CLC 2025 Judgments

2025 C L C 585

[Board of Revenue, Punjab]

Before Saqib Manan, Member (Judicial-VII)

SAJJAD ALI and others ---Petitioners

Versus

Rana ISLAM DIN ---Respondent

R.O.Rs. Nos. 2623 to 2625 of 2023, decided on 5th December, 2024.

(a) Punjab Land Revenue Act (XVII of 1967)---

----Ss. 117 & 3 [as amended vide Punjab Land Revenue (Amendment) Act (XVIII of 2019)]---Punjab Land Revenue Rules, 1968, Rr. 67-A & 67-B---Demarcation---Nature of land---Agricultural or commercial/residential status---Forum of adjudication---Application for the demarcation of land was filed with the contention that Burjis of the land-in-question had been destroyed, which was a cause of quarrel between the land owners, however, the demarcation report was assailed before the Assistant Commissioner---Assistant Commissioner set-aside the demarcation report with the observation that the land-in-question had become residential/commercial and demarcation of such land fell within the ambit of Civil Court---Appeals filed against order of the Assistant Commissioner were accepted by the Additional Commissioner (Revenue), while setting aside the order of Assistant Commissioner, upholding the demarcation report---Petitioners assailed said order passed by the Additional Commissioner (Revenue) before the Board of Revenue---Question whether or not a Revenue Officer is authorized to carry out demarcation of land which has attained commercial/residential status over the last many years---Held that S. 3 of Land Revenue Act, 1967, ('the Act 1967') was amended vide Act XVIII of 2019---Prior to said amendment, the next of S. 3 of the Act 1967 stated that "Nothing in this Act applies to land which is occupied as site of a town or village and not assessed to Land Revenue"---"Land occupied as the site of the town or village" was excluded from the operation of the Act 1967 vide said amendment---However, after the said amendment it was provided S. 3 of the Act 1967 that: "The provisions of this Act relating to assessment and collection of land revenue shall not be applicable to an area notified by the Board of Revenue"---Admittedly, the land-in-question was located in rural area having partly agricultural and partly non-agricultural character---Thus, the Land Revenue Act, 1967 was applicable to the land-in-question since it had not been notified by the Board of Revenue under S. 3 of the Act 1967, therefore, a Revenue Officer was authorized to carry out proceedings in the present case, as spelled out in S. 117 of Land Revenue Act, 1967; to said extent the findings of the Additional Commissioner were held to be correct---However, while dealing with the procedure for demarcation of land, the procedural law had not been followed in letter and spirit as per provisions of Rr. 67-A & 67-B of Land Revenue Rules, 1968---Member Board of Revenue set-aside both the orders passed by the Assistant Commissioner and Additional Commissioner as well as demarcation proceedings and remanded the matters directing the concerned Revenue Officer to carry out the demarcation in accordance with law within 90 days---Revision petitions were partially allowed accordingly.

(b) Punjab Land Revenue Act (XVII of 1967)---

----S. 117---Punjab Land Revenue Rules, 1968, Rr. 67-A & 67-B---Demarcation of land---Procedure, following of---Revenue Officer---Powers and responsibilities---Revenue Officer is bound to adopt the procedure of R. 67-A of the Land Revenue Rules, 1968, when proceedings under S. 117 of Land Revenue Act, 1967, are to be conducted---What ought to be done must be done according to law---Member Board of Revenue set-aside both the orders passed by the Assistant Commissioner and Additional Commissioner as well as demarcation proceedings and remanded the matters directing the concerned Revenue Officer to carry out the demarcation in accordance with law within 90 days---Revision petitions were partially allowed accordingly.

Clerk of Counsel for Petitioners.

2025 C L C 1153

[Board of Revenue, Punjab]

Before Saqib Manan, Member (Judicial-VII)

MOAZZAM IQBAL ---Petitioner

Versus

The STATE / Mst. SAMAN JAVAID and others ---Respondents

R.O.R. No. 1456 of 2023, decided on 9th January, 2025.

Muslim Family Law Ordinance (VIII of 1961)---

----S. 4---Inheritance---Daughter of Pre-deceased son---Share of inheritance---Inheritance "per capita" or inheritance "per stripes"---While approving the inheritance mutation-in-question, the Revenue Officer transferred the whole share of pre-deceased son to his daughter (granddaughter of deceased/predecessor)---Whether said granddaughter was entitled to half share (1/2) or full share (7/8) of her pre-deceased father?---Held, that mutation-in-question was passed to decide the inheritance of predecessor of the parties while at the time of his (predecessor') death, two of his children (one son and one daughter) had already died; hence S. 4 of the Muslim Family Law Ordinance, 1961 ('the Ordinance 1961') was attracted---Section 4 of Muslim Family Law Ordinance (VIII of 1961) lays down the principles for succession of pre-deceased person---Principle of succession in such a case is not inheritance "per capita" rather it is inheritance "per stripes" i.e. in accordance with the root to which the grandchild belongs; which means that, in the present case the grand daughter would only get the share to which she was entitled had her father not died before her grandfather---The provision of S. 4 of the Ordinance, 1961 is a special provision which should not be implemented to increase the share of grandchild beyond normal or decrease the shares of other descendants---In the present case, according to Shajra Nasab, pre-deceased son had no son and he had only one daughter---It was also admitted that the parties were followers of Sunni Law---Therefore, daughter of the said pre-deceased son had to inherit only her due share out of legacy of the deceased /predecessor (grandfather) in place of her father i.e. ½, but it was not done through the inheritance mutation-in-question and whole share of pre-deceased son was given to his daughter---Thus, Addl. Commissioner Revenue while passing the impugned order ignored such important fact of the present case and arrived at a wrong and unfair conclusion which made the impugned order defective in the eyes of law---Member, Board of Revenue set aside the impugned order passed by the Addl. Commissioner (Revenue) and the concerned Revenue Officer was directed to re-enter the mutation of inheritance of deceased (predecessor /grandfather) in accordance with the principle that the granddaughter was entitled to only ½ share of the property which her father would have been entitled to at the time of death of deceased (predecessor /grandfather)---Revision petition was accepted accordingly.

Qutub-u-Din v. Zubaida 2009 CLC 1273; Allah Dewaya v. Hussain 2007 CLC 1787; Qabal Jan v. Habab Jan 1992 SCMR 935; Hasan Aziz v. Meraj 2021 CLC 1821 and Saira Yosaf v. Sher 2021 CLC 1593 ref.

Clerk Counsel for Petitioner.

2025 C L C 1447

[Board of Revenue, Punjab]

Before Zahoor Hussain, Member (Judicial-III)

MUHAMMAD PERVAIZ SULTAN ---Petitioner

Versus

MUHAMMAD SHAFIQ and others ---Respondents

R.O.R. No. 1507 of 2012, decided on 9th April, 2025.

(a) Punjab Land Revenue Rules, 1968---

----Rr. 17 & 18(2)(c)---Village Headman (lambardar), appointment of---Scope---Petitioner (erstwhile lambardar wanting his son to be new lambardar) challenged appointment of the respondent as new lambardar replacing him (petitioner)---Validity---Record revealed that the very credentials of the petitioner remained under question throughout the proceedings as he (petitioner) had presented a document dated 08.02.1983, showing his appointment as sarbarah lambardar, however, he could never produce any certified copy of the same---Moreover, in constitution of the School Council Committee, he (petitioner), succeeded in inserting his name as member by tampering of the record, with the connivance of a teacher in the School---Record revealed that the petitioner was an encroacher over State land, and was also involved in different cases and as a consequence, three FIRs had been registered against him---In one of the said FIRs the petitioner had been acquitted whereas, rest of the two were still pending for decision---Member-Board of Revenue upheld the impugned orders, appointing the respondent as lambardar (Village Headman), passed by the District Collector as well as the Commissioner---Revision petition filed by erstwhile lamardar, being merit-less, was dismissed in circumstances.

(b) Punjab Land Revenue Rules, 1968---

----Rr. 17 & 18(2)(c)---Appointment of new Village Headman (lambardar)---Old age of existing lambardar---Effect---Petitioner (erstwhile lambardar wanting his son to be new lambardar) challenged appointment of the respondent as new lambardar replacing him (petitioner)---Validity---Petitioner was an old man of more than of 70 years of age with poor health and was not in a position to perform duties of lambardar---Despite having been asked/called by (this) Court to appear in-person before Court, he could not appear in person---Statement of the petitioner recorded before the concerned District Collector in a case for appointment of his son revealed that he (petitioner), while expressing his wish for appointment of his son as his sarbarah lambardar, showed his unavailability and inability to work as lambardar owing to his poor health and old age---Said very statement, being acceptance of petitioner's poor health, itself attracted the provision of Rule 18(2)(c) of Land Revenue Rules, 1968 under Dismissal of headman---Member-Board of Revenue upheld the impugned orders, appointing the respondent as lambardar (Village Headman), passed by the District Collector as well as the Commissioner---Revision petition filed by erstwhile lamardar, being merit-less, was dismissed in circumstances.

