ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Revision Application No.9 of 2008
11-3-2008
Mr. Liaquat Ali Hamid, Advocate alongwith Applicant Ejaz Ahmed
Mr. S. Abid Shirazi, Advocate alongwith Respondent No.1 Riaz Ahmed
Mst. Zareen Saba, eldest sister of Applicant and Respondent No.1 present in person
This is a dispute between the family members of legal heirs of late Nisar Ahmed Khan. There are concurrent findings of the Courts below in favour of Respondent No.1, Riaz Ahmed and Shakeel Ahmed. The learned III Senior Civil Judge, Karachi (East), by order dated 23-12-2005 has decreed Suit No.1248 of 1999 on admission made by the Applicant/defendant in the written statement. The relevant portion of the order is reproduced hereunder:-
"Before proceeding further, the relevant paras of written statement filed by the defendant are reproduced here as under for the sake of brevity.
04. That the contents of para No.4 of the plaint are partially admitted and partially denied.
It is submitted that as the plots of Gabool Town are not given through allotment/lease deed, therefore, the same could not gifted out or transferred. The defendant has offered to give said 100 sq.yds. land of Gabool Town Plots.
05. That regarding Para 5 of plaint it is submitted that the plaintiff have made misleading and version of incorrect facts. It is submitted that the 1/3rd share gift in my name and was made with joint consent/decision and the plaintiff is/are illegally making construction. The portion of defendant was his legal right and he is ready to give possession of 100 yards land of Gabool Town Plots.
06. That the contents of Para No.6 of the plaint are denied being false and mis-leading it is submitted that the defendant did not violate the mutual settlement and the land of Gabool Town was not mutated, leased and can not be gifted illegally. The defendant is ready to deliver the possession to the plaintiffs i.e. 100 sq.yds. each.
Apart from above the defendant has raised same objections and pleas in the counter affidavit of instant application which do not come in the way of his application. From the perusal of record and written statement it clearly reflects that the defendant has admittedly the claim of the plaintiff in above Paras as a whole in the written statement and there is no other ground to discard the written statement and counter affidavit filed by the defendant. The offer with free conscious of mind amounts the acceptance, until and unless the malafide or other ground is not raised. Hence, the above paras of written statement of defendant already shows his acceptance and admission of claim of plaintiff in respect of 100 square yards of plot as claimed. Under the circumstances and in view of case law coupled with clear admission of the defendant in his written statement dated 9-2-2000 and counter affidavit dated 12-11-2005, I am of the humbly view that the case of the plaintiff stands proved and the suit is decreed upto the extent of possession of 100 square yards from factory alongwith mutation. There will be no order as to cost."
Being aggrieved by the order of the trial Court, the Applicant preferred Civil Appeal No.4 of 2007 but the leaned 1st Additional District and Sessions Judge, Karachi (East), was pleased to uphold the order of the trial Court. Now, this Revision Application has been filed by Ejaz Ahmed against the concurrent findings of both the Courts below with a prayer to set-aside the judgments impugned herein.
I have heard the learned Counsel, the Applicant, the Respondent No.1 as well as Mst. Zareen Saba, the eldest sister of both the brothers. Mst. Zareen Saba states that when Ejaz Ahmed was in Saudi Arabia, Shakeel Ahmed and Riaz Ahmed clandestinely got the house of their mother transferred in their names. Thereafter objection was raised by other family members and it was amicably resolved between the family members that Shakeel Ahmed and Riaz Ahmed will transfer the house in the name of all legal heirs and in return Respondent No.1, Riaz Ahmed will get a plot of 100 square yards in the industrial area and that will be within the factory of Applicant Ejaz Ahmed. The agreement arrived at between the family members is admitted and there is no dispute about it. However, since the agreed plot of 100 square yards will be near the factory premises of Applicant Ejaz Ahmed, there is imminent apprehension that dispute will continue between the two real brothers upon running the factory. Therefore, it has been amicably resolved that Applicant Ejaz Ahmed will purchase the plot of 100 square yards of equal value as that of his plot, in the same vicinity and will give it to Respondent No.1. Applicant Ejaz Ahmed and Respondent No.1 Riaz Ahmed, present in court, agree to this proposal. Mst. Zareen Saba, who has just appeared today to help both the brothers to resolve the dispute, also agrees to this proposal.
