
Sadaqat Ali S/o Arshed Hussain Pathan are filed, who have stated that
there is no other legal heir of deceased except the applicant and
opponents Nos.1 to 3. Apart from this, affidavit of opponents Nos.1 to 3
are also filed, who have extended no objection in favour of applicant.
Heard learned counsel for applicant and perused the
material available on record.
The applicant has prayed for succession certificate in
favour of applicant and opponent No.1 to 3 to receive pension amount
lying in the account of deceased and so also shown in the schedule
annexed with the instant application. The notice was published in daily
newspaper “Express” dated 07.02.2019, however, nobody has come
forward to object to the prayer made by the applicant. In addition to
this, report was called from Mukhtiarkar concerned who vide his letter
dated 07.02.2019 reported that deceased died leaving behind the
applicant and opponent No.1 to 3 as his legal heirs. This is what which
is reported by SHO Police Station Cantonment, Hyderabad vide letter
dated 07.03.2019. The
-2-

Deputy Director NADRA Hyderabad Zone in his report dated

14.02.2019 has also shown family details of deceased as applicant and
opponents Nos.2 & 3, however, opponent No.1 is not shown as legal
heir of deceased but her name was reported by concerned SHO and
Mukhtiarkar in their respective reports to be one of the legal heirs of
deceased. So far, pension amount lying in the account of deceased and
so also shown in the schedule annexed with the instant application,
Branch Manager UBL Station Road Hyderabad reported that deceased
was maintaining account No.018910146702 and left Rs.81,809.40/-
therein. He further in his subsequent letter dated 09.05.2019 reported
that deceased joined the bank in December, 1966, his services were
separated from the bank under a retrenchment scheme introduced in
1997 and at the time of separation, the entire dues of Golden
Handshake were paid to him as full and final.
Record shows that there is no impediment nor any will has
been found. Therefore, for the aforesaid reasons, the application is
allowed appointing Accountant District and Sessions Court, Hyderabad
as Commissioner with directions to withdraw amount of Rs.81,809.40/-
from Account No.018910146702 lying in UBL Bank Limited Station
Road Branch, Hyderabad and disburse the same to the heirs of
deceased i.e. applicant and opponents Nos.1 to 3 as per their
respective shares according to Muhammadan Law subject to furnishing
P.R. Bond of the applicant in equivalent amount shown in the balance
of the deceased and such report be submitted before this Court within
30 days. The Succession Application stands disposed of accordingly.
Pronounced in open Court.
Given under my hand and the seal of this Court on this 20 th day
of May, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE, HYDERABAD
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
Civil Appeal No.127 of 2017
1- Fida Hussian
2- Nabi Bukhsh
3- Riaz Ali
4- Mst. Fiza
All sons and daughter of Muhammad Mureed
Adults, Muslims, R/o Hussain Khan Hoat,
Deh Sanwar, Tapa Husri,
Taluka & District Hyderabad……………………..……….
……………………Appellants
Versus
1- Ameer Bukhsh S/o Misri
2- Ali Muhammad S/o Ghazi
3- Hyder S/o Piyaro (struck vide order dated 25-08-2010)
Both adult, Muslims, R/o Village Misri Khan
Deh Sanwar, Tapa Husri, Taluka & District Hyderabad
4- Mukhtiarkar Revenue Hyderabad
5- Executive District Officer Revenue Hyderabad
6- Province of Sindh to be served
through D.C.O. Hyderabad………………………………………..
…... Respondents.

Mr. Abdullah Laghari, Advocate for appellants.

Syed Inayat Hussain Shah, Advocate for respondents Nos.1 & 2.
Mr. Nadeem Soomro, DDA for official respondents.

J U D G M E N T.
28-05-2019.

This Civil Appeal is directed against the judgment and

decree dated 11.04.2017, passed by learned IVth Senior Civil Judge,
Hyderabad, in F.C.Suit No.109 of 2010, whereby the learned trial Court
dismissed the suit.
2. The appellants/plaintiffs filed above suit for Declaration,
Mesne Profits, Possession and Permanent Injunction against
respondents/defendants with following prayers;-
(a) That this Honourable Court may be pleased to declare that
plaintiffs are only surviving legal heirs of deceased Dittal
s/o Khamiso, Muhammad s/o Nabi Bukhsh and Khabbar s/o
Nabi Bukhsh. The plaintiffs are entitled to get the mutation
in the record of rights under Foti Khata Badal and the
defendant No.4 may be directed to mutate the Foti Khata
in the name of plaintiffs;
(b) This Honourable Court may be pleased to declare that
survey No.268, 26 & 270 admeasuring 7-20 acres are the
property of plaintiffs by virtue of inheritance. It is further
declared that survey No.99 Tapa Husri, Deh Vidh Taluka &
District Hyderabad are inherited by the plaintiffs to the
extent of 33 paisa share;
 -2-

(c) This Honourable Court may be pleased to appoint

Commissioner to take the accounts of the produce of the
above mentioned survey numbers for the last three years
and future till the suit is finally decreed;

(d) To direct the defendants No.1 to 3 to give due share

mesne profit of Rs.40,000/- for two years for the suit land.
Further be pleased to direct the defendants No.1 o 3 to
handover the peaceful vacate possession of the suit land to
the plaintiffs;

(e) Permanent injunction may be issued against the

defendants No.1 to 3 for alienating, transferring or creating
the third party interest through themselves, their agents,
servants, subordinate, lackeys and legatees;

(f) Costs of the suit be saddled;

(g) Any other relief, which this Honourable Court deem fit and
proper may be awarded in favour of plaintiffs;

3. It is inter alia stated in the plaint that agricultural land

bearing Survey No.268, 269, 270 admeasuring 7-20 acres situated at
Deh Sanwar Tapa Husri, Taluka & District Hyderabad and agricultural
land bearing Survey No.99 measuring 1-28 acres situated at Deh Vidh,
Tapa Husri, Taluka & District Hyderabad, is hereinafter referred as suit
property. In Survey No.268, 269, 270 admeasuring 7-20 acres the
plaintiffs are shareholders of 33 paisa while one Punhoon S/o Mahi got
67 paisa share. In Survey No.99 the plaintiffs are share holders of 33
paisa whereas remaining 67 paisa were sold by their grandfather Dital
S/o Khamiso Khan. The Survey No.268, 269, 270 admeasuring 7-20
acres situated at Deh Sanwar Tapa Husri, Taluka & District Hyderabad
was entered in the name of great grandfather of plaintiffs namely Nabi
Bukhsh, who obtained the suit land from government and his name
entered in concerned revenue record and after his death the Foti Khata
was made in the name of grandfathers of plaintiffs namely Muhammad
Khan s/o Nabi Bukhsh, Khabbar S/o Nabi Bukhsh and Dittal S/o Khamiso
S/o Nabi Bukhsh. The plaintiffs are only surviving legal heirs of Dittal
S/o Khamiso, Muhammad s/o Nabi Bukhsh and Khabbar S/o Nabi
Bukhsh and except plaintiffs there is no other legal heir of the
deceased named above. The plaintiffs and defendants No.1 to 3 are in
joint possession of suit land while defendants No.1 to 3 were giving the
produce of the suit land to the plaintiffs at Rs.10,000/- per six months
but they stopped to give produce from last two years. The defendants
No.1 to 3 were also giving commodities and necessities of life such as
clothes etc which also stopped since last two years, hence, plaintiffs
being aggrieved made complaint to defendant No.4/Mukhtiarkar
(Revenue), Hyderabad, on which, the defendants Nos.1 to 3 issued
threats of dire consequences, hence plaintiffs after getting orders from
the Court of law lodged FIR against accused Hussain Bux and others.
The defendant No.4/Mukhtiarkar (Revenue), Hyderabad
-3-

disposed of the complaint of plaintiff No.1 with observation that

defendants are cultivating the land, giving due share, now the plaintiffs
intend to cultivate the land and to enjoy the produce etc, therefore,
exclusive peaceful possession may be given enabling them for
cultivating the land through their own mean. The plaintiff No.1 also
prayed to defendant No.4/Mukhtiarkar (Revenue), Hyderabad that
mutation in the record of rights may be made upto date in the names
of plaintiffs which is still stood in the name of grandfather of plaintiffs
but defendant No.4/Mukhtiarkar (Revenue), Hyderabad opined that
matter of the parties is one of civil nature, hence he advised the
plaintiffs to approach the competent Civil Court for redresses of
grievances. It is further stated that plaintiffs belong to sect of Asna-e-
Ashri (Shiya) and obtained Fatwa from their Alim that only the plaintiffs
are entitled for the property mentioned in Survey No.268, 269, 270 and
Survey No.99 situated in Deh Sanwar & Vidh Tapa Husri, Taluka &
District Hyderabad.
4. After service of notice, respondents/defendants Nos.1 & 2
filed written statement at Ex-21, stating therein that the plaintiffs have
no concern with the suit land. On 27-01-1925 the R.S.No.267 and 270,
Deh Senhwar, Tapo Husri Taluka and District Hyderabad were
purchased by Saleh S/o Jurio from Muhammad and Khabbar, both sons
of Nabi Bukhsh through a registered sale deed and Saleh s/o Jurio left
behind Mst Soni W/o Misri (daughter) and Mst Bhagan (wife) as legal
heirs, who got share of 88 paisas and 12 paisas respectively. Mst Soni
D/o Saleh gifted her share to her son (1) Ameer Bux, the defendant
No.1, Ganhwar and Jurio, while 12 paisas share is also inherited by the
defendant No.1 and his other brothers form her maternal grandmother
Mst Bhagan, who left behind one daughter Mst Soni, the mother of the
defendant No.1. The R.S.No.99 area 1-28 acres Deh Vidh, Tapa Husri,
Taluka & District Hyderabad was purchased from the both sons of Nabi
Bukhsh through registered sale deed on dated 16-02-1938 by one
Pnhoon. Punhoon s/o Mahi Khan died issueless and left behind (1)
Muhammad Ali (brother, expired) grandfather of the defendant No.2,
(2) Bago (brother) who died issueless, (3) Ali Khan (brother) since dead
has legal heirs. It is stated that the defendants are legal owners of
R.S.No.267 and 270, Deh Senhwar and R.S.No.99 DehVidh by way of
inheritance and they are in cultivating possession of the same since
their forefathers as such there is no question to give any share from its
product to the plaintiffs. The FIR No.12/2010 was lodged at PS Husri
malafidely to harass and blackmail the defendants which was disposed
of in C-Class by the learned JM-VIII Hyderabad. The plaintiff has no
concern with the suit land, hence no cause of action has accrued to the
plaintiffs for filing the above suit, which may be dismissed with costs.
 -4-

5. The learned DDA appearing on behalf of defendants No.4

to 6 filed statement at Ex-25 of no interest of defendants No.4 to 6,
whereas defendant No.3 has been struck off vide order dated 25-8-
2010.

6. Out of the pleadings of the parties, learned trial Court

settled the following issues:-
I SSUES
1. Whether the suit maintainable under the law?
2. Whether the plaintiffs are only legal heirs of deceased
Dittal s/o Khamiso, Muhammad S/o Nabi Bux and Khabbar
S/o Nabi Bux and they are entitled to get the mutation in
the record of rights?

3. What should the decree be?

7. On the above issues, both the parties adduced their

evidence and closed the side of evidence.
8. Learned trial Court after hearing the counsel for the
parties, passed the impugned judgment whereby dismissed the suit of
appellants/ plaintiffs.
9. Learned counsel for appellants filed written arguments
wherein mainly stated that the suit land was allotted by the
Government to one Nabi Bux who died leaving behind Khamiso,
Muhammad Khan and Khabbar as his legal heirs who inherited the suit
land as per their respective shares. He further stated that aforesaid
legal heirs of decease Nabi Bux also expired then land was devolved in
their legal heirs and that all the persons have been expired including
the father and mother of appellants and except them there is no any
surviving legal heir. He further stated that the appellants also obtained
Fatwa in respect of disbursement of the suit land according to which
the appellants were considered as sole and absolute owner of the
entire land and that appellants are only surviving legal heirs of Dittal
S/o Khamiso, Muhammad Khan and Khabbar. He further stated that the
suit land was given to respondents Nos.1 to 3 on Maqada by father of
appellants through verbal agreement during his lifetime and they were
paying the rent meanwhile father of appellants expired on 29.04.2006
but respondents Nos.1 to 3 were paying the rent and that in the year
2008 appellants approached to respondents Nos.1 to 3 for
enhancement of rent amount but they stopped the payment of rent
and issued threats, therefore, appellants in the year 2009 asked them
to vacate the suit land and deliver its possession but to no avail. He
further stated that appellants also moved application to Mukhtiarkar
concerned with request to get restored the possession of suit land from
respondents whereby appellants were asked to avail civil remedy vide
order dated 23.01.2010. He further stated that respondents became
enraged, who maltreated the appellant, hence, such FIR was lodged by
appellant No.1 bearing No.12/2010 at Police
-5-

Station Husri, Hyderabad on 19.01.2010. He further stated that sale

deed produced by respondents Nos.1 to 3 is false, managed and bogus
document as respondents have played further which is apparent from
the face of stamp paper according to which sale agreement was
purchased on 05.05.1956 whereas sale deed was executed on
27.01.1935 even stamp paper purchased by another person
Muhammad Hassan was purchased in the year 1983 and agreement
was executed in the year 1974. He further stated that learned trial
Court has wrongly dismissed the suit by declaring the same to be hit
by Section 11 CPC. He further stated that the appeal is liable to be
allowed and matter be remanded to learned trial Court for disposal in
accordance with law. He in support of his argument relied upon 1996
CLC 1212, 2007 CLC 165, 2007 CLC 441, 2010 CLC 1646, 2002 CLC
942 and 2011 YLR 404.
10. Learned counsel for respondent No.1 & 2 mainly argued
that the father of plaintiff filed Suit bearing No.118 of 1994 for
Declaration, Cancellation of Revenue Record and Permanent Injunction
against the respondents in respect of same property in which written
statement was filed by the respondents in which they claimed that
they are holding the title on the basis of sale deed and this suit
however, after framing of issues came up for recording evidence and
ultimately it was dismissed on 11.12.1997. He further argued that the
appellants/plaintiffs were in the knowledge regarding revenue entries
created on the basis of sale deed in favour of respondent but inspite of
that they did not got that suit restored and sought amendments nor
thereafter challenged the same within the time of limitation, therefore,
the very suit filed by the plaintiffs was hit by law of Limitation also. He
argued that the title of the respondent is created on the basis of sale
deed one executed on 27.01.1925 and the other on 21.02.1932 and
these documents are 85 years and 78 years old respectively and the
same are still intact and have got the sanctity of law. He further
argued that Article 100 of Qanun-e-Shahdat Order 1984 provides that
30 years old document has sanctity in law whereas the document
produced by the respondents are more than 78 and 85 years old
documents. He further argued that the suits for permanent injunction
and possession alone is not maintainable without cancellation,
therefore, on this score again the suit of the plaintiff is not
maintainable. He further argued that the pendency of above suit was
very much within the notice and knowledge of the plaintiff which fact
he admitted in his cross. He also argued that plaintiff further admitted
that on the basis of such sale deed the suit land is mutated in the
names of plaintiffs in the revenue record and such is not challenged in
the present suit, therefore, suit is also hit by Section 11 C.P.C.
 -6-

11. I have heard learned counsel for the parties and gone
through the material available on record including the case laws relied
upon by learned counsel for appellants.
Now points for determination of the lis, are as under:

POINTS

(i) Whether impugned judgment and decree dated

11.04.2017 require any interference by this Court?.