(c) Punjab Land Revenue Rules, 1968---

----Rr. 17 & 22---Pakistan Legal Practitioners and Bar Councils Rules, 1976, R. 175---Village Headman (lambardar), appointment of---Candidature of an advocate---Scope---Petitioner (erstwhile lambardar wanting his son to be new lambardar) challenged appointment of the respondent as new lambardar replacing him (petitioner)---Argument against new appointment was that the respondent, being a practicing lawyer, was disqualified to be appointed as the lambardar as per Section 175 of the Pakistan Legal Practitioners and Bar Councils Rules, 1976 ('the Rules 1976')---Validity---From provisions of Rule 175 of the Rules 1976, it is clear that the bar contemplated by the said Rule (175) pertains to certain professions, business and service etc. as are understood in their ordinary and technical/legal sense---However, the office of lambardar (Headman) is neither a profession or business nor service etc. but it is an administrative post of its own kind by virtue whereof a suitable person in the Chak is saddled with certain duties and responsibilities attached to such post as are enumerated, inter alia, in Rule 22 of the Land Revenue Rules, 1968---In the present day, educational edge of a candidate is quite a relevant factor which ,when considered with other qualifications of a candidate, must be given due weightage---Therefore, it is misconceived that a practicing lawyer cannot be appointed as a lambardar---Member-Board of Revenue upheld he impugned orders, appointing the respondent as lambardar (Village Headman), passed by the District Collector as well as the Commissioner---Revision petition filed by erstwhile lamardar, being merit-less, was dismissed in circumstances.

CPL No. 1363-L of 2009 ref.

(d) Punjab Land Revenue Rules, 1968---

----Rr. 17 & 22---Appointment of Village Headman (lambardar)---Rule of primogeniture and/or hereditary---Scope---Petitioner (erstwhile lambardar wanting his son to be new lambardar) challenged appointment of the respondent as new lambardar replacing him (petitioner)---Validity---In the present case, as per written assertion of the petitioner, since 1926 i.e. nearing a century, the post was being held by a single family of the Patti---The appointment of lambardar is essentially an administrative matter and there is no vested right of any person to lay claim to said effect---Therefore, it is left to the revenue functionaries to appoint the most suitable person as lambardar---The Choice of the District Collector should be given preference unless it is perverse---The duties of headman includes the collection of land revenue and other sums recoverable as arrears of land revenue, implementation of orders received from the Collector, furnishing of the information or to assist the officers of the Government and revenue field staff in discharging of their duties---The nature of said duties requires that the lambardar should be a person having social and human relationship with the population of the said village---The lambardar should also be a man of character---In the present case, the respondent was chosen by the District Collector and the Commissioner through the well-reasoned (impugned) orders---Respondent was more educated and owned more landed property than the petitioner and was quite fit and mature person aged 51-years---Respondent was permanent resident of concerned village which was evident from his CNIC, domicile, and voter list---Respondent was an active social worker and had been working as member and as head of different local government committees---Member-Board of Revenue upheld the impugned orders, appointing the respondent as lambardar (Village Headman), passed by the District Collector as well as the Commissioner---Revision petition filed by erstwhile lambardar, being merit-less, was dismissed in circumstances.

PLD 1999 SC 484, Writ Petition No. 7093 of 2014, Civil Petition No. 1363-L of 2009; 2010 CLC 1418 Lahore; 2014 SCMR 164; 1994 MLD 1480 Lahore; 2010 CLC 900 Lahore; 2003 YLR 1960 Lahore; 2008 CLC 1141 Lahore; PLD 1974 Rev. 82; 1992 CLC 1456 Lahore; Board of Revenue Punjab Lahore 2013 CLC 667; 2004 YLR 2543 Lahore; Board of Revenue Punjab 2010 CLC 1190; PLD 1959 W.P. (Rev.) 96; 2005 CLC 1228; PLD 1966 W.P. (Rev.) 76; PLD 2010 Tr.C. Revenue 100; 1990 CLC 1983 Board of Revenue Punjab; 2001 CLC 1773; 2007 SCMR 1965; W.P. No. 26121 of 2011; 1999 MLD 2865 Board of Revenue Punjab; PLD 1963 W.P. (Rev.) 66; PLD 1966 W.P. (Rev.) 159; PLD 1966 W.P. (Rev.) 143 and PLD 1957 P.W. (Rev.) 52 ref.

Ch. Iqbal Ahmad Khan for Petitioner.

2025 C L C 1614

[Board of Revenue, Punjab]

Before Saqib Manan, Member (Judicial-VII)

GHOUS MUHAMMAD ---Petitioner

Versus

MUHAMMAD ZAFAR ULLAH KHAN and others ---Respondents

Review Petition No. 297 of 2023, decided on 14th April, 2025.

(a) Punjab Land Revenue Act (XVII of 1967)---

----S. 135---Partition proceedings---Merger /pooling (consolidation) of Khatas, matter of---Divergent judicial opinions / precedents---Interpretation of precedent(s)---Whether, contextual or rigid---Petitioners were owners in multiple (as many as four) Khatas---In order to partition their land, they requested for consolidation/merger/ pooling (اشتراك) of their Khatas; but the request of petitioners for consolidation/merger was not entertained and the mode of partition was finalized without consolidation of Khatas---The matter of consolidation/merger/ pooling (اشتراك) of the Khatas of the petitioners had gone all the way up to level of the Member, Board of Revenue, Punjab---The Courts below relied heavily on the judgment in case titled Ibrar v. Raheem Dad (2015 CLC 546), where the Senior Member, Board of Revenue, Punjab, opined that "each joint khata is a separate revenue unit and any co-sharer therein may apply for independent partition under S. 135 of the Punjab Land Revenue Act, 1967"---Said interpretation was used to invalidate the earlier reasoning given in case titled Yasin v. Jan Muhammad (2005 CLC 1944), where the Member Judicial, Board of Revenue, Punjab, had permitted the pooling of five joint khatas in the interest of achieving a just and equitable partition"---Held: It is evident that divergent judicial opinions have existed at the highest level of the revenue judiciary concerning the permissibility of khata merger---Said judicial dissonance suggests that matter remains interpretatively open and calls for contextual rather than rigid interpretation of precedents---In the present case, the petitioner has raised a compelling practical concern; which confirms that all co-sharers of the impugned khatas have voluntarily expressed their explicit and uncontested consent to merge and pool their holdings---No party has raised any legal or factual objection---Imposing an unqualified prohibition in these circumstances is not only inequitable but also counterproductive to the objectives of just partition---Revenue jurisprudence must evolve to accommodate both legal and administrative realism---The function of judicial orders within revenue administration is not to enforce rigid literalism, but to harmonize legal principles with fairness, efficiency and public convenience---Where the khatas lie in the same estate, ownership is traceable, shares are reconcilable, and mutual consent exists, refusing pooling becomes not a matter of law, but a denial of equitable justice---Accordingly, while the decision reported in Ibrar v. Raheem Dad (2015 CLC 546) remains a valid precedent, its application must be understood as context-specific; it should not be interpreted as laying down a universal and permanent embargo against merger or pooling---Legal principles must adapt to the facts at hand and judicial discipline demands flexibility when required to prevent manifest hardship---A complete ban on the same should not be allowed to continue but ban has been imposed on consolidation of holdings by a judicial order---Thus, subject to certain safeguards, pooling or merger of khatas shall be deemed a permissible administrative and judicial act in appropriate cases---Member Judicial, Board of Revenue, Punjab, set-aside the impugned order, maintaining orders/judgments of Courts below, passed by the predecessor of this court; and ordered the Khatas-in-question to be merged / consolidated; and the case was remanded to the competent Revenue Officer for fresh proceedings---Review petition was accepted accordingly.

Ibrar v. Raheem Dad (ROR No. 1173/2013) 2015 CLC 546 and Yasin v. Jan Muhammad (ROR No. 2562/1999) 2005 CLC 1944 ref.

(b) Punjab Land Revenue Act (XVII of 1967)---

----Chap. XI, S. 135---Letter No. PMU(BOR)/D-O/66/2014 dated 27.02.2014 issued by the Project Management Unit of the Board of Revenue, Punjab---Partition proceedings---Merger/pooling (consolidation) of Khatas, seeking of---Permissibility---Petitioners were owners in multiple (as many as four ) Khatas---In order to partition their land, they requested for consolidation/merger/ pooling (اشتراك) of their Khatas---But the request of petitioners for consolidation/merger was not entertained and the mode of partition was finalized without consolidation of Khatas---The matter of consolidation/merger/ pooling (اشتراك) of the Khatas of the petitioners had gone all the way up to level of the Member, Board of Revenue, Punjab---The Courts below, while relying on Letter No. 2014/66/D-0/BOR/PMU dated 27.02.2014 issued by Project Management Unit of Board of Revenue, Punjab, held that consolidation of Khatas cannot be permitted since every Khata is a separate entity and must be partitioned separately---Question as to whether or not the consolidation of khatas is permitted under the Land Revenue Act, 1967?---Held: In the present case, the petitioner has raised a compelling practical concern; which confirms that all co-sharers of the impugned khatas have voluntarily expressed their explicit and uncontested consent to merge and pool their holdings---No party has raised any legal or factual objection---Imposing an unqualified prohibition in these circumstances is not only inequitable but also counterproductive to the objectives of just partition---A blanket ban creates procedural deadlocks, forcing repetitive and technical proceedings, and defeats the fundamental aim of revenue administration, which is to reflect accurate and agreed-upon ownership and possession --- The principle "ubi jus ibi remedium-where there is a right, there must be a remedy" clearly supports the petitioner's case---Ownership rights of co-sharers in the land are undisputed, yet the denial of merger or pooling, despite mutual agreement, effectively deprives them of a practicable remedy---When procedural obstacles obstruct the enforcement of rightful possession or fair partition, the law must intervene to restore balance---The Punjab Land Revenue Act, 1967, while detailed in its regulation of partition under Chap. XI, remains silent on the subject of merger or pooling of khatas---Said legislative silence must not be misconstrued as a prohibition---The Latin maxim "Quod lex non prohibet, licitum est" (which the law does not prohibit, it permits) clearly applies---Thus, while clearly the Land Revenue Act, 1967, is silent in regard to consolidation of khatas/khewats, yet a complete ban on the same should not be allowed to continue---Subject to certain safeguards, pooling or merger of khatas shall be deemed a permissible administrative and judicial act in appropriate cases---Member Judicial, Board of Revenue, Punjab, set-aside the impugned order, maintaining orders/judgments of Courts below, passed by the predecessor of this court; and ordered the Khatas-in-question to be merged / consolidated; and the case was remanded to the competent Revenue Officer for fresh proceedings---Review petition was accepted accordingly.

