NAZIR AHMAD And Another vs MUHAMMAD TAHIR And Another

1. This civil revision has arisen out of a suit for pre-emption brought by the petitioners, Nazir Ahmad and another, against the respondents, Muhammad Tahir and another. Plaintiff the suit was rejected by the Civil Judge, Ferozewala, District Sheikhupura on the ground that Zar-e-Panjam (1/5th of the ostensible sale price) was not deposited by the petitioners in time. Order of the learned Civil Judge in this regard was challenged by the petitioners by taking appeal before the District Judge, Sheikhupura. View expressed by the learned District Judge was that as proper court- fee had not been paid on the memorandum of appeal, technically speaking there was no appeal before him. The petitioners have, therefore, come up in revision to this Court.

2. It was objected by learned counsel for the respondent that the revision suffered from the defect of laches and was, therefore, liable to be dismissed on that ground. In reply, it was submitted by learned counsel for the petitioners that in the first instance the revision was filed by him on 21st May, 1989 when it was returned to him for removing certain objections. It was re-filed by him on 16th October, 1990 after doing the needful. Judgment and decree under revision were passed by the learned District Judge on 20th February, 1989. IT. Would, therefore, follow that initially the revision was filed within 90 days of the passing of the judgment and decree under challenge and thus there was no delay on the part of the petitioners in presenting the civil revision. No doubt, he took some months to remove the objections but that, to my mind, is not a sound reason for non- suiting the petitioners. No period of limitation has been prescribed by law for filing a civil revision. It is also the policy of law that matters before the Court should be decided on merits and not on the basis of technicalities. In the circumstances, I find no force in the plea of laches.

3. . As for the valuation of the appeal, established law is to the effect that I if the valuation fixed for the purposes of trial Court is not altered by the trial Court, that valuation continues to be valuation for the purpose of the appellate Court also;.But if the valuation is changed by the trial Court then the valuation so changed is to be treated as valuation for the purpose of the appellate forum as well. Mumtaz Begum v. Ch. Zulfiqar Ali PLD 1960 (W.P.) Lahore 1088 and Muqaffab Khan v.

2. Muhammad Anwar Khan and 10 others PLD 1964 (W.P.) Peshawar 228 are some of the several precedent cases in point. Admittedly, in the instant case, valuation fimed by the petitioners (plaintiffs) for the sake of the trial Court was not modified by that learned Court. Therefore, for the purposel of the appeal the same valuation had to be adhered to. This is exactly what the petitioners had done. The learned District Judge could not~ therefore,,take exception to the valuation fixed by the petitioners for the purpose of thel appeal. In this view of the matter, judgment and decree passed by the learned District Judge are not sustainable and call for interference by this Court in exercise of its revisional jurisdiction. .4. Resultantly, this civil revision is accepted, judgment and decree passed by the learned District.

3. Judge are set aside and the appeal remanded to him with. The direction that he shall re-decide the same on merits and in accordance with law. Parties are left to bear their own costs.

4. M.BA/N-,32/L PLD 1992 Lahore 91 Before Falak Sher, J THE STATE--Petitioner versus AZIZ KHAN--Respondent Criminal Revision No.154/13 of i991, decided on 15th December, 1991

(a) Penal Code (XLV of 1860) -- ----S. 279/337/304-A --- Criminal Procedure Code (V of 1898), S.439 --- Death caused by rash and * neyigent driving by accused --- Sentence --- Recourse to the theory of "sentence already undergone" by the Appellate Court deprecated by High Court in the circumstances of the case --- High Court, in suo motu revisional jurisdiction enhanced the sentence of accused.

5. Recourse to the theory of "sentence already undergone" on the facts and circumstances of the case has outrageously undermined the punitive and deterrent aspect of criminal administration of justice as a patent demonstration of judicial perversity culminating into miscarriage of justice tending to promote licencing of Highway assassinations by public carriers which is alarming on the increase with utter disregard for the human life; consequently, accused's sentence was enhanced to three years' R.I. [p. 921 A

(b) Sentence- ---- Recourse to the theory of "sentence already undergone" was deprecated by High Court in the circumstances of the case---High Court in suo motu revisional jurisdiction enhanced sentence of accused. [p.- 921 A Kh. Muhammad I Fayyaz for the State.

6. Muhammad Farooq Kiani for Respondent.

7. Date of hearing: 15th December, 1991,

JUDGMENT

8. Perusal of the judgment of learned Additional Sessions Judge, Attock of 7-9-1991 delivered in Criminal Appeal No.28/91, under supervisory Constitutional jurisdiction revealed that the respondent, having been convicted and sentenced by the trial Magistrate on 27-2-1991 in the case registered vide FIR No.187 of 30-9-1987 under section 279/337/304-A. P.P.C. At Police Station Hassan Abdal to imprisonment of one year R.I. With a fine of Rs3,000 for causing death of Niaz Muhammad through rash and negligent driving of bus No. AJK-A/7785, on appeal without contesting the conviction confined his submission to the reduction of sentence which was allowed and the sentence of imprisonment was reduced to already undergone viz., 13 days, ex facie resulting into miscarriage of justice; consequently, in exercise of suo motu revisional jurisdiction notice was issued to the respondent to show cause why the sentence should not be enhanced; during the course of hearing whereof his learned counsel submitted that the respondent did not record any statement before the appellate Court for not contesting the conviction and the sentence already undergone coupled with the agony of protracted trial has sufficiently met the interests of justice, with which I am not persuaded; the first contention seems to have been advanced in oblivion of the fact that the respondent being admittedly the beneficiary of the impugned order never questioned its legality thus is a convenient afterthought and merits to be ignored with the contempt it deserves. Recourse to the theory of already undergone on the facts and circumstances of the case has outrageously undermined the punitive and deterrent aspect of criminal administration of justice as a patent demonstration of judicial perversity culminating into miscarriage of justice tending to promote licensing of Highway assessinations by public carriers which is alarmingly on the increase with utter disregard for the human life; consequently, respondent's sentence is enhanced to three years' R.I. He is present in Court, should be taken into custody for serving out the outstanding sentence without availing of the benefit contemplated by section 382-B, Cr.P.C.

9. M.B.A./S-59/1, Sentence enhanced.