(ii) What should the judgment be?

My findings on points (I) and (II) are as under:-

FINDINGS
POINT NO.I
POINT NO.II

REASONS
POINT NO.I

12.
8. Per material available on record, the plaintiff in Para No.2
of the plaint has claimed himself as sole, absolute and legal owner of
shop Nos.3 & 4 constructed upon Plot No.210 Block-D, Unit No.7,
Rafique Square Latifabad Hyderabad having been purchased by him by
way of registered sale deed. This is what which is prayed for by him at
prayer clause-(a) of the plaint and this
 -4-

particular statement made in the plaint and so also relief sought at

prayer clause-(a) is denied by respondent/defendant in his written
statement. If it is so; it is an important issue which requires evidence.
No doubt, in most of the paras of the plaint, the appellant has narrated
the facts regarding the dispute arose in between the appellant and
respondent with regard to monthly rent in respect of suit property and
the rent application filed by appellant/ plaintiff was proceeded and
ultimately dismissed but this particular fact gives sufficient and fresh
cause to the appellant/plaintiff to file suit for Declaration regarding his
legal character and status in respect of the suit property based upon
the registered sale deed which is also questioned by the
respondent/defendant as benami transaction vide F.C.Suit No.46 of
2016 pending before the trial Court. The arguments of the learned
counsel for respondent/defendant that the rent application filed by the
appellant/plaintiff was proceeded and dismissed by trial Court and such
order attained its finality also as the same was not challenged by filing
rent appeal and that appellant cannot agitate such grounds in the suit,
the same arguments are devoid of substance because dismissal of rent
application filed by appellant/plaintiff would not mean that he is
precluded from seeking declaration regarding his status in respect of
suit property. Even otherwise, the Rent Controller while deciding the
rent application has limited scope only to decide the relationship in
between the parties as landlord and tenant and so also other issues
relating to the rent and he while deciding such dispute has no
authority to declare title of any party regarding the property in dispute
and for that purpose it is only the Civil Court to adjudicate upon such
rights of the parties and decide it in accordance with law. His next
argument that the appellant/plaintiff in prayer of the rent application
only sought eviction of the respondent/defendant of shop No.5 and no
prayer was made regarding shops Nos.3 & 4, his like argument is also
of no help to him as in Para No.2 of the rent application, the
appellant/plaintiff had shown himself as owner of shops Nos.3 & 4. Yet,
if the appellant/plaintiff did not make such prayer in the rent
application, again, I would say that this is no ground which may be put
in defence. His further argument that the suit is barred by law of
limitation, it transpires that order in question was passed on
21.07.2018 while the appeal is preferred on 20.08.2018 and thus it is
filed within the time. The case law relied upon by learned counsel for
respondent/defendant reported as 2010 YLR 2759 (Province of Punjab
and others Vs. Muhammad Iqbal & others) is on the point that suit
without seeking declaration would not be maintainable whereas
present is the suit in which not only declaration is sought by the
appellant regarding his ownership in respect of the suit shops but
consequential reliefs are also sought for. The other
 -5-

plasitum viz. (c) of this authority is in respect of delay of 117 days in

filing of revision application while the present appeal is filed within the
time and thus the same is quite different to that of the facts of case in
hand. The other authority (supra) reported as 2007 YLR 2134 (Karachi)
(Dhani Bux Vs. Ali Sher and others) is one which goes in favour of the
appellant in which it has been held that;-
Plasitum-(b)
“Article 120---Suit for declaration of title of disputed land---
Limitation---Such suit cannot be barred by limitation so
long as plaintiff ‘s right is a subsisting right and has not
been extinguished as this gives a right to a continuing
cause of action since every invasion thereof is a fresh
cause”.

It has further been held in the said authority at plasitum-(c)

that;-
“Right to sue accrues when the right in respect of which
the declaration is sought is denied or challenged by the
defendants and time would only start running when such
rights are actually interfered with---In such cases any fresh
cause of action would arise from the date of last attack of
the plaintiff’s right or denial thereof”.

Same is the position in the case in hand as firstly the

appellant/plaintiff filed rent application in which he could not succeed
and since he was claiming his ownership of suit property on the basis
of registered sale deed and the fact that respondent/defendant’s suit
bearing No.46/2016 for declaration of said registered sale deed of
appellant/plaintiff in respect of suit property as benami transaction, is
pending before the trial Court and this is the last attack as to his right
and character to the suit property, thus, he accrued fresh and
continuing cause to sue.
10. In view of above discussion, I am of the humble opinion
that the order passed by learned trial Court requires interference by
this Court. I therefore, answer point No.1 in affirmative.

POINT NO.II
11. In the light of the discussion aforesaid, the impugned order
passed by learned trial Court calls for interference by this Court.
Accordingly, the instant appeal is allowed and impugned order dated
21.07.2018 is set-aside and the matter is remanded back with
directions to learned trial Court to decide the same on merits after
framing issues and recording evidence of both the parties. The parties
to bear their own costs. Let the office to prepare such decree.
Announced in open court,
Given under my hand & seal of this Court, this the 26th day of March, 2019
 (MUHAMMAD FAZIL BOHIO)
VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
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IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE,

HYDERABAD.
Succession Application No.182 of 2019
Saeed Ahmed Khan S/o Late Muhammad Idris Khan
Adult, Muslim, R/o House No.D-39, Block-D,
Unit No.07, Latifabad Hyderabad………..……………...………………….Applicant.
Versus
1. Mst. Rasheeda Wd/o Late Muhammad Idris Khan
Adult, Muslim R/o House No.A/113-240/3
Muhalla Hirabad, Hyderabad
2. Mst. Saeeda Qaimkhani D/o Late Muhammad Idris Khan
W/o Saeed Ahmed Khan, Adult, Muslim
R/o Bungalow 237/C, Block B, Unit No.9
Latifabad, District Hyderabad
3. Anees Ahmed Khan S/o Late Muhammad Idris Khan
Adult, Muslim R/o Plot No.C-21, Flat No.4
Muhalla Sun Set Lane 1, Phase-II, DHA Extension
Karachi South
4. Mst. Nuzhat Fatima D/o Late Muhammad Idris Khan
W/o Muhammad Saleem, Adult, Muslim
R/o Ganga Mai Mandir House No.2903
Muhalla Qaim Nagar Phuleli Par, P.O. Phuleli
Hyderabad
5. The General Public at Large
to be served through publication……………………………………
Opponents.
Mr. Muhammad Khalid, advocate for the applicant
ORDER
24.05.2019
This order shall dispose of present succession application
filed U/s 372 of Succession Act, 1925 by the applicant in which it is
stated that deceased Muhammad Idris Khan S/o Mehboob Ali Khan,
died on 26.02.2018 leaving behind him applicant and opponents Nos.1
to 4 as his surviving legal heirs. The deceased during his lifetime was
maintaining Account No.0145575221003525 with amount of
Rs.810,079.40 in MCB Bank Limited Latifabad No.7 Branch whereas
prayer clause-b regarding letter of administration for mutation of land
left by deceased has not been pressed by learned counsel for applicant
through statement dated 24.05.2019. The applicant approached the
concerned bank for providing bank statement and issuance of
certificate of shown account but to no avail.

In support of the case, the affidavits of two independent

witnesses namely Muhammad Tarique Khan S/o Abdul Wahid Khan and
Gul Zaman Khan S/o Momin Shah are filed, who have stated that there
is no other legal heir of deceased except the applicant and opponent
Nos.1 to 4. Apart from this, affidavits of opponent Nos.1 to 4 are also
filed extending no objection in favour of applicant.
 -2-

Heard learned counsel and perused the material available

on record.

The applicant has prayed for succession certificate in

favour of applicant and opponents Nos.1 to 4 to receive the amount
from the above bank as shown in the schedule annexed with
application. The notice was published in daily newspaper “UMMAT”,
however, nobody has come forward to object to the prayer made by
the applicant. In addition to this, report was called from Mukhtiarkar
concerned who vide his letter dated 14.05.2019 reported that
deceased died leaving behind the applicant and opponent No.1 to 4 as
his legal heirs. This is what which is reported by SHO Police Station A-
Section Latifabad, Hyderabad vide letter dated 24.05.2019 and Deputy
Director NADRA Hyderabad Zone in his report dated 14.05.2019
reported that applicant and opponents Nos.1 to 4 are legal heirs of
deceased. In addition to this, the Manager MCB Bank Latifabad No.7
Branch, in his report dated 24.05.2019 reported that deceased was
maintaining account No.0145575221003525 with balance amount of
Rs.810,079.40 as on 23.05.2019

Record shows that there is no impediment nor any will has

been found. Prayer clause “B” of application regarding letter of
administration for mutation of land left by deceased has not been
pressed by learned counsel for applicant through statement dated
24.05.2019 and the same has been allowed by passing order on it.
Therefore, for the aforesaid reasons, the application is allowed. The
Accountant District and Sessions Court, Hyderabad is appointed as
Commissioner with directions to withdraw amount of Rs. 810,079.40
from Account No. 0145575221003525 lying in MCB Bank Latifabad
No.7 Branch and disburse the same to the heirs of deceased
Muhammad Idris Khan i.e. applicant and opponents Nos.1 to 4 as per
their respective shares according to Muhammadan Law subject to
furnishing P.R. Bond of the applicant in equivalent amount shown in
the balance of the deceased and such report be submitted before this
court within 30 days. The Succession Application stands disposed of
accordingly.

Pronounced in open Court.

Given under my hand and the seal of this Court on this 24 th day
of May, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE, HYDERABAD
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IN THE COURT OF VITH ADDITIONAL DISTRICT

JUDGE, HYDERABAD.
First Rent Appeal No.36 of 2016

Muhammad Usman S/o Muhammad Ameer Khan

Muslim, adult, R/o B-20/303, Muhallah Masokhani Lane
Tolak Chari, Hyderabad Proprietor Shaheen Autos
House No.F/1130, Opposite Al-Zeeb Market
Gari Khata, Hyderabad through his attorney
Abdul Rasheed Khan S/o Muhammad Ameer Khan
Muslim, adult, R/o B-20/303, Muhallah Masokhani Lane
Tilak Chari, Hyderabad………………………….………………………...

………………...Appellant.

VERSUS

Mst. Zohra Khan W/o Masood Ahmed Khan

Muslim, adult, R/o House Chak No.18
Sadrath,

Sanghar…………………………………………………………………………………

Respondent.

Mr. Muhammad Saleem Pathan, learned counsel for appellant.

Mr. Rafique Ahmed, learned counsel for respondent.

J U D G M E N T.
25-05-2019.
This First Rent Appeal is directed against the order dated
23.04.2016, passed by learned IInd Senior Civil Judge/Rent Controller
Hyderabad in Rent Application No.207 of 2014 (re-Mst. Zohra Khan Vs.
Muhammad Usman) whereby the learned Rent Controller allowed the
rent application and directed the opponent to vacate the rented
premises within 60 days and handover its peaceful possession to the
applicant.
2. Succinctly facts of Rent Application No.207 of 2014 filed
U/s 15 of Sindh Rented Premises Ordinance, 1979, are that one
Muhammad Khan, the father of applicant was owner of C.S. No.F/1130
measuring 73 Sq yards and after his death said property was inherited
by his five sons and three daughters, out of them, one of the legal
heirs namely Mst. Sabra expired then her share was inherited by her
son namely Jehangir. It is further stated that out of said eight legal
heirs, namely Musthaque Ahmed Khan, Muhammad Bilal, Mst. Asma
and Jehangir relinquished their share in favour of applicant by virtue of
Relinquishment Deed registered under registration No.1759 Book-I
dated 18.04.2014 M.F. Roll No.1228/29143 dated 28.05.2014. It is
further pleaded that opponent is tenant of one shop and upper storey
of residential house against the rent of Rs.19,000/- per month which
was being paid to one co-sharer namely Musthaque Ahmed Khan and
after execution of relinquishment
 -2-

deed by said Mushtaque Ahmed Khan, from 21.02.2014 applicant is

owner and landlord of major share of said premises. It is further
submitted that applicant sent the notice to opponent for payment of
monthly rent to applicant from March, 2014 up to date but to no avail,
hence, applicants filed instant rent application with the following
prayers ;-
It is therefore, requested that this Honourable Court may
be pleased to direct the opponent to deposit the
outstanding rental dues from the month of March, 2014
upto date and also direct the opponent to deposit the
future rent I the Court till the decision of the above case
and also award the costs of this case.

3. After institution of the rent application, notices were issued

to the opponent and in response thereto, opponent filed written
objections wherein he denied the allegations of applicant stating that
applicant is not owner of the rented premises and relinquishment deed
claimed by the applicant is forged document as same was obtained
through fraud and such case for its cancellation is pending before the
concerned Court. It is further stated that property in question belongs
to Muhammad Iqbal and wife of Habib Khan being legal heirs of
deceased Muhammad Khan and Muhammad Usman is the tenant of
those owners, therefore, applicant is not landlord of the rented
premises, hence, applicant has no cause of action to file the present
rent application, which is not maintainable and the same is liable to be
dismissed.
4. After that both the parties filed their respective affidavits-
in-evidence then learned trial Court hearing the parties counsel
allowed the application U/S. 16(1) of Sindh Rented Premises Ordinance,
1979 and directed the appellant to deposit the arrears of rent at the
rate of Rs.19,000/- but appellant despite availing sufficient time failed
to do, hence, learned trial passed the impugned order whereby
allowed the rent application and directed the appellant to vacate the
rented premises within 60 days.
5. Learned counsel for appellant while reiterating the
grounds of his appeal further contended that the appellant never
remained as tenant of respondent Mst. Zohra in respect of the rent
premises, therefore, no question of payment of rent arose to be
deposited in Court. He further argued that respondent, in fact, was
tenant of Muhammad Iqbal and Mst. Ameena wife of Habib Khan in
respect of rented premises and the appellant used to pay monthly
rent regularly to those landlords. He further argued that at Para No.2
of the rent application, Muhammad Khan the landlord expired and
then as many as 08 persons including that of applicant were shown
as his legal heirs then dispute arose in between legal heirs regarding
the shares. He further argued that the opponent is tenant of one shop
and one residential house on the upper story and he used to pay the
rent of the said premises to one co-sharer Mushtaque Ahmed. He
further argued that the order passed by the
-3-

learned Rent Controller was illegal, void having been obtained by the
respondent by playing fraud and misrepresentation, therefore, the
same be set-aside and matter may be remanded back to trial Court
providing chance to appellant to get his evidence recorded and it be
decided finally. In support of his arguments, he relied upon the case
laws reported as 1992 SCMR 1149 (a) & (b) (Supreme Court of
Pakistan) (Mst. Miskeena Jan Vs. Rehmat Deen), 1985 CLC 1606
(Karachi) (Hassan Mohiuddin Vs. Muhammad Hanif), 1986 CLC 1733
(Karachi) (Syed Ali Imam Ali Rizvi Vs. Fakhruddin & 02 others) and
1997 MLD 3265 (Karachi) (Shafique Ahmed Vs. Abdul Rehman).
6. Learned counsel for respondents argued that appeal as
framed and filed is not maintainable because same is filed by Abdul
Rasheed Khan stating himself to be attorney of appellant but such
power annexed with the memo of appeal as annexure-B nowhere
empowers the appellant to file the above appeal because it was
specifically given to him by the appellant for depositing rent and filing
power in rent application No.207/2014. He further argued that
sufficient opportunities were allowed to appellant to adduce evidence
but he failed to adduce the same as he only kept on changing a
number of advocates one after the other. The learned trial Court
during trial passed an order U/S. 16(1) SRPO directing the opponent
to deposit rent in Court but he did not do, therefore, on 23.04.2016
the defence of the opponent was struck off and the order impugned
through present appeal was passed which is very much legal and
lawful and the same does not call for interference by this Court. He
further argued that appellant has no right to challenge the title of
opponent in the capacity of his being tenant. In this regard he relied
upon the case law reported as 2003 Karachi 134, 2001 YLR 2792
Karachi and PLD 1987 Karachi 526.
7. Learned counsel for appellant in rebuttal argued that the
opponent was tenant in respect of rent premises given to him by
deceased Muhammad Khan in his lifetime and after his death
according to family settlement of legal heirs of deceased appellant
used to pay rent to his one of the sons namely Mushtaque Khan,
thereafter property of deceased was distributed and the portion which
was on rent to appellant was given to Muhammad Iqbal and Mst.
Ameena Wd/o Habib to whom the opponent used to pay the rent
regularly and that at the time when application was filed, applicant
was not authorized by the landlord to file such application because
application was filed in the year 2014 while the power was given to her
on 04.03.2015.
8. I have heard learned counsel for the parties at length and
gone through the relevant record carefully.
 -4-
Now point for determination of the lis, are as under:

POINTS
(i) Whether First Rent Appeal is maintainable?