(c) Punjab Land Revenue Act (XVII of 1967)---

----Chap. XI, S. 135---Partition proceedings---Merger/pooling (consolidation) of Khatas, matter of---Procedural safeguards---In order to ensure transparency and prevent misuse of the power to merge or pool khatas/khewats, certain procedural safeguards are mandatory:- firstly, all khatas proposed for pooling must be situated within the same revenue estate; secondly, the respective shares must be either identical or reconcilable without prejudice to any party; thirdly, the District Collector or an officer senior to him must pass a reasoned judicial order after due verification of the record; lastly, no subordinate Revenue Officer or a Patwari or Qanungo shall be authorized to initiate or approve any such merger independently---Subject to said safeguards, pooling or merger of khatas shall be deemed a permissible administrative and judicial act in appropriate cases.

Raja Ahmad Nawaz for Petitioner.

2025 C L C 1775

[Board of Revenue, Punjab]

Before Babar Aman Babar, Member (Judicial-I)

MUHAMMAD TARIQ and 6 others ---Petitioners

Versus

MUHAMMAD IBRAHIM and others ---Respondents

R.O.R. No. 89 of 2025, decided on 5th August, 2025.

(a) Punjab Land Revenue Act (XVII of 1967)---

----S. 135---Partition---Entitlement and possession, consideration of---Petitioner (co-sharer) assailed order passed by the Additional Commissioner (Revenue) whereby a specific khasra number, indicated by the respondent (co-sharers), was excluded from his (respondent's) share and was included in the share of the petitioner ('khasra number-in-question')---Validity---Record revealed that the khasra number-in-question (the respondent wanted to be excluded from his share) remained under possession of the respondent, and father of the respondent, undeniably, had sold a piece from that land to Sui Northern Gas Pipelines Limited and got payment for that land---Thus, the khasra number-in-question could not be excluded from the share of the respondent and could not be included in the share of the petitioners---Respondents could not highlight any other infringement of their rights---Hence, the Additional Deputy Commissioner (Revenue) rightly rejected the appeal of the respondent and the Additional Commissioner (Revenue), Sahiwal Division, clearly wrapped up the whole proceedings by passing a stereotype order, without considering the record and facts---Member Board of Revenue set aside impugned order passed by the Additional Commissioner (Revenue); consequently, orders passed by the Additional Deputy Commissioner (Revenue) and Tehsildar were maintained---Revision petition was accepted, in circumstances.

(b) Punjab Land Revenue Act (XVII of 1967)---

----S. 135---Partition proceedings---Wandajat, constitution of---Specific objections to partition proceedings not pin-pointed---Appreciation of objections---Scope---Petitioners (co-sharers) assailed order passed by the Additional Commissioner (Revenue) whereby the concurrent findings of two Courts below were set-aside---Validity---The respondent was asked to specifically pin-point what his specific objection was on the partition proceedings but he failed---Merely claiming that objections were not appreciated by the Revenue Officer during partition proceedings was not a valid ground to remand the case unless it was proven to the Appellate or the Revisional Authorities that the objections were worthy of consideration and were tenable---Member Board of Revenue set aside impugned order passed by the Additional Commissioner (Revenue); consequently, orders passed by the Additional Deputy Commissioner (Revenue) and Tehsildar were maintained---Revision petition was accepted, in circumstances.

Qamar Ahmad Rana for Petitioners.

Aurangzeb Tarar for Respondents Nos. 1, 2, 3 and 6.

2025 C L C 47

[High Court (AJ&K)]

Before Chaudhary Khalid Rasheed, J

RASHEEDA BEGUM and 9 others---Appellants

Versus

RAUF SUBHANI and others---Resondents

Civil Appeals Nos. 370 and 371 of 2019, decided on 18th October, 2024.

(a) Qanun-e-Shahadat (10 of 1984)---

----Art. 79---Specific Relief Act (I of 1877), Ss. 42, 39 & 54---Suit for declaration, cancellation of documents and perpetual injunction---Document relied upon by party being deficient---Proof---Marginal witnesses, non-production of---Effect---Claim of the predecessor of appellants (original plaintiff) was that the mutation/gift deed and subsequent sale deed in favour of defendants were liable to be cancelled as suit-land was purchased by him in the year 1963 from their (defendants') father---Trial Court dismissed the suit filed by predecessor of appellants for want of proof whereas it decreed the counter suit filed by the respondents, and the District ( First Appellate) Court concurred with the findings of the Trial Court---Validity---Predecessor of appellants (being plaintiff) based his claim on a receipt having been exhibited by him ('Exhibited Receipt') , perusal of which (Exhibited Receipt) revealed that description of property was not mentioned in the same, that is, which of the land had been sold through the Exhibited Receipt---It was enjoined upon the plaintiff to produce the marginal witnesses of the Exhibited Receipt in order to prove the same under Art. 79 of the Qanun-e-Shahadat Order, 1984, or to mention the reasons that why the marginal witnesses of the receipt were unable to record their statements and if the marginal witnesses had died, it was necessary to bring on record the proof of their death or non-availability for recording their statements---But the plaintiff neither produced marginal witnesses of Exhibited Receipt nor mentioned any reason for their non-availability---Plaintiff also failed to produce the writer of the receipt, thus the Courts below were justified to observe that the plaintiff had failed to prove the execution of the document (Exhibited Receipt)---The witnesses having been produced by the plaintiff failed to depose that Exhibited Receipt was written in their presence, thus, they were hearsay witnesses who could not be relied upon---Even otherwise, said Exhibited Receipt revealed that the whole consideration amount was paid and the possession was handed over to the vendee and nothing was to be done in future, thus the same could be considered at the most as a defective sale which did not create any right---Even if it was an agreement to sell a declaration could not be granted---No illegality or infirmity having been noticed in the impugned judgments and decrees, Regular Second Appeal was dismissed , in circumstances.

(b) Registration Act (XVI of 1908)---

----S. 17(2)(v)---Specific Relief Act (I of 1877), Ss. 42, 39 & 54---Suit for declaration, cancellation of documents and perpetual injunction---Unregistered document---Effect---It was enjoined upon the plaintiff to get the sale deed from the vendor registered because under S. 17(2)(v) of the Registration Act any document having the value of 100 rupees and upwards to or in immovable property is compulsory to be registered---Thus, receipt exhibited by plaintiff being violative of law could not be relied upon---No illegality or infirmity having been noticed in the impugned judgments and decrees, Regular Second Appeal was dismissed, in circumstances.

(c) Specific Relief Act (I of 1877)---

----Ss. 42, 39 & 54---Suit for declaration, cancellation of documents and perpetual injunction---Limitation---Suit filed by plaintiff (predecessor of appellants) was time barred because the plaintiff filed the suit after about fifty years of alleged sale-receipt having been written, and he failed to explain plausible cause for filing the suit with such delay (of about fifty years)---No illegality or infirmity having been noticed in the impugned judgments and decrees dismissing the claim on the point of limitation, Regular Second Appeal was dismissed, in circumstances.

(d) Specific Relief Act (I of 1877)---

----Ss. 12, 42, 39 & 54---Suit for possession and suit for declaration, cancellation of documents and perpetual injunction filed separately---Possession, claim of---Claim of the predecessor of appellants (plaintiff) was that the mutation/gift deed and subsequent sale deed in favour of defendants were liable to be cancelled as suit-land was purchased by him in the year 1963 from their(defendants') father while respondent also filed a suit for possession against predecessor of appellants (herein) pleading that he was the owner of the land and defendant (predecessor of appellants) had forcibly occupied the same, thus, the sale-receipt relied upon by him(predecessor of appellants) was fake and fraudulent---Trial Court dismissed the suit filed by predecessor of appellants for want of proof whereas it decreed the counter suit filed by the respondent, and the District (First Appellate) Court concurred with the findings of the Trial Court---Validity---As far as the suit filed by respondent for possession of the land was concerned since the [predecessor of appellant (being plaintiff) [failed to prove the Exhibited Receipt, thus, the ownership of respondent was established and relevant mutation, gift deed and sale deed were maintained---In the revenue record, predecessor-in-interest of appellants was entered as possessor as Ghair Moroos who had not challenged the entries in the revenue record, so the Courts below were justified to decree the suit filed by respondent---No illegality or infirmity having been noticed in the impugned judgments and decrees, Regular Second Appeal was dismissed, in circumstances.