By consent of the parties and their Advocates present, it is ordered that Applicant Ejaz Ahmed will purchase a plot of 100 square yards of equal value as that of his plot in the same vicinity, where his factory is located and shall give it to Respondent No.1, Riaz Ahmed, on ownership basis. In case of failure of Ejaz Ahmed to purchase, transfer and handover the plot of 100 square yards within three months to the Respondent No.1, it will be opened for the Respondent No.1, Riaz Ahmed to pursue the Execution Application.
With above order, the Revision Application alongwith the listed Application is dismissed with no order as to costs.
Judge
ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Cr. Jail Appeal No.165 of 2007
For Regular Hearing
11-3-2008
Appellant Muhammad Ali alias Papoo present in custody.
Mr. Fazalur Rehman Awan, Advocate for the State
Convict Muhammad Ali alias Papoo is present in Court and has filed this Jail Appeal against his conviction and sentence awarded by the learned VII Additional Sessions Judge (South), Karachi, in Sessions Case No.827 of 2004.
The facts of the case are that on 14-12-2004 complainant Dr. Hafiz Jamil Ahmed son of Nizamuddin has lodged FIR at Risala Police station, Karachi, stating therein that on that date at about 11.15 A.M. he went to the 1st Women Bank situated at Ayesha Manzil, Karachi, and had withdrawn Rs.60,000/- from the Bank. While he was returning in his car bearing registration No.M-8645 and reached near the eye ward of Civil Hospital, Karachi, all of a sudden one person came towards him and on the gun point demanded cash from him. The accomplice of that accused was present on motorcycle, which was in start condition. The complainant resisted and overpowered the said accused and had handed him over to the Police mobile of Risala Police Station, which had reached there on the spot. Upon inquiry, the accused has disclosed his name as Muhammad Ali alias Papoo son of Faiz Muhammad. The trial Court after recording evidence has convicted the accused/appellant under Section 398 PPC and sentenced him to undergo Imprisonment for seven years and fine of Rs.50,000/-.
The learned Counsel for the State, Mr. Fazalur Rehman Awan, Advocate, states that from the facts of the case the offence falls under Section 393 PPC and not under Section 398 PPC.
The convict is present in Court. He repents and promises with the Court that he will not repeat the offence in future. He also submits that he is a married man, having wife and children and prays for mercy. The convict/appellant has been continuously in custody for last about three years and three months. Keeping in view the repent-ness and regrets for committing the offence shown by the convict/appellant and his seeking forgiveness from the All Mighty Allah, I hereby reduce his sentence to the one already undergone by him. The amount of fine is reduced from Rs.50,000/- to Rs.2,000/- and in default of payment of fine he will suffer further SI for fifteen days. With this modification in the conviction, sentence and fine, the Appeal dismissed.
Judge
ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Cr. Jail Appeal No.134 of 2007
For Regular Hearing
11-3-2008
Mr. Abdul Salam Memon, Advocate for Appellant.
Mr. Fazalur Rehman Awan, Advocate for the State
In Cr. Jail Appeal No. 165 of 2007 and sentence of co-accused Muhammad Ali alias Papoo has been reduced to the one already undergone. On the rule of consistency, the sentence of Appellant Syed Hamid Ali is also reduced to the one already undergone. The amount of fine is reduced from Rs.50,000/- to Rs.2000/- and in default whereof the Appellant shall suffer further SI for fifteen days. Cr. Appeal No.134 of 2007 is also dismissed with above modification in the sentence and amount of fine.
Judge