(ii) Whether impugned order dated 23.04.2016 requires

any interference of this Court.?.

(ii) What should the judgment be?

My findings on points (I) and (II) are as under:-

FINDINGS
POINT NO.I In negative.
POINT NO.II In negative.
POINT NO.III Appeal dismissed.

REASONS
POINT NO.I
9. So far maintainability of the above rent appeal is
concerned, it appears that above appeal has been filed by Muhammad
Usman through his attorney Abdul Rasheed and such power of Abdul
Rasheed is also annexed with the memo of appeal as annexure-B. A
look at this document shows that it was executed by Muhammad
Usman on 06.12.2014 specifically empowering Abdul Rasheed Khan to
deposit rent in Court and to attend Court in Rent Application No.207 of
2014 for giving evidence, engaging advocate on his behalf in all
respect. The learned counsel for appellant argued that the words
mentioned in the said power viz. “in all respect” are meant to file
appeal also. Astonishing to be noted that in the year 2014 the
appellant knew that order in the rent application would be passed
against him, therefore, he much in advance authorize his above
attorney to file rent appeal. Even otherwise, this document nowhere
mentions that the attorney was authorized to file rent appeal also,
therefore, the like arguments of learned counsel is devoid of
substance. The present appeal has been filed by an incompetent
person who was not authorized/empowered to file the same and thus it
is not maintainable in its present form. I therefore, answer point No.1
in the negative.

POINT NO.II
10. Admittedly present appeal is directed against the order
dated 23.04.2016 passed by learned Rent Controller whereby he
struck of the defence of appellant and ordered for vacation of the
premises within two months as he failed to deposit the rent in Court.
Record shows that an application U/S. 16(1) of Sindh Rented Premises
Ordinance, 1979 filed by respondent which was allowed vide order
dated 21.10.2015 directing appellant to deposit the rent in Court from
October, 2014 and since he did not comply with such order, his
defence was struck of vide order dated 23.04.2016 as
-5-

provided under ordinance directing him to vacate the premises within

two months and handed over its possession to landlord. This order was
passed by learned Rent Controller after calling report from Nazir who
confirmed the fact that appellant failed to deposit the rent. Record
transpires that the appellant even did not adduce his evidence and
kept on changing his advocates till passing of such order. Admittedly
the appellant did not deny the fact that he was not tenant in respect of
the rent premises. Whatever plea taken by him in his written
statement cannot given weight because he failed to adduce evidence.
The learned counsel for appellant in his arguments argued that no
question of payment of rent arose to be deposited in the Court. If it is
so, he himself decided the fate of the case and thereby challenged the
authority of the Court. One and alone ground taken by the opponent
that he used to pay rent to late Muhammad Iqbal and wife of Habib
Khan namely Mst. Ameena, however, he has not produced any proof in
this regard. It is matter of record that extract from property register
card is annexed with rent application which shows that rent premises
survey No.F/1130 measuring 73 Sq yards consisting of two shops on
ground floor and residential house on first floor to be existing in the
name of applicant Mst. Zohra W/o Masood Ahmed since 26.01.2014.
Thus this document alone is sufficient to go against the plea taken by
the appellant and so also his learned counsel in his arguments because
nowhere it is pleaded that this document is false or otherwise. The
arguments of the learned counsel that the rent application was filed on
14.11.2014 while respondent was authorized in the year 2015 to file
application is also of no avail because extract from property register
card shows that rent premises was transferred in the name of
respondent on 26.01.2014 and further a legal notice is also annexed
with the application whereby appellant was told that in future
Mushtaque Ahmed is no more owner and from 21.02.2014 his new
landlord is Mst Zohra, therefore, he should deposit the rent in future
with her. This notice was sent through OCS Courier Service and such
receipt is also annexed with the legal notice showing name of
appellant. Therefore no illegality is shown in the order passed by the
learned Rent Controller and he rightly struck of his defence because
sufficient opportunities were allowed to him to deposit the rent in
Court. Strange to be noted that power of attorney annexed with rent
appeal is in respect of the rent to be deposited by the attorney in Court
in R.A. No.208 of 2014 but inspite of that the said attorney and so also
the appellant failed to deposit the same in Court. To my humble
opinion the order passed by learned Rent Controller does not call for
interference. I therefore, answer point in hand as negative.
 -6-

POINT NO.III
11. In the light of the discussion aforesaid, instant First Rent
Appeal appeal stands dismissed, therefore, order passed by learned
trial Court/Rent Controller shall hold the field. The parties to bear their
own costs. Let certified true copy of order be transmitted to learned
Rent Controller alongwith R&Ps.
Announced in open court,
Given under my hand & seal of this Court, this the 25thday of May, 2019

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE,
HYDERABAD.
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IN THE COURT OF VI-ADDITIONAL DISTRICT JUDGE,

HYDERABAD
Civil Revision Appln. No.12 of 2019

Mst. Samreen Tahir W/o Syed Tahir Ali

D/o Syed Kamal Ahmed, Muslim, adult
R/o at present 6205, Obsidian Creek
Dr. Fort Worth Texas, United States of America
through her duly nominated and constituted
attorney Mr. Syed Asim Husain S/o Syed Abdul Hassan Zaidi
Adult, Muslim, R/o H.No.560 Amani Shah Colony
Unit No.11 Latifabad Hyderabad……………………………………………..

……………………..Applicant.

VERSUS

1. Obaid ur Rehman
deceased through legal heir
Mr. Farhat Parveen Wd/o Late Obaid ur Rehman
R/o H.No.C/10-2457 Jhurmal Lane Hyderabad Sindh

2. Mst. Shamim Begum

deceased through legal heirs

(a) Mr. Fuzail Ahmed S/o Syed Kamal Ahmed

(b) Mst Ambreen D/o Syed Kamal Ahmed
(c) Mst. Qasreen Masood D/o Syed Kamal Ahmed
All R/o House No.64-A, Block-A
Unit No.6 Latifabad Hyderabad Sindh

3. P.O Sindh
through Secretary Local Government
Sindh Secretariat Karachi

4. Administrator
Taluka Municipal Administration
Office at Unit No.6 Latifabad

5. Taluka Officer (Former) D.H.O

Latifabad Office at Fire Brigade
Unit No.8 Latifabad Hyderabad……………………………………………….

……..Respondents.

Mr. Amir Ali Memon, Advocate for applicant.

Mr. Imdad Ali Unar Advocate for respondent No.1
Mr. Mumtaz Ali Jokhio, DDA for respondent No.3
None appeared for remaining respondents.

ORDER
29.05.2019
This order shall dispose of above Civil Revision Application
filed by the applicant against order dated 25.01.2019 passed by
learned VIIIth Senior Civil Judge, Hyderabad in F.C.Suit No.741 of 2012
on application filed by the applicant U/S. 12(2) C.P.C. whereby the said
application was dismissed.
2. The facts, in brief, leading to this revision are that
respondent No.1 filed above Suit for Possession, Mesne Profits,
Permanent and Mandatory Injunction in respect of suit property viz.
back portion of plot No.64/B, Block-A, Unit No.6, Latifabad, Hyderabad
measuring 300 Sq yards against mother of applicant and another later
on it was amended in which applicant was shown as
-2-

defendant No.1(d), which was proceeded and decreed vide judgment

dated 27.04.2016 followed by decree dated 05.04.2016. The applicant
feeling aggrieved, filed application U/S. 12(2) CPC against such
judgment and decree which was dismissed vide order dated
25.01.2019. The applicant in her above application mainly stated that
she had moved to Canada even prior to the death of defendant No.1,
her mother and subsequently shifted to United States of America and
is residing at the address given in the memo of application and prior to
moving Canada, the applicant was residing at the house of her
husband namely Syed Tahir Ali at A-206, Block No.15 Gulistan-e-Johar
Karachi East. It is further stated that applicant left Pakistan in the year
2002 and since then she did not reside at the address mentioned in
the title of the plaint of F.C.Suit No.741 of 2012 and that she had no
knowledge that there was/is dispute prevailing with regard to the
property shown in the above suit left behind by her deceased mother
as she is residing abroad since long with her spouse and visited the
Pakistan only when her mother died in the year 2003 and except this
she never visited the house of her mother at Hyderabad as relations of
applicant with her brother Syed Fuzail, respondent No.2(a) remained
strained due to some domestic affairs. It is further stated that in the
month of November, 2017 the applicant contacted with her brother
Syed Fuzail on phone in order to inquire about the distribution of the
shares in the above suit property left behind by her deceased mother
pursuant to which it was disclosed that half of the portion of the said
property had been grabbed by some Obaid-ur-Rehman (D.H of instant
suit) pretending himself to be the owner of the same on the strength of
above judgment and decree. It is further stated that the judgment
dated 27.04.2016 and decree dated 05.05.2016 were obtained by
fraud and misrepresentation without effecting proper service of
summons upon the applicant/defendant No.1(d) and by this way she
was seriously condemned unheard, hence, the applicant filed above
civil revision application with prayer that order dated 25.01.2019 may
be set-aside including that of judgment and decree and application
filed U/S. 12(2) CPC may be allowed directing the trial Court to decide
the First Class Suit No.741/2012 on merits after recording evidence.
4. Learned counsel for applicant argued that respondent
No.1/ plaintiff is duty bound to file suit against defendants giving
proper addresses of the defendants so that they could be served as is
provided U/O 5 CPC because the wisdom behind service is to have the
knowledge to the defendants about the pendency of the suit filed
against them. He argued that the endorsement of bailiff dated
18.01.2013 shows that except respondent No.1(a), other legal heirs of
deceased including applicant were not residing at the given address
and inspite of that the learned trial Court by order dated 30.10.2013
declared
-3-

the matter against them as exparte. He argued that Para No.9 of

affidavit to application Ex.30 speaks about the fact that the applicant
was residing abroad, this application was allowed on 08.02.2016 which
was filed only by respondent No.1(a) to (c) to whom time was allowed
but they did not file their written statement and their side was again
closed and this respondent again filed application Ex.50 which was
dismissed vide order dated 27.04.2016. He further argued that by
order dated 08.02.2016, it was admitted by the trial Court that
applicant was not residing at the given address, therefore, it was duty
of the Court to have had effected the service of summons upon
applicant through Pakistan Embassy at United States of America and
so also by publication but that was not done. He further argued that
the attorney of plaintiff is of questionable character because he is
representing various persons in different cases as attorney. He argued
that the learned trial Court did not consider that the applicant was not
served with the notices and that appeal against judgment and decree
was not filed by the applicant nor she engaged any advocate and the
power of Mr. Hakim Ali Siddiqui, Advocate available on record does not
bear her signature nor appeal shows that she was being represented
by any of her attorney and that by showing her as appellant No.4 in
the said appeal her brother also committed fraud with her. He further
argued that since fraud is apparent on record, the most solemn of
proceedings and transactions is vitiated, therefore, he prayed for
allowing the above application, setting aside the order passed dated
25.01.2019 and so also exparte judgment and decree and further
prayed that directions may be issued to trial Court to lead evidence
and decide the matter on merits after recording evidence. In support of
his arguments, he relied upon the case laws reported as 2016 SCMR
430 (Zahid Iqbal Vs. Hafiz Muhammad Adnan and others, PLD 1980
227 Peshawar Aziz Khan Vs. Maiz Muhammad Khan and 6 others),
2011 YLR 615 Peshawar (Tahir Mehmood Afridi Vs. Muhammad Dayar,
2002 CLC 932 Peshawar (Zulfiqar Vs. Muhammad Jan), PLJ 2011 97
Peshawar (Tahir Mehmood Vs. Muhammad Dayar), 2015 CLC 1687
(Mst. Azra Parven and 3 others Vs Sheikh Ashfaque Hussain and 7
others), PLD 1990 225 (Karachi) and PLD 2013 SC 364 (Syed Mehmood
Ali Shah Vs. Zulfiqar Ali and 5 others).
5. Learned counsel for respondent No.1 argued that applicant
and respondents Nos.2(a) to (c) are real sisters and brother, the suit
property was owned by mother of the applicant, thus, applicant had no
independent right over it and that her mother sold out the same when
the applicant was suckling baby and since her mother did not perform
part of contract, F.C.Suit No.288/1980 filed by respondent No.1 was
decreed and appeal filed against such judgment and decree was also
dismissed and such judgment attained its finality and the moment this
judgment attained its finality, it closed every
-4-

right, title and character to the property of every person except the
decree holder of that judgment. He further argued that application U/O
09 Rule 7 CPC Ex.50 in its supporting affidavit having been filed by
brother of applicant falsifies the statement that she was not having
knowledge as per this application the service was made upon
respondent No.1(a) to (d) and because of that such application was
filed through a very senior lawyer Mr. Mansoor-ul-Haq Ansari, but it
was dismissed as earlier to that similar application moved, was allowed
but they did not file written statement and again their side was closed
and this aspect of the matter shows that the applicant was not only
residing at the given address but she was having every information in
respect of the suit property and proceedings. He argued that if
according to applicant fraud was committed with her by getting order
dated 08.02.2016 at her back and she was illegally shown as appellant
No.4 in appeal bearing No.121/2016 which was dismissed by judgment
dated 09.05.2017 but nowhere it has been pleaded by her in her
application U/S.12(2) CPC that this all was the fraud with her having
been committed by her brother. He argued that not only she filed
appeal which was dismissed but she also engaged advocate because
she has not denied anything as to this aspect of the matter in her
application. He argued that per application, she had no knowledge as
she was residing abroad and she had strained relations with her
brother then how she stated in the same application that she
contacted with her brother in November, 2017 who informed her
regarding proceedings of suit No.741/2012. He argued that applicant
was having knowledge from the very beginning, the present
application has been filed with fictitious grounds, the applicant and
other legal heirs are in league to each other sharing the views in
respect of the suit proceedings from very inception and since the
appeal filed was decided against them again a new ground has been
concocted. He argued that since mother of applicant sold out the suit
property in the year 1980 and a suit filed in that respect was decided
on 31.05.2014, it attained the principle of merger which is still existing,
therefore, she has no interest to retain possession. He further argued
that second appeal bearing No.30 of 2017 is pending before
Honourable High Court in respect of the same property in which
applicant is appellant No.4 mentioning her address of Hyderabad. He
lastly argued that the application apparently is not maintainable
according to law which may be dismissed with costs.
6. Learned counsel for applicant in rebuttal argued that if suit
filed previously was decided, it does not mean that in the subsequent
suit service is not to be made in accordance with law.
7. Learned D.D.A. for respondent No.3 in his arguments
supported the arguments advanced by learned counsel for respondent
No.3.
-5-