(e) Specific Relief Act (I of 1877)---

----S.9----Suit for possession of immovable property---Limitation---Respondent had claimed possession of the suit land on the basis of ownership, and a suit for possession on the basis of ownership can be filed at any time, thus, no limitation ran against plaintiff/respondent--- Hence, the judgments and decrees recorded by the Courts below were liable to be maintained---No illegality or infirmity having been noticed in the impugned judgments and decrees, Regular Second Appeal was dismissed, in circumstances.

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

----S. 100---Specific Relief Act (I of 1877), Ss. 42, 39 & 54---Suit for declaration, cancellation of documents and perpetual injunction---Findings of fact---Concurrent findings---Second appeal---Scope---Parties filed counter/separate suits claiming ownership of the suit property---Trial Court dismissed the suit filed by predecessor of appellants for want of proof, whereas it decreed the counter suit filed by the respondents, and the District/Appellate Court concurred with the findings of the Trial Court---Validity---Question whether the plaintiff now survived by appellants herein was the owner of land or whether the suit land was in the ownership of respondents, was a pure question of facts and both the Courts below had concurrently decided the same---Thus, the concurrent findings of facts could not be disturbed in Second Appeal unless some flagrant misreading, non-reading of evidence or violation of any settled law was pointed out---Appellants had failed to point out apparent violation of any settled law by the Courts below while passing the impugned concurrent judgments, thus the impugned judgment and decrees deserved to be maintained---No illegality or infirmity having been noticed in the impugned judgments and decrees, Regular Second Appeal was dismissed, in circumstances.

2022 SCR 416 ref.

Hafiz Fazal-ur-Rehman Dar for Appellants.

Chaudhry Khurram Manzoor for Respondents.

2025 C L C 223

[High Court (AJ&K)]

Before Chaudhary Khalid Rasheed, J

MUHAMMAD NAJEEB ---Petitioner

Versus

DISTRICT JUDGE MIRPUR, AZAD KASHMIR and others ---Respondents

Write Petitions Nos. 597 and 598 of 2019, decided on 18th October, 2024.

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

----O. XLI, R. 27---Production of documents at belated stage---Public documents---Trial Court allowed the party to produce documents at later stage of proceedings, which order was maintained by the District Court---Validity---If the documents intended to be produced are part of public record; have come from proper custody; there authenticity is beyond doubt, then the Court should exercise its discretion accepting the documents and such like documents shall not ordinarily be refused---In the present case, admittedly, the documents sought to be produced were public documents and were necessary for correct decision of the case because, undeniably, the petitioner produced some documents and in order to rebut the same the documents allowed by the Courts below to the respondents were necessary to be produced---No legal infirmity or lack of jurisdiction in the impugned orders was noticed---Documents allowed to be produced were necessary for just decision of the case Impugned orders required no indulgence by the High Court----Writ petitions were dismissed , in circumstances .

2009 CLC 1320 ref.

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

----O. XLI, R. 27 & O. XIII, Rr. 1, 2---Production of documents at belated stage---Public good cause---Trial Court allowed the party to produce documents at later stage of proceedings, which order was maintained by the District Court---Validity---Though the respondents-applicants had only mentioned that they might be allowed to produce documentary evidence for the sake of justice in their application, which could not be termed as good cause, however, the petitioner had not denied that the same were to be produced in order to rebut the documents produced by him( petitioner)---Hence, when the petitioner had been allowed to produce documents at belated stage, allowing the respondents to produce documents at later stage in order to rebut those documents produced by petitioner was quite justified---No legal infirmity or lack of jurisdiction in the impugned orders was noticed---Documents allowed to be produced were necessary for just decision of the case---Impugned orders required no indulgence by the High Court---Writ petition was dismissed , in circumstances.

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

----O. XLI, R. 27 & O. XIII, Rr. 1, 2---Production of documents at belated stage---Public documents---Good cause---Trial Court allowed the party to produce documents at later stage of proceedings, which order was maintained by the District Court---Contention of the petitioner was that it was incumbent upon a party to produce a document at the first hearing of the suit and if a party failed to do the needful no documentary evidence which was in possession or power of a party was admissible unless and until sufficient cause was shown for its non-production at first hearing---Validity---Under O. XIII R. 2, C.P.C., for producing documents at belated stage, the party has to show good cause, but when the documents sought to be produced are public documents and their authenticity is not doubtful then the provisions of law have to be interpreted liberally and the discretion should be exercised by allowing the party to produce documents at later stage---No legal infirmity or lack of jurisdiction in the impugned orders was noticed---Documents allowed to be produced were necessary for just decision of the case---Impugned orders required no indulgence by the High Court----Writ petitions were dismissed, in circumstances.

2009 CLC 1320 ref.

(d) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----Art. 44---Civil Procedure Code (V of 1908), O. XLI, R.27---Production of documents at belated stage---Writ petition---Maintainability---Trial Court allowed the party to produce documents at later stage of proceedings, which order was maintained by the District Court---Validity---A writ petition can be filed where the orders passed by the Courts below are lacking jurisdictional competence or have been passed in derogation of law but when the Trial Court has exercised discretion in a judicious manner and the order of the Trial Court is maintained in revision petition ,then the same cannot be assailed in writ jurisdiction---No legal infirmity or lack of jurisdiction in the impugned orders was noticed---Documents allowed to be produced were necessary for just decision of the case---Impugned orders required no indulgence by the High Court----Writ petitions were dismissed , in circumstances .

Muhammad Farooq Minhas for Petitioner.

Muhammad Siddique Ch. for private Respondents.

2025 C L C 933

[High Court (AJ&K)]

Before Chaudhary Khalid Rasheed, J

NAZAKAT ALI ---Appellant

Versus

RAJA SHOUKAT ALI and others ---Respondents

Civil Appeal No. 374 of 2019, decided on 29th November, 2024.

(a) Specific Relief Act (I of 1877)---

----S. 54---Suit for perpetual injunction---Dispute---Documentary evidence---Wrong mutation entry subsequently rectified---Claim of the plaintiffs was that the suit-land was purchased by their father from defendants vide sale deed in the year 1965; which land was in their possession and they had constructed houses thereupon but defendants were flexing their muscles to interfere into their peaceful possession in the garb of wrong entries in the revenue record---Plea of the defendants was that the sale-deed-in-question had been tampered as instead of 4 kanals and 9 marlas of land, 4 kanals and 19 marlas had been entered---Suit was concurrently decreed in favour of plaintiffs---Validity---Record revealed that the plaintiffs placed on record an original sale-deed dated 17.04.1965 having been tendered/exhibited in evidence which, inter alia, revealed that total 4 kanals and 19 marlas of land had been purchased and relevant mutation (No. 210) was also attested but inadvertently the acreage of purchased land in the mutation was entered as 4 kanals and 9 marlas; however , in the recent settlement, the entries in the revenue record had been corrected and total purchased land, was entered as 4 kanals and 19 marlas---Defendants had not denied the sale deed dated 17.04.1965 but their stance was that the sale deed had been tampered by the defendants however, no tampering had been found rather controversy created between the parties was only due to the wrong entry in mutation No. 210 which had been rectified subsequently during the recent settlement but defendants in garb of said wrong entry in mutation No.210 tried to take possession of land which had already been sold by their predecessors to the father of plaintiffs---As the plaintiffs had proved their stance that vide sale deed dated 17.04.1965 their father purchased 4 kanals and 19 marlas of land, they were in possession of the purchased land and defendants had no concern with the same land, thus the Courts below accurately decreed the suit filed by plaintiffs/respondents for perpetual injunction---No misreading, non-reading had been noticed in concurrent findings recorded by both the Courts below---Second appeal was dismissed, in circumstances.

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

----S. 100---Concurrent findings of facts---Second appeal---Scope---Concurrent findings of facts cannot be disturbed in second appeal until and unless any misreading, non-reading of evidence or violation of any law is pointed out.

Muhammad Farooq Minhas for Appellant.

Jahanzeb Khan for Respondents.

2025 C L C 1620

[High Court AJ&K]

Before Sardar Liaqat Hussain, J

NAYYER ZAHOOR and 3 others ---Appellants

Versus

PUBLIC AT LARGE ---Respondent

Civil Appeal No. 303 of 2024, decided on 21st November, 2024.

Guardians and Wards Act (VIII of 1890)---

----Ss. 27, 28 & 29---Duties / powers of guardian of property---Scope---Alienation of immovable property by legal guardian---Application for permission to sell property filed by guardian/mother was declined by the Guardian Court---Validity---Sections 27, 28 and 29 of Guardians and Wards Act, 1890, as well as Para No. 362 of Principles of Muhammadan Law postulate that guardian has an authority to sell the property for fulfilment of necessities of minors or where it is necessary to do so for the maintenance of minors---In the present case, appellant (mother/applicant) categorically stated in application that monthly expenses of minors are more than one lac and she has no source of income, thus, for giving better future it is necessary to sell the property---Every contract entered into by a near guardian on behalf and for the benefit of the minor and every contract entered into by a minor with the advice and consent of his guardian as far as his personal property is concerned, is valid and binding upon him provided there be no circumvention or fraud on the face of it---The underlying principle would be the rule of absolute necessity and benefit, for example the ailment of mother/guardian and daily expenditure which could be meted out of the sale of their immovable property only---In case of absolute necessity or clear benefit to the minors, a legal guardian can alienate immovable property belonging to him/her---Thus, the enumerated instances are illustrative of a basic rule of absolute necessity and benefit of the minor---It is the parents who built property, bank balance, etc., for giving better lives to their children---If the question of maintenance of minor occurs, then whatever parents earn would be spent for fulfillment of necessities of minor/ child---Hence, the Guardian Court committed grave error while dealing with the matter by not considering that guardian wanted to sell the property just to fulfil the needs of minors---High Court set-aside impugned order passed by Guardian Court; consequently, the guardian was at liberty to sell the property of minors---Appeal, filed by guardian / mother, was allowed accordingly.

Tahir Aziz Khan for Appellants.

2025 C L C 22

[Islamabad]

Before Babar Sattar, J

Sardar ALI ZIA KHAN---Petitioner

Versus

The ARBITRATION COUNCIL through Chairman and others---Respondents

Writ Petition No.1856 of 2023, decided on 27th September, 2024.

Muslim Family Laws Ordinance (VIII of 1961)---

----S.7---Civil Procedure Code (V of 1908), S. 13---Constitution of Pakistan, Art. 199---Constitutional petition---Divorce Effectiveness Certificate---Foreign judgment---Effect---Petitioner and respondent were husband and wife but the relationship ended in divorce pronounced by foreign Court of competent jurisdiction---Respondent / Arbitration Council declined to issue Divorce Effectiveness Certificate---Validity---Provision of S. 7 of Muslim Family Laws Ordinance, 1961 merely regulates process of recognition by requiring parties to abide by mandatory process, involving 90-day reconciliation period, before divorce is recognized as being effective---Foreign Court in California issued proclamation with regard to dissolution of marriage of parties during pendency of instant petition---Neither party contested jurisdiction of foreign court to do so---Such pronouncement had to be given effect in terms of S. 13, C.P.C.---There was nothing preventing respondent / Arbitration Council from issuing a certificate of effectiveness of divorce in terms of S. 7(3) of Muslim Family Laws Ordinance, 1961 in view of the judgment of dissolution of marriage already issued by a competent foreign court---Constitutional petition was allowed, in circumstances.

Mst. Asma Bibi v. Chairman Reconciliation Committee and others PLD 2020 Lah. 679; Muhammad Akram Nadeem v. Chairman, Arbitration Council/ADLG, Islamabad and others 2021 CLC 1947; Mst. Sadia Malik v. Chairman, Arbitration Council and another 2017 CLC Note 166; Dr. Masood Khan v. Chairman, Arbitration Council, Wah and 2 others PLD 1982 Lah. 532; Muhammad Zaman v. Uzma Bibi and 4 others 2012 CLC 24; Mst. Naseem Akhtar v. Director General Immigration and Passport PLD 2006 Lah. 465; Arif Hussain and another v. The State PLD 1982 FSC 42; Mirza Allah Ditta alias Mirza Javed Akhtar v. Mst. Amna Bibi and another 2004 YLR 239; Smt. Satya v. Teja Singh AIR 1975 SC 105; Y. Narasimha Rao v. Y. Venkata Lakshmi (1991) 3 SCC 451 and Muhammad Ishaque v. Judge Family Court PLD 1975 Lah. 1118 rel.

Zaafir Khan for Petitioner.

Jamila Jehan Noor Aslam and Mustafa Munir Ahmed for Respondent No.2.

Abid Hussain Chaudhry for Respondent No.1.

2025 C L C 75

[Islamabad]

Before Miangul Hassan Aurangzeb, J

MINISTRY OF INTERIOR EMPLOYEES CO-OPERATIVE HOUSING SOCIETY, through General Secretary ---Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman and 3 others---Respondents

Writ Petition No.2450 of 2012 and 1970 of 2020, decided on 7th October, 2024.

(a) Capital Development Authority Ordinance (XXIII of 1960)---

----Ss.27, 28, 29 & 32---Land Acquisition Regulation, 1961, Reglns.3(1) & 15---Acquisition of land---Compensation---Non-payment---Words "as soon as possible"---Effect---Quantity of land acquired---Determination---Factual controversy---Petitioner / Ministry of Interior Employees Cooperative Housing Society (MIECHS) sought direction to respondent / Capital Development Authority (CDA) to pay compensation and complete process of acquisition initiated in year, 2009---Plea raised by respondent / CDA was that no period was specified for payment of compensation---Validity---Mere fact that S. 29 of Capital Development Authority Ordinance, 1960 does not specify period within which payment of compensation is to be made to landowners for their acquired land does not mean that CDA has a free hand to make the payment as and when it takes its fancy---Deputy Commissioner has to proceed to pay the compensation awarded to interested party, as under regulation 15(1) of Land Acquisition Regulation, 1961, it has been provided that "as soon as possible after the award" ---Respondent / CDA claimed to have acquired a total of 641 Kanals and 13 marlas of land of petitioner / MIECHS whereas, according to petitioner / MIECHS, 682 Kanals and 15 marlas was acquired---Such dispute could not be resolved in Constitutional jurisdiction of High Court as it required recording of evidence---High Court declined to rely upon list of different chunks of land attached by petitioner / MIECHS allegedly owned by MIECHS in different Khasra numbers in Revenue Estate concerned, as the same was not an official document---High Court set-aside the compensation payable to petitioner / MIECHS on the ground that despite lapse of fifteen years from the date of pronouncement of award (i.e. 15-01-2009), no compensation was paid---High Court allowed respondent / CDA to initiate fresh process for determination of present market value of petitioner's / MIECHS's land in accordance with the law---Constitutional petition allowed accordingly.

Allah Ditta v. Province of Punjab PLD 1997 Lah. 499; Dr. M. Aslam Khaki v. Muhamma7d Hashim PLD 2000 SC 225; Federation of Pakistan v. Shaukat Ali Mian PLD 1999 SC 1026; Quzalbash Waqf v. Federal Land Commissioner PLD 1990 SC 99; Noman Ahmad v. Capital Development Authority PLD 2021 Isl. 75; Col. Bashir Hussain v. Land Acquisition Collector PLD 1970 Lahore 321; PLJ 1983 FSC 289 (Islamization of Laws - Public Notice No.4); Ikramul Haq v. Province of Sindh 2012 CLC 655 and Commissioner, Rawalpindi / Province of the Punjab v. Naseer Ahmed 2024 SCMR 1037 rel.

(b) Words and phrases---

----'As soon as possible'---Meaning---To do something within a reasonable time, with an understanding to do it within the shortest possible time.

Stroud's Judicial Dictionary of Words and Phrases (4th Edition) and Municipal Corporation of Delhi v. J.B. Bottling Company (Pvt.) Ltd. ILR 1978 Delhi 428 ref.

Sheikh Muhammad Suleman and Ms. Hifsa Suleman for Petitioners.

Hafiz Arfat Ahmad Ch., Tariq Zaman Ch. and Ms. Kashifa Niaz Awan along with Shahryar Tariq, Legal Advisor, CDA for Respondents.

Dawood Iqbal, State Counsel for Respondent No.4.

2025 C L C 181

[Islamabad]

Before Arbab Muhammad Tahir, J

SAEEDA JILLANI and others---Appellants

Versus

Malik SHERAZ ZAFAR and another---Respondents

F.A.O No. 167 and Civil Revision No. 334 of 2019, decided on 7th August, 2024.

Arbitration Act (X of 1940)---

----Ss. 14, 17 & 30---Rules under the Arbitration Act, 1940 [framed by Lahore High Court], R.10(a)---Award, made rule of Court---Locus standi---Objection to award---Duty of Court---Petitioner was aggrieved of award being made rule of the Court and dismissal of objections to the award---Validity---While considering validity of arbitration award within the limbo of S. 30 of Arbitration Act, 1940, Court does not sit as a Court of appeal and avoids reappraisal of evidence---Parties resorted to arbitration of their free will, thereof, award has become final in relation to facts as well as in law and interference therewith by Court was hardly merited unless there existed patent illegality or specific grounds as enunciated in Arbitration Act, 1940---Award was exceptionable and could be interfered with only in cases where there surfaced an error on the face of record not requiring scrutiny beyond Award for discovering the same---Award could be filed by not just the arbitrator/umpire but by parties to arbitration proceedings as well---Arbitrator/umpire was not obligated under S. 14 of Arbitration Act, 1940, to provide the parties with signed copies of the award---Provision of S. 14 of Arbitration Act, 1940, did not pose obstacle before arbitrator/umpire from providing un-signed copies of the award to parties---Where arbitrator/umpire provided the parties with signed copies of the award, they or any of them were at liberty to file the same in Court on the basis of R. 10 of Rules under Arbitration Act, 1940---High Court declined to interfere in the judgment passed by Trial Court---Appeal was dismissed, in circumstances.

2010 YLR 1448; 2004 YLR 1882; 1999 CLC 1685; 2007 YLR 1608; 2003 YLR 1109; PLD 2017 Isl. 1; 2008 CLC 1476; 2010 YLR 164; 1994 SCMR 603; 2010 YLR 1448; PLD 1953 Sindh 18; PLD 2016 SC 121; 2009 SCMR 29; 2014 SCMR 1268; 2018 SCMR 662; 2010 CLC 1014; 2017 YLR 301; AIR 1963 AP 8; PLD 2016 SC 872; PLD 2003 Lah. 522; PLD 1986 Quetta 321; UNICITRAL Model Law on International Commercial Arbitration; CDA and another v. Messrs Habib Rafiq (Pvt.) Ltd and others 2021 SCMR 1137; Inayat Ullah Khan v. Obaidullah Khan and others 1999 SCMR 2702; Puppalla Ramulu v. Nagidi Apalaswami AIR 1957 Andhra Paradesh 11; Oil and Gas Development Company Limited v. Muhammad Nazir Khan (deceased) and others 2024 CLC 988; Syed Ziauddin v. Syed Roze-ud-Din 1999 YLR 978; Ganga Ram v. Radha Kishen AIR 1955 Punjab 145; Province of the Punjab v. M.A. Rashid Said Alam Khan PLD 1990 Lah. 25 and Mrs. Keaye Byrne v. M. Obaidullah Khan PLD 1959 Lah. 146 ref.