8. I have carefully considered submissions of learned counsel

for parties present and with their assistant perused the entire material
available on record and further have gone through the case laws relied
upon by learned counsel for applicant.
9. The grievance of the applicant as unfolded in the instant
application and so also in application filed U/s 12(2) before the learned
trial Court is that much prior to death of her mother Mst. Shamim
Begum, she left Pakistan 2002 for Canada with her spouse and
subsequently shifted to United States of America and since then is
residing there at the address given in the memo of application and that
whichever summons/notices/process issued by the trial Court in above
suit were not served upon her, hence the judgment dated 27.04.2016
and decree dated 05.05.2016 delivered in the above suit are obtained
by playing fraud, misrepresentation and concealment of facts,
therefore, the order dated 25.01.2019 passed on her application filed
U/S. 12(2) CPC and so also above judgment and decree are nullity in
the eyes of law, result of material irregularity, illegality having been
based on presumption, assumption, conjectures and surmises,
therefore, order passed on her application dated 25.01.2019 and so
also judgment and decree passed in above suit may be set-aside, her
application may be allowed and the trial Court be directed to decide
F.C.Suit No.741 of 2012 on merits.
9. Under Section 12(2) CPC a person is allowed to challenge
validity of a judgment, decree or order on the plea of fraud and
misrepresentation or for want of jurisdiction. Fraud means and
includes, inter-alia, the suggestion, as a fact of that, which is not true
by one who does not believe it to be true; and the active concealment
of a fact by one having knowledge or belief of that fact. The applicant
has taken sole plea in his application that summons issued by the
learned trial Court for service could not be served upon her as she left
Pakistan in the year 2002 for Canada with her spouse and then shifted
to United States of America and since then is residing there and that
the address which is given in the suit is false and further her brother
with whom she had strained relation, informed her in November, 2017
regarding proceedings of above suit. This is what which has been
argued by her learned counsel, contending further that her brother
Fuzail Ahmed also committed fraud with her. If it is so; it is matter of
record that above judgment and decree passed by learned trial Court
were challenged in Civil Appeal No.221 of 2016 in which the applicant
is shown as appellant No.4 and the appellants given their address of
residence in the said appeal as House No.64/B, Block-A, Unit No.6,
Latifabad, Hyderabad. The above appeal was decided on 09.05.2017
while application U/S. 12(2) CPC was filed on 06.02.2018 after about 09
months but the applicant did not care to urge a single word thereunder
that her brother Fuzail
-6-

Ahmed also committed fraud with her showing her falsely as appellant
No.4 and her residential address of Hyderabad. In addition to this, the
applicant also failed to bring on record that if fraud was committed
with her by her brother what step is taken by her against him. It is
matter of record that an application Ex.30 in the above suit was filed
by her brother Fuzail Ahmed U/O. 09 Rule 17 CPC R/W Section 151 CPC
which was allowed, however, no written statement was filed. Yet
another application was filed by her brother Fuzail Ahmed under the
same provision of law Ex.50 in the above suit which he also supported
with his affidavit in which he stated that he and defendants Nos.1(b) to
(d) (defendant No.1(d) is applicant of above revision) are real sisters
and brothers and such application is shown to had been drafted under
his instruction as well as the instructions of other legal heirs, means
the applicant also. At Para No.4 of the affidavit to this application, it is
stated by defendant No.1(a) on oath that he has informed about filing
of above suit to other legal heirs and requested them to execute
special power of attorney in his favour to pursue the above suit and
the same was in process. If it is so; she was well within the knowledge
about pendency of above suit and to say that the applicant was having
strained relations with her brother is of no avail to her. Strange to be
noted that on the one hand, the applicant states that she had no good
relations with her brother Fuzail Ahmed and on the other hand, she
speaks otherwise that she contacted with her brother Fuzail Ahmed in
November, 2017 and such aspect of the matter particularly and above
discussion generally suggest that she was not only having good
relations/terms with her brother and other family members but they
were exchanging views to each other on every issue including that of
the pendency of the above suit since its inception. It is matter of record
that in addition to above Appeal No.121 of 2016, they have also filed,
IInd Appeal No.30 of 2017 in which applicant is shown as appellant
No.4 showing their address as all residents of House No.64-B Block-A
Unit No.6 Latifabad Hyderabad which is filed against judgment and
decree passed in First Appeal No.121/2016, which is pending
adjudication before Honourable High Court of Sindh Circuit Court
Hyderabad, copy whereof is filed on record with statement dated
28.05.2019 by the learned counsel for respondent No.1. Further no
documentary proof and convincing evidence is brought on record by
the applicant to show that she firstly resided in the Canada and
thereafter is residing at USA at the time of service of notice in the
above suit and passing of exparte judgment. It is settled pinricple of
law that active concealment and suppression of facts in words and
deeds is an essential ingredient of fraud which cannot be inferred by
mere assertion rather it must be proved through strong and
independent pieces of evidence/documents. Resultantly, the material
brought on record and pointed out by the learned counsel for
-7-

applicant in the present case does not suggest any concealment or

suppression of the facts rather it has been gathered that applicant was
having every notice and knowledge about pendency of above suit. To
my humble view, the order dated 25.01.2019 passed by learned trial
Court is quite legal which does not call for interference by this Court.
The arguments advanced by learned counsel for applicant have no
force in them and the case laws (supra) relied upon by him, to my
humble opinion, are quite distinguishable from the facts and
circumstances of the case in hand as all these authorities are
applicable to those cases in which defendants are not served in
accordance with law whereas present is the case in which the applicant
was within the notice and knowledge about pendency of above suit.
Accordingly the instant revision application fails and is dismissed,
however, with no order as to costs. The office to return the R & Ps to
the learned trial Court alongwith copy of order for information and
compliance.
Pronounced in open Court.
Given under my hand and the seal of this Court on this 29 th day
of May, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDITIONAL DISTRICT JUDGE, HYDERABAD
 HOW TO VERIFY THIS DOCUMENT
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6B05ABE9EF90E9B91596A9D661CD01DB
IN THE COURT OF VITH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.
Sessions Case No.269 of 2019
The State
Versus
Muhammad Saleem S/o Muhammad Ibrahim Lashari…………………Accused.
Crime No.26/2019
P.S. Market Hyderabad
U/s 23-A(i) Sindh Arms Act
Mr. Mujeeb Qadir Memon, learned A.D.P.P for the State
Mr.Taimoor Hussain Keeio, learned counsel for accused
J U D G M E N T
18-06-2019

The above named accused has been sent up to stand his

trial in the above case and crime by Police Station Market for the
offence punishable U/s 23-A Sindh Arms Act, vide challan admitted on
04.03.2019.
2. The very charge against the accused as disclosed in the
FIR is that on 14.02.2019 at 0030 hours at complainant ASI Niaz Ali
Dahri arrested the accused from the road situated in front of main gate
of Noor Muhammad High School, Hyderabad, in presence of mashirs PC
Zulfiqar Ali and PC Deedar Ali and found him in possession of an
unlicensed T.T. pistol of 30-Bore having black strips on both sides of
butt without number alongwith magazine containing two live bullets
under such memo was prepared and singed at spot. Thereafter case
property was sealed and then accused and property were brought at
Police Station where instant FIR was registered.
3. As result of investigation, the investigation officer
submitted challan against the accused before the area Magistrate, who
accepted the challan and sent up the case to the Court of Honourable
Sessions Judge, Hyderabad, on jurisdictional ground and wherefrom the
R & Ps received by this Court for its disposal according to law.
4. In compliance of Section 265-C Cr.P.C. necessary case
papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.2, to which he did
not plead guilty and claimed to be tried vide his plea was recorded at
Ex.2/A.
5. Prosecution examined complainant ASI Niaz Ali Dahri as
PW-1 at Ex.3, he produced memo of arrest and recovery at Ex.3/A and
FIR at Ex.3/B, mashir of the incident PC Jawaid as PW-2 at Ex.4,
Investigating Officer ASI Muhammad Ashraf as PW-3 at Ex.4, he
produced memo of place of incident at Ex.4/A, expert report with letter
at Ex.4/B & 4/C respectively, mashir of the incident PC Zulfiqar Ali as
PW-3 at Ex.5. Thereafter learned ADPP for the State closed the side in
evidence vide his statement at Ex.6.
 -2-
6. Statement U/s 342 Cr.P.C. of accused was recorded at
Ex.7, who denied all the allegations leveled against him by the
prosecution and claimed to be innocent, however, he did not opt to
examine himself on oath or produce witnesses in defence.
7. Learned A.D.P.P. for the State argued that prosecution
witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
8. Learned counsel for the accused, on the other hand,
argued that prosecution case is highly doubtful contending further that
there is no cogent evidence with the prosecution and that P.Ws
examined have contradicted to each other on material facts. He further
argued that the accused is innocent, he was arrested from his house,
then he was involved in this false case, therefore, they may be
acquitted from the charge.
9. I have heard learned A.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-
(i) Whether on 14.02.2019 at 0030 hours accused was
arrested from Noor Muhammad High School, Hyderabad,
by the complainant party under preparation of mashirnama
in presence of mashirs and found him in possession of an
unlicensed 30-Bore T.T. pistol containing two live bullets in
its magazine from the right side fold of his Shalwar
including that of five mobile sets of different companies in
presence of mashirs?
(ii) What offence if any has been committed by the accused?.
My findings on points (I) and (II) are as under:-
FINDINGS
POINT NO.I Doubtful/Not proved.

POINT NO.II Accused is acquitted U/s 265-H(i) Cr.P.C.

REASONS
POINT NO.I
10. To prove its case, prosecution examined 04 witnesses. PW-
1, the complainant in his chief tried to support the role assigned to
him. However, he in his cross could not withstand the disclosure made
by him in his examination in chief. He claimed that he left Police
Station after maintaining a particular entry in the Roznamcha Register
and thereafter he apprehended the accused and effected recovery
from him, however, he failed to produce such particular entry to prove
his activities. This is what which is admitted by him in his cross. It is
matter of record that per prosecution case, in addition to recovery of
pistol and bullets, five mobile sets were also allegedly recovered from
the accused and the same were produced in Court as part of case
property but the
-3-
description of the given mobile sets neither is mentioned in the memo

of arrest and recovery nor it was introduced by the complainant in his

chief and this fact too is admitted by the complainant. This PW further

admitted that the pistol was without number and he did not show its

any identification mark nor its colour for which he made a volunteer

disclosure that the pistol was complete of white steel colour. However,

he watching the pistol deposed that it appears to be of blackish colour.

Not only this but he further made a very dubious statement that the

memo of arrest and recovery including that of the FIR were written by

WPC Taj Muhammad under his dictation. If it is so; since WPC Taj

Muhammad had not accompanied with the police party who allegedly

arrested the accused and prepared like memo at spot, the suggestion

put from this witness that the very memo of arrest and recovery was

prepared and signed at police station carry weight in it. PW-2,the

investigation officer claimed that he conducted investigation of the

case and after getting report from expert and so also visiting place of

occurrence submitted challan. He in his cross admitted that he has not

submitted the entry by which he left and visited the place of incident

and prepared such document Ex.4/A. PW-3 is mashir of arrest and

recovery document Ex.3/A and document Ex.4/A, the site inspection

memo who in his chief, however, did not support document Ex.4/A, the

site inspection memo by deposing that it does not bear his signature.

He though was declared as hostile and subjected to a chain of

questions by the prosecutor but even though he did not support

document Ex.4/A. PW-4 is second mashir of arrest, recovery and site

inspection memo and this witness was examined by the prosecution

with a view to get document Ex.4/A to be supported by him but he in

his chief remained silent as to whether document Ex.4/A, the site

inspection memo was signed by him at spot but also negated the very

document of arrest and recovery Ex.3/A by deposing that it does not

bear his signature. He in his cross to a suggestion by the defence

further admitted that document Ex.4/A also does not bear his

signature. To my view, the prosecution has miserably failed to prove

the point under discussion, therefore, same is answered in negative.

-4-

POINT NO.II

11. In view of the aforementioned appraisal of evidence, I am

of the humble view that the prosecution has failed to bring home the

charge against the accused beyond any shadow of reasonable doubt,

hence, accused Muhammad Saleem S/o Muhammad Ibrahim Lashari is

given benefit of doubt and stands acquitted of the charge U/s 265-H(i)

Cr.P.C. He produced in custody, is remanded back to custody with

directions to release him forthwith if he is not required in any other

custody case/crime.

Pronounced in open Court this 18th of June 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
CASE PROPERTY ORDER U/S 517 CR.P.C

The case property shown in the charge sheet viz. one 30-
Bore T.T. pistol alongwith magazine containing two live bullets be
deposited in District Armoury for its disposal according to law and five
mobile phones of different companies without SIMs be returned to its
original owner after proper verification and identification under receipt,
after expiry of appeal period.
Dated this 18th of June, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
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Document Code: 26C240248B0A64B889E2EAF42BFB0C7C
IN THE COURT OF VITH ADDITIONAL SESSIONS JUDGE, HYDERABAD
Criminal Revision Application No.14 of 2019
Saddam Hussain S/o Nizam Khaskheli
Muslim, adult, R/o Village Mira Hassan Mari
Tando Adam Sanghar at present confined at
Central Prison,
Hyderabad……………………………………………….Applicant
Versus
Learned Civil Judge & Judicial Magistrate-VI
Hyderabad………………………………………………………………Respondent.

Mr. Imtiaz Ali Abbasi, learned counsel for the applicant.

Mr. Attiq-ur-Rehman, learned ADPP for the State.