Muhammad Wajid Hussain Mughal for Appellants (in F.A.O. No.167 of 2019).

Mansoor Ahmed for Petitioner (in C.R. No.334 of 2019).

Muhammad Ilyas Sheikh and Barrister Talha Ilyas Sheikh for Respondent No.1. (in C.R. No.334 of 2019 as well as F.A.O. No.167 of 2019).

2025 C L C 370

[Islamabad]

Before Mohsin Akhtar Kayani, J

MOHAMMAD QASAM SHAD ---Appellant

Versus

MUHAMMAD IQBAL MALIK and others ---Respondents

Regular First Appeal No. 512 of 2022, Review Application No. 9 of 2024 and Writ Petition No. 3742 of 2022, decided on 25th October, 2024.

(a) Qanun-e-Shahadat (10 of 1984)---

----Art. 59---Handwriting expert, evidence of---Scope---Evidence of handwriting expert is weak type of evidence and is not conclusive in nature---Expert's evidence is only confirmatory or explanatory of direct or circumstantial evidence.

Lal Din v. Muhammad Saleem (Deceased) 2019 CLD 894 rel.

(b) Qanun-e-Shahadat (10 of 1984)---

----Art. 84---Comparison of handwriting---Court, jurisdiction of---Scope---Court itself is entitled to make independent comparison of handwriting apart from opinion of expert as contemplated by Art. 84 of Qanun-e-Shahadat, 1984.

Muslim Commercial Bank Limited v. Amir Hussain 1996 SCMR 464; Khudad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others 2022 SCMR 933 and Gulzar Nathani v. Naeem Ahmed 2010 YLR 358 rel.

(c) Specific Relief Act (I of 1877)---

----Ss. 12 & 54---Qanun-e-Shahadat (10 of 1984), Arts. 59 & 84---Suit for specific performance of agreement to sell---Administration of justice---Doing of complete justice---Inquisitorial proceedings---Signature, comparison of---Duty of Court---In suit for specific performance of agreement to sell appellant/defendant denied execution of any agreement to sell and claimed that he neither signed any document nor received any amount---Trial Court decreed the suit in favour of respondent/plaintiff---Validity---Trial Court did not frame particular issue despite the fact that case of appellant/defendant in written statement was based upon question of forgery of document---On denial of execution of agreement, its signature or even non-receiving of sale consideration, Trial Court was bound to at least exercise its inherent power for:-

i. Summoning of witnesses of record;

ii. Calling author of the document;

iii. Calling witness of execution or content, or may;

iv. Send the document for verification to handwriting expert for comparison of signature or thumb impression, or may;

v. Compare signature by itself with other admitted signatures.

---All such factors were not dependent upon application of any party to the suit---Function of Court was to determine truth on the basis of evidence for which Court could go deeper beyond the available evidence or to the extent of those facts and procedures which did not even surface on record or had been brought on record---High Court set aside judgment and decree passed by Trial Court as serious error had been committed while appreciating evidence---Appeal was allowed, in circumstances.

Giyani Khan v. Sher Ali 2005 CLC 686; Province of Punjab v. Col. Abdul Majeed 1997 SCMR 1692; Salah ud Din But v. Punjab Service Tribunal PLD 1989 [SC] 597; Syed Sharif ul Hassan through L'Rs v. Hafiz Muhammad Amin and others 2012 SCMR 1258 and Edwin Coe LLP v. Naseim Ahmed Sarfraz 2022 CLC 1064 rel.

(d) Specific Relief Act (I of 1877)---

----S. 22---Specific performance of agreement to sell---Relief---This is a discretionary relief and even in case where agreement to sell has been proved, exercise of discretion can be withheld by Court.

Sheikh Akhtar Aziz v. Mst. Shabnum Begum 2019 SCMR 524; Adil Tiwana v. Shaukat Ullah Khan Bangash 2015 SCMR 828; Muhammad Abdur Rehman Qureshi's case 2017 SCMR 1696; Muhammad Sharif v. Nabi Bukhsh 2012 SCMR 900 and Farzand Ali v. Khuda Bakhsh PLD 2015 SC 187 rel.

Malik Fakhar Ali for Appellant/Petitioner.

Rifaqat Islam Awan for Respondent No.1.

Ms. Shoaiba Akhtar for CDA.

2025 C L C 408

[Islamabad]

Before Saman Rafat Imtiaz, J

I.B. EMPLOYEES COOPERATIVE HOUSING SOCIETY through authorized Representative ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE-II, EAST ISLAMABAD and another ---Respondents

Writ Petition No. 277 of 2023, decided on 8th September, 2023.

(a) Co-operative Societies Act (VII of 1925)---

----Ss.59(1)(a), (b) & 59(2), (3)---Limitation Act (IX of 1908), First Sched., Art. 182---Execution of orders by the Liquidator or Registrar---Powers of the Registrar to execute his orders---Scope---Contention of the petitioner was that it was the Registrar who had the powers to execute his orders instead of the Civil Court---Validity---Section 59(1) of the Co-operative Societies Act, 1925 (CSA) provides that an order passed by the liquidator or the Registrar under the stipulated provisions of the CSA, if not carried out, shall on a certificate signed by the Registrar or Liquidator be deemed to be a decree of a Civil Court and shall be executed in the same manner as a decree of such court or alternatively be executed by the Collector in accordance with the law pertaining to the recovery of arrears of land revenue subject to issuance of the requisite certificate---Section 59(2) of CSA empowers the Registrar to exercise powers of the Collector under the relevant law relating to land revenue to recover by sale and attachment of property such sums as stipulated thereunder, whereas, S.59(3) of CSA provides the limitation period applicable upon the Registrar when inter alia exercising the powers under the CSA for the recovery of any amount by sale and/or attachment of property---Limitation period provided for the execution of a decree or order of any Civil Court has been stipulated in Art.182 of the Limitation Act, 1908 and for such purpose S.59(3) of CSA provides that the Registrar shall be deemed to be a Civil Court, therefore, the provision of S.59 of the CSA is absolutely devoid of any language whereby the Registrar is to be deemed a Civil Court for any purposes other than limitation where the Registrar is exercising any power under the CSA for recovery of any amount---Respondent No. 2 had not made an application to the Collector pursuant to S.59(1)(b) of the CSA or to the Registrar under S.59(2) of CSA for recovery in accordance with law pertaining to recovery of arrears of land revenue and as such subsection (3) thereof did not come into play---Both the Courts below correctly concluded that S.59(1) of CSA provides two modes of execution and as such the proceedings before the Civil Court were rightly instituted under the mode provided pursuant to S.59(1)(a) of CSA---Constitutional petition was dismissed accordingly.

Messrs Dehli Co-Operative Housing Society through Chairman v. Province of Sindh through Secretary, Co-Operation, Karachi and 5 others, 2017 MLD 695; Mst. Saima Tabbasam v. Syed Sher Shah and 3 others 20l6 MLD 1430; Muhammad Rafique v. Farida Khan and others 2016 CLC 1451; Dad Rehman and another v. Mst Shakeela 2003 YLR 141; Federal Employees Cooperative Housing Society v. Director General, Federal Investigation Agency, Islamabad and others 2019 PCr.LJ 594; Shahnaz Parveen through Attorney v. The Additional District Judge-III, Karachi-East and 3 others 2019 MLD 1008; Zia Ullah Shah v. Muhammad Khaqan and 6 others 2018 MLD 1860; Shahnaz Parveen through Messrs Dehli Co-Operaine Housing Society through Chairman v. Province of Sindh through Secretary, Co-Operation, Karachi and 5 others 2017 MLD 695 and Sheikh Haidar v. Registrar Cooperative Societies, Karachi and others PLD 1966 (W.P.) Karachi 177 Ref.

Mehrunnisa and others v. Assistant Registrar Cooperative Societies (Recoveries) 2003 MLD 1927 rel.

Government Employees' Cooperative Housing Society Limited and others v. The Secretary, Cooperative Societies and others 2015 MLD 280 and S.M.Tariq Khawaja v. Registrar Cooperative Societies, Islamabad and 3 others 2020 CLC 653 Disting.

(b) Co-operative Societies Act (VII of 1925)---

----Ss. 59(1)(a)---Family Courts Act (XXXV of 1964), S.25---Islamabad Rent Restriction Ordinance (IV of 2001), S.23---Execution of orders/decrees---Scope---Comparison of provisions of Co-operative Societies Act, 1925 ("CSA") with the provisions of Family Courts Act, 1964 and Islamabad Rent Restriction Ordinance, 2001---Significant distinction in phraseology of said laws---Examination of the provisions of the Family Courts Act, 1964 and the Islamabad Rent Restriction Ordinance, 2001 in comparison with S.59(1)(a) of the Co-operative Societies Act, 1925 ("CSA") highlighted various significant differences in phraseology---As per provision of the Co-operative Societies Act, 1925 it is an order passed inter alia by the Registrar under the stipulated provisions that shall be deemed to be a decree of the Civil Court and which shall be executed in the same manner as a decree of such court, therefore, the subject of the said provision is the order passed by the Registrar, which has been accorded the status of a decree passed by a Civil Court and as such ordains for it to be executed in the same manner as a decree of the Civil Court and the said provision does not state that the Registrar shall be deemed to be a Civil Court---Comparison with the other provisions of laws makes it clear and apparent that where the Legislature intended to confer the power of execution upon the forum passing the order/decree to be executed, it does so in clear and explicit language, which is conspicuously missing in S.59(1)(a) of the CSA.

Sardar Taimoor Aslam Khan and Mudassar Abbas for Petitioner.

Rizwan Shabbir Kayani for Respondent No.2.

2025 C L C 439

[Islamabad]

Before Mohsin Akhtar Kayani, J

SABIR HUSSAIN ---Appellant

Versus

MUHAMMAD ASHFAQ ---Respondent

R.F.A. No. 176 of 2021, decided on 6th February, 2024.

(a) Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Land Revenue Act (XVII of 1967), S. 3---Criminal Procedure Code (V of 1898), S.145---Suit for declaration and injunction---Possession, determining of---Proof---Instructions to revenue authorities---Suit filed by respondent/plaintiff was decreed in his favour by Trial Court relying upon report prepared by revenue officials during proceedings under S. 145 Cr.P.C.---Plea raised by appellant/defendant was that Trial Court did not consider report of Local Commission instead relied upon reports submitted by revenue officials in proceedings which were consigned to record without any decision---Validity---Revenue reports were issued on the direction of lawful authorities in proceedings under S. 145 Cr.P.C. which were judicial proceedings---Reports in question were not objected to by appellant/defendant during the course of their submission---Trial Court had rightly observed authenticity of reports in question---Land of appellant / defendant was far away from land of respondent/plaintiff---High Court directed that before issuance of any periodical record of rights for the purpose of sale (فرد بیع), Halqa Patwari should ask vendor/owner regarding possession of property and record such aspect in daily diary while incorporating mutation in register; that Halqa Patwari should verify possession of property and prepare a report confirming actual possession by inspecting or through Girdawariگرداوری)), that Revenue officers/Tehsildar at the time of sanctioning mutation should ensure delivery of possession Jalsa-e-Aam (جلسہ عام) based upon report prepared by Halqa Patwari; that at the time of sanctioning mutation if land fell within the Abadi Deh (آبادی دیہہ), Collector/Revenue officer was under legal obligation to requisition a report of physical inspection from subordinate revenue officials including Qanungo, Naib Tehsildar, Halqa Patwari, etc. and should refer to the surrounding (محل وقوع) containing description of plot or land; that Board of Revenue/Chief Commissioner ICT, Collector/Deputy Commissioner were under legal obligation to notify Abadi Deh ( آبادی دیہہ) through notifications under S. 3 of Land Revenue Act, 1967 in each Mouza and in case, such notification was not issued, then they should give certificate subject to verification through a circular directing subordinate officials, Registrar, Joint Sub-Registraretc. to refer the land in Abadi Deh (آبادی دیہہ) to avoid future litigation; that no Registrar, Joint Sub-Registrar were authorized to register any sale deed of land meant for construction of house or built up property unless a physical verification with reference to possession through inquiry had been made and duly recorded in the record and till such time sale deeds should be kept pending for their authorized execution; that Registrar, Joint Sub-Registrar or Revenue Officer or Tehsildar could issue local commission through any official for verification of possession of property in Abadi Deh (آبادی دیہہ) before sanctioning any mutation or sale deed; that Registrar, Joint Sub-Registrar, Tehsildar or Revenue Officer, who issue direction for verification/inspection of land under transfer, must maintain a separate register in sequence to maintain reports in their office as public record, which must be used for any purpose required under the law in any trial proceedings inquiries, etc; that Chief Commissioner shall issue such instructions through circular to his subordinate officials and non-compliance of such directions would render departmental action against the officials; that such circulars must contain timeline of inspection report, Local Commission report for verification of possession on site of any land which must be received before Register or Revenue Officer within period of seven days by all means so that general public should not be deprived from their transfer of immovable property rights; that Chief Commissioner shall call joint survey before issuance of notification under S. 3 of Land Revenue Act, 1967 from office of Surveyor General of Pakistan and could use modern devices, including but not limited to Google mapping, coordinates in land, and if possible, could also pass a direction to notify the coordinates i.e. longitude and latitude of any property or any particular point of reference for the purpose of identification of land in sale deeds---High Court further directed Chief Commissioner to also issue necessary directions to MCI, Administrator or Mayor of Local Government to issue identification number to Abadi Deh (آبادی دیہہ), which could be used in sale deed, gifted, etc. in future; that once notification under S. 3 of Land Revenue Act, 1967 was issued declaring Abadi Deh (آبادی دیہہ) and survey numbers were marked the Halqa Patwari should not record any mutation, rather, only sale deed, gift deed, etc. used as mode of transfer of immovable property---High Court also directed that sale deed must contain photographic evidence of vendor, vendee, seller, purchaser as the case may be along with witnesses, to avoid any untoward claim of fraud in future---High Court declined to interfere in judgment and decree passed by Trial Court as principle of preponderance was rightly applied and no illegality was committed in appreciation of record---Appellant/defendant failed to justify his case when he did not produce any evidence to rebut claim of respondent/plaintiff, except his own testimony which was insufficient qua the technical reports---Appeal was dismissed, in circumstances.

Mst. Zainab v. Muhammad Iqbal 2005 YLR 2129; Saeed Ahmed v. Haji Abdul Hameed 2017 CLC Note 184 and Muhammad Imran v. Ghulam Mustafa and 6 others 2015 YLR 2683 rel.

(b) Words and phrases---

----Judicial notice---Connotation---Term "judicial notice" means expression which has been recognized without proving of something as existing or being true.

Muhammad Sajjad Abbasi for Appellant.

2025 C L C 486

[Islamabad]

Before Arbab Muhammad Tahir, J

CAPITAL DEVELOPMENT AUTHORITY through Chairman, Islamabad ---Appellant

Versus

Syed SHUJAAT HUSSAIN and 2 others ---Respondents

Writ Petition No. 1060 of 2014, decided on 25th January, 2023.

Allotment---

----Allotment of plot, cancellation of---Delay in seeking remedy---Limitation---Petitioner/Capital Development Authority cancelled allotment of plot in question which was made in the year 1981---Federal Ombudsman and Appellate Authority decided complaint and appeal in favour of respondent/allottee and had set aside order passed by petitioner/CDA---Validity---Delay defeats equity and equity leans in favour of a vigilant litigant---Law of limitation is not considered a mere formality and is required to be observed as being mandatory in nature---Lapse of time creates rights in favour of other party and therefore burdens the party which fails to act within stipulated time to demonstrate sufficient and satisfactory cause/reason for delay regarding each day---Person may have an enforceable right, but if he/she fails to enforce such right within time stipulated by law, then such right becomes unenforceable---Grant of license to use plot in question for purpose for which it was allotted did not confer absolute vested right---Agreement to lease was subject to fulfillment of conditions mentioned therein and completion of project, and was revocable as agreed by respondent/allottee in the agreement---High Court set aside the orders passed by Federal Ombudsman and Appellate Authority---Constitutional petition was allowed, in circumstances.

Syed Shujaat Hussain v. Capital Development Authority through Chairman, Islamabad and another PLD 2012 Islamabad 13; Board of Secondary Education through authorized officer v. Provincial Ombudsman of Sindh and 2 others 2019 CLC 1531; State Life Insurance Corporation of Pakistan v. Wafaqi Mohtasib, Federal Ombudsman Secretariat, Islamabad and another 2000 CLC 1593; Pakistan Railways through General Manager, Railway Headquarters Office, Lahore v. Abdul Bari Khan and others PLD 2004 SC 127; Mrs. Anisa Rehman v. PIAC and others 1994 SCMR 2232; Muhammad Ayub Khan Tanoli v. Secretary of Industries, Government of N.W.F.P., Peshawar and 3 others 2004 CLC 1500; Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and 2 others PLD 1991 SC 973; Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukh PLD 1969 SC 407; Capital Development Authority through Chairman and another v. Zahid Iqbal and another PLD 2004 SC 99; Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and others 1999 SCMR 2189; Hamida Farhat Burki v. Capital Development Authority and 3 others 2015 MLD 845; State Bank of Pakistan through Governor v. Imtiaz Ali Khan 2012 SCMR 280; Ghulam Sarwar v. Amir Hussain 2004 SCMR 944; Lahore Development Authority v. Mst. Sharifan Bibi PLD 2010 SC 705; Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631 and Zafar Ali v. The State 2008 YLR 2071 rel.

Muhammad Nazir Jawad for Petitioner.

Zulfiqar Ali Abbasi, Asim Shahbaz Malik and Shahid Munir for Respondents.

2025 C L C 589

[Islamabad]

Before Babar Sattar, J

PAKISTAN ENGINEERING COUNCIL through Registrar ---Petitioner

Versus

HIGHER EDUCATION COMMISSION OF PAKISTAN through Chairperson and another ---Respondents

Writ Petition No. 260 of 2022, decided on 19th November, 2024.