ORDER
20.06.2019.
This order shall dispose of aforesaid criminal revision
application filed on behalf of applicant against order dated 12.04.2019,
passed by learned Judicial Magistrate-VI, Hyderabad, on application
U/S. 167 Cr.P.C. submitted by Investigation Officer SIP Rao Muhammad
Jawaid of Police Station Sakhi Pir, Hyderabad in Crime No.36 of 2019,
U/S. 320, 337-G, 279, 427 PPC while giving remand of applicant.
2. Notice of this criminal revision was given to learned ADPP
for the State.
3. Facts in nutshell leading to this order are that complainant
Abdul Karim got lodged above FIR stating that on 31.03.2019 at 2230
hours he received information about an accident, hence, he arrived at
Civil Hospital in Emergency Ward and found his nephew namely
Muhammad Kashif having minor injuries while his wife Hina and sons
Abdul Ahad aged about 03 years, Abdul Wasay aged about 05 years
and Abdul Rafay aged about 06 years having severe injuries. He was
also informed that a Truck No.SBB-196 loaded with wheat sacks
dashed with their motorcycle, resultantly they fell down alongwith
motorcycle and came into front of tyre, meanwhile police arrived there
and issued letter but during treatment Abdul Wasay succumbed to his
injuries in the Hospital.
4. Learned counsel for applicant contended that the
grievance of the applicant is only to the extent of reduction in the
surety amount which is not fixed in accordance with the parameters
settled by the Honourable Apex Courts, the applicant though was
offered surety by the learned Magistrate while granting his remand on
12.04.2019 but the
 -2-

amount of bond fixed was excessive and because of that he being poor
could not furnish the same and resultantly he is still behind the bars,
therefore, the surety amount fixed as Rs.20,00,000/- may be reduced
to Rs.500,000/-.
5. Learned ADPP for the State argued that no illegality in the
order is agitated in the revision and as far as reduction of surety
amount is concerned, it is discretion of this Court, therefore, he has no
objection if the revision is allowed, however, surety amount may be
fixed keeping in view the gravity of the offence.
6. Record shows that on 12.04.2019 while accused was
produced before learned Judicial Magistrate-VI, Hyderabad for remand,
the learned Magistrate finding all the offences bailable, offered him
surety amount in the sum of Rs.20,00,000/-. However, the applicant
could not furnish the same so far and still he is in jail for want of
surety. The plea taken by the learned counsel for applicant is that the
applicant is poor, he has no means to get furnished a surety having
solvent in the sum of Rs.20,00,000/-. His like plea gets support from
the fact that though the applicant was offered surety on 12.04.2019
but still he is in Jail for want of surety. It is settled principal of law that
bond of surety amount is to be fixed with due regard to the
circumstances of the case and shall not be excessive. Admittedly, the
charge against the applicant is of Qatl-i-Khata by rash and negligent
driving. Thus, fixing bond in the sum of Rs.20,00,000/- which too in
bailable offences to my humble opinion is excessive in nature.
Accordingly, the revision application is allowed to the extent of
reducing surety amount from Rs.20,00,000/- shown in order dated
12.04.2019 to Rs.500,000/- and P.R. bond in the like amount to be
furnished by two solvent sureties in the sum of Rs.250,000/- each
before this Court as the offences having triable by Sessions Court and
due to which the R & Ps of the main case are already received by this
Court by way of transfer. The revision stands disposed of accordingly.
Pronounced in open court on this 20th day of June 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
IN THE COURT OF VITH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.
Sessions Case No.258 of 2019
The State
Versus
Muhammad Asif S/o Rashid Ahmed Shaikh……………………………………Accused.
Crime No.22/2019
P.S. Fort Hyderabad
U/s 23-A(i) Sindh Arms Act
Mr. Mujeeb Qadir Memon, learned A.D.P.P for the State
Mr. Taimoor Hussain Keeio, learned counsel for accused
J U D G M E N T
20-06-2019

The above named accused has been sent up to stand his

trial in the above case and crime by Police Station Market for the
offence punishable U/s 23-A Sindh Arms Act, vide challan admitted on
25.03.2019.
2. The very charge against the accused as disclosed in the
FIR is that on 06.03.2019 at 2210 hours complainant SIP Abdul
Khalique Arain registered the instant FIR stating that complainant
namely Muhammad Naeem S/o Nooruddin Shaikh of Crime No.21 of
2019, U/S. 506(2), 504, 427, 337-A(i), 337-F(i) PPC of Police Station
Fort, Hyderabad and witnesses handed over accused Muhammad Asif
S/o Rasheed Ahmed Shaikh alongwith one pistol and magazine, which
was checked and found containing 04 live bullets which was declared
as unlicensed. As the accused commits offence punishable U/S. 23-A
Sindh Arms Act, therefore, he was arrested and on his personal search
nothing was recovered and then recovered property was sealed in
white cloth bag for FSL then present FIR was registered on behalf of
the State.
3. As result of investigation, the investigation officer
submitted challan against the accused before the area Magistrate, who
accepted the challan and sent up the case to the Court of Honourable
Sessions Judge, Hyderabad, on jurisdictional ground and wherefrom the
R & Ps received by this Court for its disposal according to law.
4. In compliance of Section 265-C Cr.P.C. necessary case
papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.2, to which he did
not plead guilty and claimed to be tried vide his plea was recorded at
Ex.2/A.
5. Prosecution examined complainant/investigation officer SIP
Abdul Khalique Arain as PW-1 at Ex.3, he produced arrival and
departure entry, memo of arrest and recovery, FIR, letter for FSL and
FSL report at Ex.3/A to 3/E respectively, mashir of the incident Arslan
as PW-2 at Ex.4. Thereafter learned ADPP for the State closed the side
in evidence vide his statement at Ex.5.
6. Statement U/s 342 Cr.P.C. of accused was recorded at
Ex.6, who denied all the allegations leveled against him by the
prosecution and claimed to be innocent, however, he did not opt to
examine himself on oath or produce witnesses in defence.
7. Learned A.D.P.P. for the State argued that prosecution
witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
8. Learned counsel for the accused, on the other hand,
argued that prosecution case is highly doubtful contending further that
there is no cogent evidence with the prosecution and that P.Ws
examined have contradicted to each other on material facts. He further
argued that the accused is innocent, he was arrested from his house,
then he was involved in this false case, therefore, they may be
acquitted from the charge.
9. I have heard learned A.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-
(i) Whether on 06.03.2019 at 2200 hours accused was
handed over by complainant of Crime No.21 of 2019, U/S.
506(2), 504, 427, 337-A(i), 337-F(i) PPC of Police Station
Fort, Hyderabad and witnesses to complainant of present
case alongwith one pistol without license and magazine
containing four live bullets?
(ii) What offence if any has been committed by the accused?.
My findings on points (I) and (II) are as under:-
FINDINGS
POINT NO.I Doubtful/Not proved.

POINT NO.II Accused is acquitted U/s 265-H(i) Cr.P.C.

REASONS
POINT NO.I
10. To prove its case, prosecution examined 02 witnesses.

PW-1, the complainant in his chief tried to support the role assigned to
him. However, he in his cross could not withstand the disclosure made
by him in his examination in chief. He claimed that he left Police
Station after maintaining a particular entry in the Roznamcha Register
and thereafter he apprehended the accused and effected recovery
from him, however, he failed to produce such particular entry to prove
his activities. This is what which is admitted by him in his cross. It is
matter of record that per prosecution case, in addition to recovery of
pistol and bullets, five mobile sets were also allegedly recovered from
the accused and the same were produced in Court as part of case
property but the
-3-
description of the given mobile sets neither is mentioned in the memo

of arrest and recovery nor it was introduced by the complainant in his

chief and this fact too is admitted by the complainant. This PW further

admitted that the pistol was without number and he did not show its

any identification mark nor its colour for which he made a volunteer

disclosure that the pistol was complete of white steel colour. However,

he watching the pistol deposed that it appears to be of blackish colour.

Not only this but he further made a very dubious statement that the

memo of arrest and recovery including that of the FIR were written by

WPC Taj Muhammad under his dictation. If it is so; since WPC Taj

Muhammad had not accompanied with the police party who allegedly

arrested the accused and prepared like memo at spot, the suggestion

put from this witness that the very memo of arrest and recovery was

prepared and signed at police station carry weight in it. PW-2,the

investigation officer claimed that he conducted investigation of the

case and after getting report from expert and so also visiting place of

occurrence submitted challan. He in his cross admitted that he has not

submitted the entry by which he left and visited the place of incident

and prepared such document Ex.4/A. PW-3 is mashir of arrest and

recovery document Ex.3/A and document Ex.4/A, the site inspection

memo who in his chief, however, did not support document Ex.4/A, the

site inspection memo by deposing that it does not bear his signature.

He though was declared as hostile and subjected to a chain of

questions by the prosecutor but even though he did not support

document Ex.4/A. PW-4 is second mashir of arrest, recovery and site

inspection memo and this witness was examined by the prosecution

with a view to get document Ex.4/A to be supported by him but he in

his chief remained silent as to whether document Ex.4/A, the site

inspection memo was signed by him at spot but also negated the very

document of arrest and recovery Ex.3/A by deposing that it does not

bear his signature. He in his cross to a suggestion by the defence

further admitted that document Ex.4/A also does not bear his

signature. To my view, the prosecution has miserably failed to prove

the point under discussion, therefore, same is answered in negative.

-4-

POINT NO.II

11. In view of the aforementioned appraisal of evidence, I am

of the humble view that the prosecution has failed to bring home the

charge against the accused beyond any shadow of reasonable doubt,

hence, accused Muhammad Saleem S/o Muhammad Ibrahim Lashari is

given benefit of doubt and stands acquitted of the charge U/s 265-H(i)

Cr.P.C. He produced in custody, is remanded back to custody with

directions to release him forthwith if he is not required in any other

custody case/crime.

Pronounced in open Court this 18th of June 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
CASE PROPERTY ORDER U/S 517 CR.P.C

The case property shown in the charge sheet viz. one 30-
Bore T.T. pistol alongwith magazine containing two live bullets be
deposited in District Armoury for its disposal according to law and five
mobile phones of different companies without SIMs be returned to its
original owner after proper verification and identification under receipt,
after expiry of appeal period.
Dated this 18th of June, 2019.
 (MUHAMMAD FAZIL BOHIO)
VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
 HOW TO VERIFY THIS DOCUMENT
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7AFEF5D4A2F657D59D28324777E4FFD8
IN THE COURT OF VITH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.
Sessions Case No.374 of 2019
The State
Versus
1. Zeeshan S/o Nisaruddin Ansari (on bail)
2. Sikandar Masih S/o Amanat Masih (absconder)
3. Jangi Masih S/o unknown (absconder)
declared proclaimed offender vide order
dated 18.05.2019……………………………………………………………………………………Accused.
Crime No.06/2019
P.S. SITE Hyderabad
U/s 324, 353, 34 PPC
Mr. Mujeeb Qadir Memon, learned A.D.P.P for the State
Mr. Waseem Hussain, learned counsel for accused

J U D G M E N T
22-06-2019

The above named accused have been sent up to stand

their trial in the above case and crime by Police Station SITE for the
offence punishable U/s 324, 353, 34 PPC, vide challan admitted on
25.03.2019.
2. The very charge against the accused as disclosed in the
FIR is that on 21.01.2019 at 2000 hours ASI Naeem Ahmed of Police
Station SITE, Hyderabad, alongwith subordinates while busy in patrol
received spy information regarding presence of accused namely
Zeeshan Ansari already wanted in Crime No.293/2019 of Police Station
A-Section Latifabad, Hyderabad U/S. 392, 34 PPC, hence, they arrived
at pointed place and noticed the said accused alongwith two unknown
persons who watching the police party opened straight firing. The
police also retaliated by making firing and after the encounter, one
accused was apprehended in injured condition and unknown persons
made their escape good. The captive disclosed his identify as Zeeshan
S/o Nisaruddin Ansari, from whose possession one unlicensed pistol of
30-Bore with magazine containing 03 live bullets was recovered which
was declared as unlicensed and he also disclosed the names of
absconding accused as Sikandar Masih and Jangi Masih. Six empty
shells of SMG fired by police party and four empty shells of 30-Bore
pistol were taken from the place of encounter and after sealing the
property in separate parcels, such memo was prepared. Thereafter
accused and case property were brought at Police Station wherefrom
injured accused was sent to Bhitai Hospital while complainant lodged
present FIR and so also another FIR under Sindh Arms Act against the
accused.
 -2-

3. As result of investigation, the investigation officer

submitted challan against the accused before the area Magistrate, who
accepted the challan and sent up the case to the Court of Honourable
Sessions Judge, Hyderabad, on jurisdictional ground and wherefrom the
R & Ps received by this Court for its disposal according to law.
4. In compliance of Section 265-C Cr.P.C. necessary case
papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.5, to which he did
not plead guilty and claimed to be tried vide his plea were recorded at
Ex.5.
5. Prosecution examined complainant Naeem Ahmed as PW-1
at Ex.6, he produced memo of arrest and recovery at Ex.6/A and FIR at
Ex.6/B, mashir of the incident PC Zahid as PW-2 at Ex.7 and
Investigation Officer ASI Ashique Ali as PW-3 at Ex.8, he produced
attested Photostat copy of expert opinion report at Ex.8/A. Thereafter
learned ADPP for the State closed the side of evidence vide his
statement at Ex.09.
6. Statement U/s 342 Cr.P.C. of accused was recorded at
Ex.10, who denied all the allegations leveled against him by the
prosecution and claimed to be innocent, however, he did not opt to
examine himself on oath or produce witnesses in defence.
7. Learned D.D.P.P. for the State argued that prosecution
witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
8. Learned counsel for the accused, on the other hand,
argued that prosecution case is highly doubtful contending further that
there is no cogent evidence with the prosecution and that P.Ws
examined have contradicted to each other on material facts. He further
argued that the accused is innocent, they were arrested from their
houses, then he was involved in this false case, therefore, they may be
acquitted from the charge.
9. I have heard learned A.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-
(i) Whether on 21.01.2019 at 2130 hours at Hyderi Ghee Mill
Link Road, Hyderabad, accused alongwith absconding
accused Sikandar Maish and Jangi Masih being armed with
weapons opened shots upon police party headed by
complainant with intention to commit their murder and
under such circumstances if by the said act you have
 committed Qatl of any member of said police party, they
would have been guilty of their Qatl-i-Amd and also
deterred complainant party from discharging their lawful
duties?

(ii) What offence if any, has been committed by the accused?.

-3-

My findings on points (I) and (II) are as under:-

FINDINGS

POINT NO.I Doubtful/Not proved.

POINT NO.II Accused is acquitted U/s 265-H(i) Cr.P.C.

REASONS
POINT NO.I
10. To prove its case, prosecution examined 03 witnesses. A
minute look at the evidence of all three PWs transpires that they have
miserably failed to connect the accused with the commission of the
offence. PW-1 in his examination in chief even did not care to produce
the entry of the Roznamcha Register by which he left the police station
and subsequently arrested the accused nor he shown its number and
time of departure so that his activities could be visualized. He even did
not depose in his chief that the property recovered was sealed at spot.
Same is the position of PW-2, the attesting witness of memo of arrest
and recovery Ex.6/A. However, he shown the time of departure as 2000
hours. PW-1 in his cross deposed that they after leaving police station
first patrolled Mushtaque Chowk then Custom Office Chowk, then
Bollywood Mall and thereafter arrived at Fateh Chowk where he
received spy information whereas PW-2 to this aspect of the matter
deposed otherwise who even added one more place as Nara Jail where
according to him complainant received spy information. PW-1 deposed
that spy information was received at about 2100 hours whereas PW-2
deposed otherwise that complainant received spy information at about
2130 hours and again deposed that it was received at about 2115
hours. PW-2 shown the distance in between place of receiving spy
information and that of the place of occurrence as 2/3 minutes drive.
This PW further deposed the time consumed in the encounter was 2/3
minutes time and by this calculation he deposed that the time of arrest
and recovery would be 2121 hours. If it is so; the time of arrest and
recovery shown in the memo Ex.6/A is as 2130 hours. Both these PWs
deposed in the same breath that the pistol recovered was of black
colour, however, they watching the pistol deposed that it is not of
black colour but is of silver colour. These PWs deposed that the pistol
recovered was without number and without any description on it.
However, both these PWs watching the pistol deposed in the same
breath that some wordings on the right side barrel of the pistol as “CAL
30-BORE MAUSER MADE AS CHINA BY NORINCO” are inscribed on it
and no such disclosure is made in the memo of arrest and recovery. To
this aspect of the matter PW-2 further made a very strange statement
which reads that “The pistol produced before this Court is not of black
colour. Voluntarily says; the pistol recovered from the accused was of
black colour which has not been produced before this
-4-

Court”. So far evidence of PW-3 is concerned, his statement is also not

free from about. He claimed that he visited the place of wardat but
admitted that he did not prepare such memo. Yet, he admitted that he
has not produced the entry by which he left police station and visited
the place of occurrence. It is necessary to be noted that this PW in his
chief deposed that on 21.01.2019 he received police papers, property
and custody of accused in the morning time whereas the incident is
shown to had taken place on 21.01.2019 in the night time. Though, he
changed his like version in his cross by deposing that he received the
police papers and custody of accused on 22.01.2019 for investigation
and further made a volunteer statement that on 21.01.2019 case was
registered against the accused. However, his like statement cannot
change his earlier statement made by him in his chief. In addition to
this, there are other inconsistent statements appearing in the
statement of prosecution witnesses but those are unnecessary to be
discussed specially in view of above discussion. To my view, the
prosecution has failed to prove the point under discussion, therefore,
same is answered in negative.
POINT NO.II
11. In view of the aforementioned appraisal of evidence, I am
of the humble view that the prosecution has miserably failed to bring
home the charge against the accused beyond any shadow of
reasonable doubt, hence, accused Zeeshan S/o Nisaruddin Ansari is
given benefit of doubt and stands acquitted of the charge U/s 265-H(i)
Cr.P.C. He is present on bail, his bail bond stands cancelled and surety
is discharged. The case against absconding accused Sikandar Masih
and Jangi Masih be kept on dormant file and shall be reopened as and
when they surrender or brought before the Court.
Pronounced in open Court this 22nd of June 2019.

(MUHAMMAD FAZIL BOHIO)

 VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
CASE PROPERTY ORDER U/S 517 CR.P.C
The case property shown in the charge sheet viz. one 30-
Bore pistol without number alongwith magazine containing 03 live
bullets, 04 empty shells of 30-Bore and 06 empty shells of SMG may be
disposed of according to law after expiry of appeal period.
Dated this 22nd of June, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
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7D44DC55E286918AFD2DF6D95264BDF4
IN THE COURT OF VITH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.
Sessions Case No.222 of 2019
The State
Versus
Zeeshan S/o Nisaruddin Ansari…………………………………………………………Accused.
Crime No.07/2019
P.S. SITE Hyderabad
U/s 23-A Sindh Arms Act
Mr. Mujeeb Qadir Memon, learned A.D.P.P for the State
Mr. Waseem Hussain, learned counsel for accused

J U D G M E N T
22-06-2019
The above named accused have been sent up to stand
their trial in the above case and crime by Police Station SITE for the
offence punishable U/s 23-A Sindh Arms Act.
2. The very charge against the accused as disclosed in the
FIR is that on 21.01.2019 at 2130 hours accused was arrested after an
encounter from Hyderi Ghee Mill, Link Road, Hyderabad, in Crime
No.06 of 2019, U/S. 324, 353, 34 PPC and found in possession of an
unlicensed 30-Bore pistol without number alongwith magazine
containing three live bullets in presence of mashirs, hence, present FIR
was registered.
3. As result of investigation, the investigation officer
submitted challan against the accused before the area Magistrate, who
accepted the challan and sent up the case to the Court of Honourable
Sessions Judge, Hyderabad, on jurisdictional ground and wherefrom the
R & Ps received by this Court for its disposal according to law.
4. In compliance of Section 265-C Cr.P.C. necessary case
papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.2, to which he did
not plead guilty and claimed to be tried vide his plea was recorded at
Ex.2/A.
5. Prosecution examined complainant Muhammad Naeem as
PW-1 at Ex.3, he produced attested copy of memo of arrest and
recovery at Ex.3/A and FIR at Ex.3/B, mashir of the incident PC Zahid
as PW-2 at Ex.4 and Investigation Officer ASI Ashique Ali as PW-3 at
Ex.5, he produced expert opinion report at Ex.5/A. Thereafter learned
ADPP for the State closed the side in evidence vide his statement at
Ex.06.
6. Statement U/s 342 Cr.P.C. of accused was recorded at
Ex.07, who denied all the allegations leveled against him by the
prosecution and claimed to be innocent, however, he did not opt to
examine himself on oath or produce witnesses in defence.
 -2-

7. Learned D.D.P.P. for the State argued that prosecution

witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
8. Learned counsel for the accused, on the other hand,
argued that prosecution case is highly doubtful contending further that
there is no cogent evidence with the prosecution and that P.Ws
examined have contradicted to each other on material facts. He further
argued that the accused is innocent, he was arrested from his house,
then he was involved in this false case, therefore, they may be
acquitted from the charge.
9. I have heard learned A.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-
(i) Whether on 21.01.2019 at 2130 hours at Hyderi Ghee Mill,
Link Road, Hyderabad, accused arrested by the
complainant party in Crime No.06/2019, U/S. 324, 353, 34
PPC under preparation of mashirnama in presence of
mashirs after an encounter and was found in possession of
an unlicensed 30-Bore T.T. pistol without number alongwith
magazine containing three live bullets?

(ii) What offence if any, has been committed by the accused?.

My findings on points (I) and (II) are as under:-
FINDINGS
POINT NO.I Doubtful/Not proved.

POINT NO.II Accused is acquitted U/s 265-H(i) Cr.P.C.

REASONS
POINT NO.I
10. To prove its case, prosecution examined 03 witnesses. A
minute look at the evidence of all three PWs transpires that they have
miserably failed to connect the accused with the commission of the
offence. PW-1 in his examination in chief even did not care to produce
the entry of the Roznamcha Register by which he left the police station
and subsequently arrested the accused nor he shown its number and
time of departure so that his activities could be visualized. He even did
not depose in his chief that the property recovered was sealed at spot.
Same is the position of PW-2, the attesting witness of memo of arrest
and recovery Ex.6/A. However, he shown the time of departure as 2000
hours. PW-1 in his cross deposed that they after leaving police station
first patrolled Mushtaque Chowk then Custom Office Chowk, then
Bollywood Mall and thereafter arrived at Fateh Chowk where he
received spy information whereas PW-2 to this aspect of the matter
deposed otherwise who

-3-

even added one more place as Nara Jail where according to him
complainant received spy information. PW-1 deposed that spy
information was received at about 2100 hours whereas PW-2 deposed
otherwise that complainant received spy information at about 2130
hours and again deposed that it was received at about 2115 hours.
PW-2 shown the distance in between place of receiving spy information
and that of the place of occurrence as 2/3 minutes drive. This PW
further deposed the time consumed in the encounter was 2/3 minutes
time and by this calculation he deposed that the time of arrest and
recovery would be 2121 hours. If it is so; the time of arrest and
recovery shown in the memo Ex.6/A is as 2130 hours. Both these PWs
deposed in the same breath that the pistol recovered was of black
colour, however, they watching the pistol deposed that it is not of
black colour but is of silver colour. These PWs deposed that the pistol
recovered was without number and without any description on it.
However, both these PWs watching the pistol deposed in the same
breath that some wordings on the right side barrel of the pistol as “CAL
30-BORE MAUSER MADE AS CHINA BY NORINCO” are inscribed on it
and no such disclosure is made in the memo of arrest and recovery. To
this aspect of the matter PW-2 further made a very strange statement
which reads that “The pistol produced before this Court is not of black
colour. Voluntarily says; the pistol recovered from the accused was of
black colour which has not been produced before this Court”. So far
evidence of PW-3 is concerned, his statement is also not free from
about. He claimed that he visited the place of wardat but admitted that
he did not prepare such memo. Yet, he admitted that he has not
produced the entry by which he left police station and visited the place
of occurrence. It is necessary to be noted that this PW in his chief
deposed that on 21.01.2019 he received police papers, property and
custody of accused in the morning time whereas the incident is shown
to had taken place on 21.01.2019 in the night time. Though, he
changed his like version in his cross by deposing that he received the
police papers and custody of accused on 22.01.2019 for investigation
and further made a volunteer statement that on 21.01.2019 case was
registered against the accused. However, his like statement cannot
change his earlier statement made by him in his chief. In addition to
this, there are other inconsistent statements appearing in the
statement of prosecution witnesses but those are unnecessary to be
discussed specially in view of above discussion. To my view, the
prosecution has failed to prove the point under discussion, therefore,
same is answered in negative.
 -4-

POINT NO.II
11. In view of the aforementioned appraisal of evidence, I am
of the humble view that the prosecution has miserably failed to bring
home the charge against the accused beyond any shadow of
reasonable doubt, hence, accused Zeeshan S/o Nisaruddin Ansari is
given benefit of doubt and stands acquitted of the charge U/s 265-H(i)
Cr.P.C. He is present on bail, his bail bond stands cancelled and surety
is discharged.
Pronounced in open Court this 22nd of June 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
CASE PROPERTY ORDER U/S 517 CR.P.C
The case property shown in the charge sheet viz. one 30-
Bore pistol without number alongwith magazine containing 03 live
bullets may be disposed of according to law after expiry of appeal
period.
Dated this 22nd of June, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
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Document Code: 2D3AA8C37A1BACEA6E4D008B4BFD6349
IN THE COURT OF VITH ADDITIONAL DISTRICT JUDGE, HYDERABAD .

Succession Application No.170 of 2019

Adil Mashkoor Junejo

S/o Late Mashkoor Ahmed Junejo
Muslim, adult, R/o House No.04/100
Paro HDA Bungalows, Phase-II
Qasimabad, District Hyderabad………...……………...
……………………..Applicant.

Versus

1. Mst. Rafia Begum Wd/o Mashkoor Ahmed Junejo

Muslim, adult, R/o House No.C-10,
Mohallah Anwar Villas New Wahdat Colony
Qasimabad Hyderabad
2. Faisal Mashkoor S/o Mashkoor Ahmed Junejo
Muslim, adult, R/o House No.C-10
Mohallah Anwar Villas near Wahdat Colony
Qasimabad Hyderabad
3. Public at large………………………………..………………………….Opponents.

Mr. Bakhtiar A. Panhwar, advocate for applicant

Syed Hamad Ali Shah, Advocate for opponent No.2

ORDER
24.06.2019
This order shall dispose of present succession application
filed U/s 372 of Succession Act, 1925 by the applicant in which it is
stated that deceased Mashkoor Ahmed Junejo S/o Fateh-ud-Din Junejo,
died on 20.03.2019 leaving behind him the applicant and opponents
Nos.1 & 2 as his surviving legal heirs. The deceased during his lifetime
was maintaining an Account bearing No.12600051539803 in HBL Bank,
Qasimabad Branch, Hyderabad, such schedule is annexed with the
application. The Applicant approached the concerned bank for
providing bank statement of shown account but to no avail.

In support of the case, the affidavits of two independent

witnesses namely Naveed Islam S/o Islam Nabi and Muhammad Waris
S/o Ishrat Hussain are filed, who have stated that there is no other
legal heir of deceased except the applicant and opponent Nos.1 & 2.
Apart from this, affidavits of opponent Nos.1 & 2 are also filed
extending no objection in favour of applicant.

Heard learned counsels and perused the material available

on record.
 -2-

It is necessary to be pointed that the present matter was

fixed on 04.07.2019. However, it was ante-dated on application
submitted by learned counsel for applicant from 04.07.2019 to
20.06.2019. It is matter of record that during this period one person
namely Faisal Mashkoor, who had earlier filed application on
25.05.2019 for joining him as opponent No.2 was allowed and such
amended title was filed. Today amended succession application has
also been filed at Ex.20.

The applicant has prayed for succession certificate in

favour of applicant and opponents Nos.1 & 2 to receive the amount
from the bank as shown in the schedule annexed with application. The
notice was published in daily newspaper “IBRAT” Hyderabad dated
14.05.2019, however, nobody has come forward to object to the prayer
made by the applicant. In addition to this, report was called from
Mukhtiarkar concerned who vide his letter dated 23.05.2019 reported
that deceased died leaving behind the applicant and opponent No.1 &
2 as his legal heirs. This is what which is reported by SHO Police
Station Bhitai Nagar vide letter dated 20.06.2019 and the Deputy
Director NADRA Hyderabad Zone in his report dated 15.05.2019. In
addition to this, the Manager Habib Bank Limited Qasimabad Branch,
Hyderabad in his report dated 15.05.2019 stated that the deceased
was having Account No.12600051539803. He has also shown in his
report the principle amount with mark-up as Rs.668,915.05 as on
15.05.2019.

Record shows that there is no impediment nor any will has

been found. Therefore, for the aforesaid reasons, the application is
allowed. The Accountant District and Sessions Court, Hyderabad is
appointed as Commissioner with directions to withdraw amount of Rs.
668,915.05 from Habib Bank Limited Qasimabad Branch, Hyderabad
lying in Account No. 12600051539803 and disburse the same to the
heirs of deceased i.e. applicant and opponents Nos.1 & 2 as per their
respective shares according to Muhammadan Law subject to furnishing
P.R. Bond of the applicant in equivalent amount shown in the balance
of the deceased and such report be submitted before this court within
30 days. The Succession Application stands disposed of accordingly.

Pronounced in open Court.

Given under my hand and the seal of this Court on this 24 th day
of June, 2019.

(MUHAMMAD FAZIL BOHIO)

VIth Additional District Judge, Hyderabad
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7B1EA6080EEBE75C35F104EC725444C4
IN THE COURT OF VITH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.
Sessions Case No.135 of 2019
The State
Versus
Kamal S/o Muhammad Hussain Oad Rajput (on bail)…………Accused.
Crime No.11/2019
P.S. G.O.R. Hyderabad
U/s 23-A Sindh Arms Act

Mr. Mujeeb Qadir Memon, learned A.D.P.P for the State

Ms. Seema Khoso, learned counsel for accused

J U D G E M E N T
24-06-2019

The above named accused has been sent up to stand his

trial in the above case and crime by Police Station G.O.R. Hyderabad
for the offence punishable U/s 23-A Sindh Arms Act, vide challan
admitted on 18.02.2019.
2. Facts of the present case in nutshell are that complainant
ASI Syed Koral Shah of Police Station GOR, Hyderabad, registered the
instant FIR stating that on 30.01.2019, he accompanied with staff each
PC Nisar Ahmed, PC Imtiaz Khan and DHC Atta Muhammad vide
Roznamcha entry No.40 at 1930 hours in Government Mobile vehicle
No.SPD-973, left Police Station for patrol and during patrol, they were
going to Bangali Colony Chowk from Shahbaz Chowk and when they
took turn near Bangali Chowk where they found a person on the side of
the road, who watching police mobile, tried to escape towards GTC
Ground but complainant party de-boarded from the mobile and
apprehended him at 2000 hours. Due absence of private persons, PC
Nisar Ahmed and PC Imtiaz Khan were associated as mashirs. On
inquiry, captive disclosed his name as Kamal S/o Muhammad Hussain,
B/c Oad Rajput, R/o House No.995, Oad Mohallah, Baban Shah Colony,
GOR Hyderabad and on his personal search one pistol was recovered
from right fold of his Shalwar, which was checked and found without
number and words “CAL-9MM PANTENTED AUGUST-1970” engraved in
English on right side and words “BROWING SIGSOURYS TOMIN
GERMANY” on left side having black plastic butt. Thereafter police
party checked the magazine and found 03 live bullets of 9MM, which
were declared as unlicensed. On his further personal search, two notes
of Rs.200/- were recovered from right side pocket of his Qameez,
therefore, accused was arrested, recovered property was sealed in
white colour cloth bag and such memorandum of arrest and recovery
was prepared in presence of mashirs with the help of torch light and
then accused and case property were brought at Police Station where
two separate FIRs were registered.
 -2-
3. As result of investigation, the investigation officer
submitted challan against the accused before the area Magistrate, who
accepted the challan and sent up the case to the Court of Honourable
Sessions Judge, Hyderabad, on jurisdictional ground and wherefrom the
R & Ps received by this Court for its disposal according to law.
4. In compliance of Section 265-C Cr.P.C. necessary case
papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.2, to which he did
not plead guilty and claimed to be tried vide his plea was recorded at
Ex.2/A.
5. Prosecution examined complainant ASI Syed Koral Shah as
PW-1 at Ex.3, he produced departure entry at Ex.3/A, memo of arrest
and recovery at Ex.3/B and FIR at Ex.3/C, mashir of the incident PC
Nisar Ali as PW-2 at Ex.4, he produced memo of site inspection at
Ex.4/A and Investigation Officer SIP Muhammad Ali Shah as PW-3 at
Ex.5, he produced departure entry at Ex.5/A, letter for FSL at Ex.5/B
and Expert report at Ex.5/C. Thereafter learned ADPP for the State
closed the side in evidence vide his statement at Ex.06.
6. Statement U/s 342 Cr.P.C. of accused was recorded at
Ex.07, who denied all the allegations leveled against him by the
prosecution and claimed to be innocent, however, he did not opt to
examine himself on oath or produce witnesses in defence.
7. Learned A.D.P.P. for the State argued that prosecution
witnesses have fully supported their case, there is no contradictory
statement made by them to damage the prosecution case. It is a fit
case in which accused may be convicted as he is hardened criminal.
8. Learned counsel for the accused, on the other hand,
argued that prosecution case is highly doubtful contending further that
there is no cogent evidence with the prosecution and that P.Ws
examined have contradicted to each other on material facts. She
further argued that the accused is innocent, he was arrested from his
house, then he was involved in this false case, therefore, he may be
acquitted from the charge.
9. I have heard learned A.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-
(i) Whether on 30.01.2019 at 2000 hours at G.T.C. Ground
Road near Bangali Colony Chowk, Hyderabad, accused was
arrested by police party headed by ASI Syed Koral Shah of
P.S G.O.R. Hyderabad and was found in possession of an
unlicensed pistol without number with black butt alongwith
 magazine containing 03 live bullets in presence of
mashirs?

(ii) What offence if any, has been committed by the accused?.

My findings on points (I) and (II) are as under:-
 -3-

FINDINGS

POINT NO.I Not proved/doubtful.

POINT NO.II Accused is acquitted U/s 265-H(i) Cr.P.C.

REASONS

POINT NO.I

10. To prove its case, prosecution examined 03 witnesses out

of which PW-1 and 02 are examined as star witnesses of arrest and
recovery. A minute look at the evidence of these two PWs transpires
that they are not consistent to each other on material points.
According to PW-1, in addition to recovery of pistol without number
from right side fold of Shalwar of accused which was having some
English words engraved on its right barrel as “TAINTED AUGUST 1970
CAL 9MM”, he also recovered from right side pocket of shirt of accused
two Pak currency notes of 100 denominations whereas PW-2 in his
evidence remained silent as to such disclosure appearing on the body
of pistol. Not only this but he also deposed differently as to recovery of
the two Pak currency notes that the same were recovered from left
side pocket of shirt of the accused. However, reserved column for case
property in the challan sheet is silent as to whether any recovery of
cash in addition to pistol and bullets, was the part and parcel of case
property. Further both these PWs remained silent as to any other
particular description of the pistol mentioned in the memo of arrest
and recovery viz. some other words engraved on the left side barrel as
“BROWNING SIGSOURYS TOMIN GERMANY”. Furthermore, as to this
aspect of the matter, the report of expert at Ex.5/C, is silent as to
words appearing on the right side barrel of the pistol introduced by the
complainant in his chief. It is an admitted position that complainant did
not pick private persons and shown them as witnesses of arrest and
recovery. He in his cross deposed that when they were in the mobile,
they saw the accused and due to traffic jam their mobile was with slow
speed, however, they apprehended him. As to fulfillment of the
mandate of Section 103 Cr.P.C, he deposed that he tried to associate
private persons but none from them was found available. Very strange
to be noted that on the one hand, he admits that they seen the
accused while they were in the police mobile and due to traffic jam the
mobile was with slow speed and on the other hand he speaks
differently that he could not associate private persons as they were not
found available. Thus, the explanation towards association of
independent persons is redundant and can not be treated as valid one.
In the case law reported as 2019 YLR 422 (d) Sindh [YAMEEN VS. THE
STATE], it has been held that;-
 -4-
“S. 103---Search to be made in presence of witness---
Object---Prime object of said provision was to ensure
transparency and fairness on the part of police during the
course of recovery, curb the false implication and minimize
the scope of foisting of fake recovery upon the accused”.

It is the case of prosecution so also per PW-1 & 2, the pistol

recovered was without number whereas the report of the expert
produced on record at Ex.5/C mentions the pistol with No.rubbed.
According to complainant he prepared the memo of arrest and
recovery by sitting on front seat of mobile, however, he remained
silent that upon which source of light he prepared the same as the
time of arrest and recovery is shown as night time of 08:00 P.M. Yet
PW-2 as to the preparation of memo by complainant deposed that they
taken back the accused at mobile where he by sitting on rear seat of
mobile prepared the memo of arrest and recovery upon source of torch
light, however, he in his cross contradicted to his own examination in
chief by deposing that complainant prepared the memo by sitting on
front seat of mobile. In addition to above, these PWs also committed
other contradictory statements but those unnecessary to be discussed
specially in view of the above discussion. As regards the evidence of
PW-3, his statement is formal and the same needs no discussion. Yet,
he admitted that the numbers of Pak currency notes are not mentioned
in the memo of arrest and recovery nor the same notes are shown by
him in the challan sheet as part of case property. In view of the above
discussion, I am of the considered view that prosecution has failed to
prove the point under discussion which is answered in the negative.
POINT NO.II
11. In view of the aforementioned appraisal of evidence, I am
of the humble view that the prosecution has miserably failed to bring
home the charge against the accused beyond any shadow of
reasonable doubt, hence, accused Kamal S/o Muhammad Hussain Oad
Rajput is given benefit of doubt and stands acquitted of the charge U/s
265-H(i) Cr.P.C. He is present on bail, his bail bond stands cancelled
and surety is discharged.
Pronounced in open Court this 24th of June 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
CASE PROPERTY ORDER U/S 517 CR.P.C
The case property shown in the charge sheet viz. an
unlicensed pistol without number alongwith magazine and 03 live
bullets be deposited in District Armoury for its disposal according to
law after expiry of appeal period.
Dated this 24th of June, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
 HOW TO VERIFY THIS DOCUMENT
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91262F59022FDD4B132B887EFD0E8B8A
IN THE COURT OF VITH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.
Sessions Case No.123 of 2019
The State
Versus
1. Abdul Ghafoor S/o Muhammad Ayoub Chandio (in custody)
2. Muhammad Usman S/o Faqeer Ahmed Chandio (in custody)
…………………………………………………………………………………Accused.
Crime No.09/2019
P.S. Naseem Nagar @ Qasimabad
U/s 324, 353, 34 PPC
Mr. Mujeeb Qadir Memon, learned A.D.P.P for the State
Mr. Taimoor Hussain Keerio, learned counsel for
accused Abdul Ghafoor
Ms. Kainat Junejo, learned counsel for accused Usman.

J U D G M E N T
24-06-2019

The above named accused have been sent up to stand

their trial in the above case and crime by Police Station Naseem Nagar
@ Qasimabad for the offence punishable U/s 324, 353, 34 PPC, vide
challan admitted on 02.02.2019.
2. The very charge against the accused as disclosed in the
FIR is that on 06.01.2019 at 2000 hours SIP Syed Faiz Ali Shah of Police
Station Naseem Nagar, Hyderabad, alongwith subordinates arrived at
“Fasadi” canal where started snap checking during which two persons
boarded on motorcycle reached there who watching police party tried
to reverse the motorcycle but they were cautioned to stop and as a
result they opened straight firing upon police party. The police also
retaliated by making firing and after the encounter of 10 minutes, one
accused was apprehended in injured condition and another person
made his escape good. The captive disclosed his identify as Abdul
Ghafoor S/o Muhammad Ayoub Chandio, from whose possession one
unlicensed pistol of 30-Bore TT pistol with empty magazine which was
declared as unlicensed. Police party also recovered from right side
pocket of his shirt a shopper containing one gold “Haar” with golden
“dori” having red and green pearls,(2) two gold “Jhumak” having red
and green pearls, (3) one gold “Tikka” having red and green pearls, (4)
one gold chain, (5) two gold ladies rings, (6) four gold “Balian”, (7) one
gold nose pin then police also taken into custody the motorcycle which
was having registration No.SKN-6330 of Honda Company, red colour
for which captive disclosed that the same are stolen by him alongwith
co-accused from the house of Dr. Shakeel in between 27.12.2018 to
30.12.2018. On inquiry he also disclosed the name of absconding
accused as Muhammad Usman S/o Fakir Muhammad. Four empty
shells of 30-Bore fired by
 -2-

accused and six empty shell fired by police party were taken from the
place of encounter and after sealing the property in separate parcels,
such memo was prepared in presence of mashirs ASI Abdul Hadi and
HC Ali Ahmed. Thereafter injured accused was shifted to Hospital
through ASI Abdul Hadi whereas case property was brought at Police
Station where complainant lodged present FIR and so also another FIR
under Sindh Arms Act against the accused.
3. As result of investigation, the investigation officer
submitted challan against the accused before the area Magistrate, who
accepted the challan and sent up the case to the Court of Honourable
Sessions Judge, Hyderabad, on jurisdictional ground and wherefrom the
R & Ps received by this Court for its disposal according to law.
4. In compliance of Section 265-C Cr.P.C. necessary case
papers were supplied to both accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.02, to which they
did not plead guilty and claimed to be tried vide their pleas were
recorded at Ex.2/A & 2/B.
5. Prosecution examined complainant Syed Faiz Ali Shah as
PW-1 at Ex.4, he produced departure entry at Ex.4/A, memo of arrest
and recovery at Ex.4/B, arrival back entry at Ex.4/C, FIR at Ex.4/D and
police letter at Ex.4/E, mashir of the incident ASI Abdul Hadi as PW-2 at
Ex.5, he produced entry No.20 at Ex.5/A and site inspection memo at
Ex.5/B and Investigation Officer ASI Nazeer Ahmed Shoro as PW-3 at
Ex.6, he produced memo of injuries at Ex.6/A, memo of arrest and
recovery of accused Muhammad Usman at Ex.6/B. Thereafter learned
ADPP for the State closed the side of evidence vide his statement at
Ex.07.
6. Statement U/s 342 Cr.P.C. of accused was recorded at Ex.8
& 9 respectively, who denied all the allegations leveled against them
by the prosecution and claimed to be innocent, however, they did not
opt to examine themselves on oath or produce witnesses in defence.
7. Learned ADPP for the State argued that prosecution
witnesses examined have fully supported the case, the contradictions
made by them, if any, are minor in nature and the same will not
change the fate of evidence. He argued that this is the fit case in which
conviction may be awarded as the accused are notorious and habitual
one.
8. Learned counsel for accused Abdul Ghafoor argued that
there are serious contradictory statements made by the prosecution
witnesses so far examined, they are not in league to each other on
material points. He further argued that even they are not in league
with regard to the boundary of the place of occurrence and the
distance in between Police Station and that of the place of incident. He
argued that the police officer who removed the accused/injured to
Hospital made a very serious contradictory statement
-3-
regarding the time by which he removed the accused from place of
occurrence and arrived at the Hospital which fact of the matter alone is
sufficient to create doubt in the prosecution case as whole. He further
argued that complainant violated the mandate behind Section 103
Cr.P.C. as according to him though private persons were available but
he did not associate them as witnesses of arrest and recovery nor he
taken action against them as provided U/S. 187 PPC. He therefore,
prayed for acquittal of the accused. He relied upon case law reported
as 2019 YLR 422 (Sindh) and 1993 SCMR 1345.
9. Learned counsel for accused Muhammad Usman while
adopting the arguments of learned counsel for accused Abdul Ghafoor,
further contended that it is the case of prosecution that accused
Usman was arrested from his house on 07.01.2019 at about 1845
hours when remaining recovery was effected from him in presence of
mashirs Khalil Ahmed and Farhan Ahmed but the prosecution failed to
examine the attesting witnesses of this document to support this
document and evidence so far came in this regard. She argued that
accused Usman was arrested just to strengthen the case against co-
accused Abdul Ghafoor because they made him half fry and they were
apprehending from the consequences of such illegal act. She therefore,
prayed for acquittal of the accused.
10. I have heard learned A.D.P.P for the State, learned
counsels for the accused and perused the record available on record
carefully.
Now the points for determination of the case before me are
as under:-
(i) Whether on 06.01.2019 at 2150 to 2200 hours at Link
Road, Fisadi Wah near Abdullah Garden Qasimabad,
Hyderabad, both accused being armed with weapons
opened shots upon police party headed by complainant
with intention to commit their murder and under such
circumstances if by the said act they have committed Qatl
of any member of said police party, they would have been
guilty of their Qatl-i-Amd and also deterred complainant
party from discharging their lawful duties?

(ii) What offence if any, has been committed by the accused?.

My findings on points (I) and (II) are as under:-
FINDINGS
 POINT NO.I Doubtful/Not proved.

POINT NO.II Accused are acquitted U/s 265-H(i) Cr.P.C.

REASONS
POINT NO.I
10. To prove its case, prosecution examined 03 witnesses. A
minute look at the evidence of all three PWs transpires that they have
miserably failed to connect the accused with the commission of the
offence. PW-1 deposed that they after leaving police station they first
patrolled Hyderabad bypass then
-4-

came beneath the Indus Bridge and thereafter arrived at the place of
occurrence whereas PW-2 deposed otherwise that they after leaving
Police Station first patrolled Naseem Nagar Chowk, thereafter came at
bypass Hyderabad and then arrived at place of occurrence. PW-1
shown the distance in between Police Station and that of the place of
wardat as three kilometers whereas PW-2 introduced this distance as
one kilometer. PW-1 in his examination in chief deposed that finding no
private persons available, he appointed ASI Abdul Hadi and HC Ali
Ahmed as mashirs whereas he in his cross negated his like version by
deposing that he tried to associate private persons who were found
available when the memo was being prepared but no one from them
prepared to become the mashir and that he did not take action against
them as provided under Section 187 PPC. Provision of Section 103
Cr.P.C. is mandatory in nature. Its wisdom is to show fairness and bring
transparency while making arrest of accused and effect recovery from
him/them. In this case the complainant taken two pleas one that he did
not find private persons available, therefore, he appointed his
subordinate as mashirs whereas his second plea taken by him in his
cross speaks otherwise that private persons were available but they
refused to assist him and he did not take action against them as
provided under Section 187 PPC. Thus, his like explanation is neither
forceful nor valid one. Reliance in this regard is placed upon case law
reported as 2019 YLR 422 Sindh [YAMEEN VS. THE STATE]. PW-1
deposed that they arrived at place of occurrence at about 2150 hours,
10 minutes time was consumed in the encounter and thereafter 40
minutes time was consumed in completing codal formalities at spot.
PW-2 who removed the custody of accused deposed that at about 2240
hours he left place of occurrence to Civil Hospital and he arrived inside
the Hospital with accused at about 2305 hours. This PW, however,
shown his ignorance that per medical certificate the accused was
handed over to Doctor for treatment at about 2220 hours. It is matter
of record that accused in his statement produced Final Medicolegal
Certificate at Ex.8/A which shows the time of admission of the accused
inside the Hospital as 10:20 P.M. If it is so; the entire exercise
regarding the arrest of accused and recovery from him at place of
occurrence, sealing of the property and preparation of memo at the
shown place appears to be doubtful. As to recovery of pistol PW-1
deposed that the pistol was without number and complete of gun
metallic black colour but he watching the pistol deposed that its upper
side appears to be of steel white colour while its lower side is of gun
metallic colour. Yet to this aspect of the matter PW-2 deposed
otherwise that the pistol recovered was complete of black colour with
black strips to its butt. However, he watching the pistol deposed that it
is not of complete black colour. PW-2 shown the boundaries of place of
wardat as the Fasadi canal was
-5-

facing from its eastern side, Abdullah Garden was facing from its
western side, Soomra Villages were facing from its southern side and
Keeria village was facing from its northern side whereas PW-3 deposed
otherwise that place of occurrence was having boundaries as an open
plot where housing scheme was launched from its northern side, same
was the position from its southern side, Abdullah Garden was facing
from its eastern side and from its western side village of Bachal
Soomro was facing. PW-1 deposed that accused Muhammad Usman
made his escape good by running towards Palari village whereas PW-2
deposed otherwise that accused Muhammad Usman made his escape
good by running towards Soomra village. So far arrest and further
recovery of accused Muhammad Usman by PW-3, his statement alone
cannot be relied upon specially when the attesting witnesses of memo
of his arrest and recovery Ex.6/B, because attesting witnesses of this
document are not examined by the prosecution. To my opinion
prosecution has miserably failed to prove its case against the accused
beyond shadow of doubt because multiple circumstances are not
necessary required to create doubt into the guilt of accused but even
single circumstance creating doubt, entitles the accused extending him
benefit of doubt. In addition to this, there are other inconsistent
statements appearing in the statement of prosecution witnesses but
those are unnecessary to be discussed specially in view of above
discussion. To my view, the prosecution has failed to prove the point
under discussion, therefore, same is answered in negative.
POINT NO.II
11. In view of the aforementioned appraisal of evidence, I am
of the humble view that the prosecution has miserably failed to bring
home the charge against the accused beyond any shadow of
reasonable doubt, hence, accused Abdul Ghafoor S/o Muhammad
Ayoub Chandio and Muhammad Usman S/o Faqeer Ahmed Chandio are
given benefit of doubt and stand acquitted of the charge U/s 265-H(i)
Cr.P.C. They are produced in custody, they are remanded to custody
with directions to Jail Superintendent to release them forthwith, if they
are not required in any other custody case/crime.
Pronounced in open Court this 24th of June 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
 -6-

CASE PROPERTY ORDER U/S 517 CR.P.C

The part of the case property shown in the charge sheet
viz. one gold “Haar” with golden “dori” having red and green pearls,(2)
two gold “Jhumak” having red and green pearls, (3) one gold “Tikka”
having red and green pearls, (4) one gold chain, (5) two gold ladies
rings, (6) four gold “Balian”, (7) one gold nose pin, has already been
handed over to one Doctor Shakeel by concerned Magistrate being
property of Crime No.07/2019, U/S. 380, 457, 454 PPC shall remain
with him. As regards the second part of case property viz. one CD-70
motorcycle of red colour Model 2001 bearing Registration No.SKN-6330
be returned to its original owner after proper verification and
identification under receipt whereas one 30-Bore TT pistol without
number alongwith empty magazine, 04 empty shells of 30-Bore and 06
empty shells of SMG may be disposed of according to law after expiry
of appeal period.
Dated this 24th of June, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
 HOW TO VERIFY THIS DOCUMENT
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F3FFB3588038FCA2100AF2C6462F4F86
IN THE COURT OF VITH-ADDITIONAL SESSIONS JUDGE, HYDERABAD.
Sessions Case No.124 of 2019
The State

Versus

Abdul Ghafoor S/o Muhammad Ayoub Chandio……………………………Accused.

Crime No.10/2019
P.S. Naseem Nagar @ Qasimabad
U/s 23-A Sindh Arms Act
Mr. Mujeeb Qadir Memon, A.D.P.P for the State
Mr. Taimoor Hussain Keerio, counsel for accused

J U D G M E N T
24-06-2019
The above named accused has been sent up to stand their
trial in the above case and crime by Police Station Naseem Nagar for
the offence punishable U/s 23-A Sindh Arms Act, vide challan admitted
on 02.02.2019.
2. The very charge against the accused as disclosed in the
FIR is that on 06.01.2019 in between 2150 hours to 2200 hours
accused was arrested after an encounter from Link Road, Fisadi Wah
near Abdullah Garden Qasimabad, Hyderabad, in Crime No.09 of 2019,
U/S. 324, 353, 34 PPC and was found in possession of an unlicensed
30-Bore TT alongwith empty magazine in presence of mashirs, hence,
present FIR was registered.
3. As result of investigation, the investigation officer
submitted challan against the accused before the area Magistrate, who
accepted the challan and sent up the case to the Court of Honourable
Sessions Judge, Hyderabad, on jurisdictional ground and wherefrom the
R & Ps received by this Court for its disposal according to law.
4. In compliance of Section 265-C Cr.P.C. necessary case
papers were supplied to the accused vide Ex.1. Formal charge U/S.
265-D Cr.P.C. against the accused was framed at Ex.2, to which he did
not plead guilty and claimed to be tried vide his plea was recorded at
Ex.2/A.
5. Prosecution examined complainant Syed Faiz Ali Shah as
PW-1 at Ex.3, he produced departure entry at Ex.3/A, attested copy of
memo of arrest and recovery at Ex.3/B, attested copy of arrival back
entry at Ex.3/C and FIR at Ex.3/D, mashir of the incident ASI Abdul Hadi
as PW-2 at Ex.4, he produced entry No.20 at Ex.4/A and site inspection
memo at Ex.4/B and Investigation Officer ASI Nazeer Ahmed Shoro as
PW-3 at Ex.5, he produced police letter at Ex.5/A and FSL report at
Ex.5/B. Thereafter learned ADPP for the State closed the side of
evidence vide his statement at Ex.06.
 -2-

6. Statement U/s 342 Cr.P.C. of accused was recorded at

Ex.07, who denied all the allegations leveled against him by the
prosecution and claimed to be innocent, however, he did not opt to
examine himself on oath or produce witnesses in defence.
7. Learned ADPP for the State argued that prosecution
witnesses examined have fully supported the case, the contradictions
made by them, if any, are minor in nature and the same will not
change the fate of evidence. He argued that this is the fit case in which
conviction may be awarded as the accused are notorious and habitual
one.
8. Learned counsel for accused argued that there are serious
contradictory statements made by the prosecution witnesses so far
examined, they are not in league to each other on material points. He
further argued that even they are not in league with regard to the
boundary of the place of occurrence and the distance in between
Police Station and that of the place of incident. He argued that the
police officer who removed the accused/injured to Hospital made a
very serious contradictory statement regarding the time by which he
removed the accused from place of occurrence and arrived at the
Hospital which fact of the matter alone is sufficient to create doubt in
the prosecution case as whole. He further argued that complainant
violated the mandate behind Section 103 Cr.P.C. as according to him
though private persons were available but he did not associate them
as witnesses of arrest and recovery nor he taken action against them
as provided U/S. 187 PPC. He therefore, prayed for acquittal of the
accused. He relied upon case law reported as 2019 YLR 422 (Sindh)
and 1993 SCMR 1345.
9. I have heard learned A.D.P.P for the State, learned counsel
for the accused and perused the record available on record carefully.
Now the points for determination of the case before me are
as under:-
(i) Whether on 06.01.2019 at 2150 hours to 2200 hours at
Link Road, Fisadi Wah near Abdullah Garden Qasimabad
Hyderabad, accused was arrested by complainant party
under preparation of mashirnama in presence of mashirs
after an encounter and was found in possession of an
unlicensed 30-Bore T.T. pistol without number alongwith
empty magazine?

(ii) What offence if any, has been committed by the accused?.

My findings on points (I) and (II) are as under:-
FINDINGS
POINT NO.I Doubtful/Not proved.
POINT NO.II Accused is acquitted U/s 265-H(i) Cr.P.C.
 -3-

REASONS
POINT NO.I
10. To prove its case, prosecution examined 03 witnesses. A
minute look at the evidence of all three PWs transpires that they have
miserably failed to connect the accused with the commission of the
offence. PW-1 deposed that they after leaving police station they first
patrolled Hyderabad bypass then came beneath the Indus Bridge and
thereafter arrived at the place of occurrence whereas PW-2 deposed
otherwise that they after leaving Police Station first patrolled Naseem
Nagar Chowk, thereafter came at bypass Hyderabad and then arrived
at place of occurrence. PW-1 shown the distance in between Police
Station and that of the place of wardat as three kilometers whereas
PW-2 introduced this distance as one kilometer. PW-1 in his
examination in chief deposed that finding no private persons available,
he appointed ASI Abdul Hadi and HC Ali Ahmed as mashirs whereas he
in his cross negated his like version by deposing that he tried to
associate private persons who were found available when the memo
was being prepared but no one from them prepared to become the
mashir and that he did not take action against them as provided under
Section 187 PPC. Provision of Section 103 Cr.P.C. is mandatory in
nature. Its wisdom is to show fairness and bring transparency while
making arrest of accused and effect recovery from him/them. In this
case the complainant taken two pleas one that he did not find private
persons available, therefore, he appointed his subordinate as mashirs
whereas his second plea taken by him in his cross speaks otherwise
that private persons were available but they refused to assist him and
he did not take action against them as provided under Section 187
PPC. Thus, his like explanation is neither forceful nor valid one.
Reliance in this regard is placed upon case law reported as 2019 YLR
422 Sindh [YAMEEN VS. THE STATE]. PW-1 deposed that they arrived at
place of occurrence at about 2150 hours, 10 minutes time was
consumed in the encounter and thereafter 40 minutes time was
consumed in completing codal formalities at spot. PW-2 who removed
the custody of accused deposed that at about 2240 hours he left place
of occurrence to Civil Hospital and he arrived inside the Hospital with
accused at about 2305 hours. This PW, however, shown his ignorance
that per medical certificate the accused was handed over to Doctor for
treatment at about 2220 hours. It is matter of record that accused in
his statement produced Final Medicolegal Certificate at Ex.7/A which
shows the time of admission of the accused inside the Hospital as
10:20 P.M. If it is so; the entire exercise regarding the arrest of
accused and recovery from him at place of occurrence, sealing of the
property and preparation of memo at the shown place appears to be
doubtful. As to recovery of pistol PW-1 deposed that the pistol was
without number and
-4-

complete of gun metallic black colour but he watching the pistol

deposed that its upper side appears to be of steel white colour while its
lower side is of gun metallic colour. Yet to this aspect of the matter
PW-2 deposed otherwise that the pistol recovered was complete of
black colour with black strips to its butt. However, he watching the
pistol deposed that it is not of complete black colour. PW-2 shown the
boundaries of place of wardat as the Fasadi canal was facing from its
eastern side, Abdullah Garden was facing from its western side,
Soomra Villages were facing from its southern side and Keeria village
was facing from its northern side whereas PW-3 deposed otherwise
that place of occurrence was having boundaries as an open plot where
housing scheme was launched from its northern side, same was the
position from its southern side, Abdullah Garden was facing from its
eastern side and from its western side village of Bachal Soomro was
facing. To my opinion prosecution has miserably failed to prove its
case against the accused beyond shadow of doubt because multiple
circumstances are not necessarily required to create doubt into the
guilt of accused but even single circumstance creating doubt, entitles
the accused extending him benefit of doubt. In addition to this, there
are other inconsistent statements appearing in the statement of
prosecution witnesses but those are unnecessary to be discussed
specially in view of above discussion. To my view, the prosecution has
failed to prove the point under discussion, therefore, same is answered
in negative.
POINT NO.II
11. In view of the aforementioned appraisal of evidence, I am
of the humble view that the prosecution has miserably failed to bring
home the charge against the accused beyond any shadow of
reasonable doubt, hence, accused Abdul Ghafoor S/o Muhammad
Ayoub Chandio is given benefit of doubt and stands acquitted of the
charge U/s 265-H(i) Cr.P.C. He is produced in custody, he is remanded
to custody with directions to Jail Superintendent to release him
forthwith, if he is not required in any other custody case/crime.
Pronounced in open Court this 24th of June 2019.

(MUHAMMAD FAZIL BOHIO)

 VITH ADDL. SESSIONS JUDGE,
HYDERABAD.
CASE PROPERTY ORDER U/S 517 CR.P.C
The case property shown in the charge sheet viz. one 30-
Bore TT pistol without number alongwith empty magazine may be
disposed of according to law after expiry of appeal period.
Dated this 24th of June, 2019.

(MUHAMMAD FAZIL BOHIO)

VITH ADDL. SESSIONS JUDGE,
HYDERABAD.