Higher Education Commission Ordinance (LIII of 2002)

----S. 10---Pakistan Engineering Council Act, 1975 (V of 1976), S. 8---Notification qua equivalence of B.Sc. and B.Tech. degrees---Determining criteria for recruitment and promotion---Policy decision taken by the Higher Education Commission (HEC) and Pakistan Engineering Council (PEC)---Legality---Powers and functions of HEC and PEC qua academic equivalence determination---Scope---Contention of the petitioner was that HEC and PEC had power only to the extent of academic equivalence determination and had no power to determine criteria for recruitment and promotions etc. on the basis of such equivalence or academic credentials---Validity---Higher Education Commission in view of the powers and functions conferred on it under provisions of the HEC Ordinance was vested with no authority to determine or declare as to which degrees could be treated as equivalent to others for purposes of recruitment or promotion etc.---Higher Education Commission was vested with statutory authority to grant equivalence to academic and educational qualifications and the scope of such authority was limited to declaring whether one academic or educational qualification could be treated as equivalent to another---Higher Education Commission in its National Qualification Framework of Pakistan, 2015, had correctly noted that a certain qualification being equivalent to another only reflected that such qualifications might be comparable in terms of the period of instruction leading to the award of such qualification etc. and such equivalence did not signify that the knowledge, skill or competence acquired by the qualification holder was interchangeable with another individual holding another degree or qualification that had been declared equivalent, thus, HEC was vested with no authority to advise employers as to which degrees could be considered equivalent for purposes of recruitment or for purposes of promotion---Skills, competence and knowledge that was required for purposes of a certain post was a policy matter to be determined by the relevant employer and while an employer could seek guidance from any equivalence granted by HEC declaring one qualification as comparable to another, any such equivalence or guidance provided by HEC was not binding on any employer---Criteria for recruitment and promotion, thus, fell squarely within the domain of the relevant employer to be determined on the basis of its relevant policy consideration, and not PEC or HEC---Notification was set aside and constitutional petition was allowed, in circumstances.

Province of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others v. Farasatullah and others 2020 PLC (C.S.) 1423; Maula Bux Shaikh v. Chief Minister Sindh 2018 SCMR 2098; Muhammad Siddique Nasim v. The Secretary, Government of the Punjab, Irrigation and Power Department, Lahore and another 1987 SCMR 302; Mohammad Azim Jamali and 11 others v. Government of Pakistan through Secretary/Chairman, Ministry of Railways and 33 others 1992 PLC (C.S.) 637; Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad and another PLD 1995 Supreme Court 701; Chief Secretary to Government of NWFP Peshawar and 4 others v. Sayed Rehman, Research Officer (Stand), Veterinary Research Institute, Peshawar 1997 PLC (C.S.) 180; Pakistan Engineering Council through Registrar, Islamabad and others v. Federation of Pakistan through Secretary, Establishment, Islamabad and others 1998 SCMR 811; Nazir-ul-Hasan and 2 others v. Syed Anwar Iqbal and others 2014 SCMR 1827 and Mohammad Uneeb Ahmed v. Federation of Pakistan PLD 2022 SC 345 rel.

Barrister Raheel Ahmed, Barrister Ayesha Siddique and Umer Rehman for Petitioner.

Shahid Habib for HEC.

Ms. Azra Batool Kazmi, A.A.G. and Dr. Agha Ghulam Haider, Deputy Director (Legal), Ministry of FE&PT.

Hafiz Ahsan Ahmed Khokhar for Respondent No. 3.

Mohammad Shahzad Hanif Mayo and Muhammad Ali Jahri for Respondent No. 4.

2025 C L C 605

[Islamabad]

Before Miangul Hassan Aurangzeb and Saman Rafat Imtiaz, JJ

PEB STEEL ALLIANCE LIMITED ---Appellant

Versus

EARTHQUAKE RECONSTRUCTION AND REHABILITATION AUTHORITY (ERRA) through Chairman and 3 others ---Respondents

F.A.O. No. 108 of 2019, decided on 3rd February, 2025.

(a) Arbitration Act (X of 1940)---

----S. 34---Arbitration agreement---Expression "such authority may make an order staying the proceedings"---Stay of proceedings---Discretion of Court---Where parties to a contract have agreed to resolve their disputes through arbitration, ordinarily Court must hold the parties to their bargain---This is not an absolute rule---Power conferred upon Court to grant a stay under S. 34 of Arbitration Act, 1940 is entirely a matter of discretion of Court---Expression "such authority may make an order staying the proceedings" indicates that Court has discretion to stay suit or not.

(b) Arbitration Act (X of 1940)---

----S. 34---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for recovery of money---Stay of proceedings---Plaint not rejected---Proceedings in suit filed by appellant/plaintiff company were stayed by Trial Court due to arbitration clause in contract between the parties---Application under O. VII, R. 11, C.P.C. filed by respondents/defendants-Authorities for the plaint in the suit to be rejected on the ground that Court at place "I" did not have the territorial jurisdiction to adjudicate upon the suit, was dismissed---Plea raised by respondents/defendants-Authorities was that works under contracts were executed at place "M" and that contracts were also executed at place "M"---Validity---One of the respondent/defendant authority did not have its offices at place "I"---Dispute as to whether the contracts were executed between respondent/defendant authority and JV at place "I" or place "M" was also to be determined by Trial Court after recording of evidence---Whether or not respondent/defendant authority's excuse for payment of amount into JV account instead of payment through Letter of Credit in accordance with the provisions of the contracts was plausible or sustainable was also to be determined in an adjudicatory process in Trial Court in the suit instituted by appellant/plaintiff company---Trial Court did not commit any jurisdictional irregularity by dismissing application under O. VII, R. 11, C.P.C.---High Court set aside order of Trial Court staying proceedings, resultantly application under S. 34 of Arbitration Act, 1940 was dismissed---Appeal was allowed accordingly.

Eckhardt and Co. Marine GmbH v. Muhammad Hanif PLD 1993 SC 42; Uzin Export Import Foreign Trade Co. v. Macdonald Layton and Co. Ltd. 1996 SCMR 690; Rachappa Gurudappa Bijapur v. Gurudiddappa Nurandappa AIR 1989 SC 635 = 1989 (3) SCC 245; Tradesmen International (Pvt.) Ltd. v. Federation of Pakistan 2005 MLD 541; Ovex Technologies (Pvt.) Ltd. v. PCM PK (Pvt.) Ltd. PLD 2020 Islamabad 52; National Development Leasing Corporation Ltd. v. Chairman, Banking Tribunal / Court 2000 YLR 1769; Gulf Iran Co. v. Pakistan Refinery Limited PLD 1976 Karachi 1060; Muhammad Zaffar v. Muhammad Sikandar 2000 YLR 2503; Messrs Tradesmen International (Pvt.) Ltd. v. Federation of Pakistan 2005 MLD 541; Sheodatt v. Prakash Distributors AIR 1954 Nagpur 289; C.H.O. and C.S. Co. v. Brijnath Singhji AIR 1956 Nagpur 61; Asiatic Shipping Co. v. P.N.D. Lloyd AIR 1969 Calcutta 374; Sunderdas Thackersay and Bros. v. Commercial Mills Co. AIR 1971 Calcutta 398; Barium Chemicals Ltd. v. Bombay Industrial and Chemicals Co. AIR 1977 Andhra Pradesh 400; Brij Gopal Binani v. Sreelal Binani AIR 1978 Calcutta 520; Taj Financing and Trading Co. v. Inder Dev Gupta AIR 1986 Punjab and Haryana 55 and Sudhir Kumar Saha v. J.N. Chemicals (P.) Ltd. AIR 1985 Calcutta 454 rel.

Barrister Farrukh Jawad Panni for Appellant (in F.A.O. No. 108 of 2019) and for Respondent No. 1.

Saeed Ahmed Zaidi for Respondents Nos. 1 and 2 (in F.A.O. No. 108 of 2019) and for Petitioners (in C.R. No. 136 of 2019).

2025 C L C 698

[Islamabad]

Before Saman Rafat Imtiaz, J

Messrs AL-SAFA GOLDEN CO. (PVT.) LTD. through Chief Executive ---Appellant

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman and 2 others ---Respondents

R.F.A No. 74 of 2020, decided on 7th October, 2024.

(a) General Clauses Act (X of 1897)---

----S. 21---Power to make, amend or withdraw any order---Doctrine of locus poenitentiae---Object, purpose and scope---Authority that has power to make an order also has power to undo it---Such power is considered necessary for all authorities empowered to pass orders in order for them to retrace wrong steps taken by them---Such power is subject to doctrine of locus poenitentiae which is power of receding till a decisive step is taken---Power to undo an order to correct a wrong is subject to an exception that where the order has taken legal effect and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights.

Pakistan through the Secretary Ministry of Finance v. Muhammad Himayatullah Faruki PLD 1969 SC 407 rel.

(b) Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Capital Development Authority Ordinance (XXIII of

1960), S. 49C---Islamabad Residential Sectors Zoning (Building Control) Regulations, 2005, Reglns. 2 & 3---Suit for declaration and injunction---Doctrine of locus poenitentiae---Cancellation of allotment---Violation of approved building plan---Floor Area Ratio (FAR), principle of---Applicability---Appellant/plaintiff company was aggrieved of cancellation of allotment of plot in question due to some alleged violations during construction pertaining to FAR---Validity---Neither any prior show cause notice was issued to appellant/plaintiff company for violation of Regln. 2.8 of Islamabad Residential Sectors Zoning (Building Control) Regulations, 2005, nor the same was discussed in Summary for Regularization dated 14-11-2017, wherein decision to cancel allotment in respect of subject plot was taken---Such cancellation of allotment of subject plot in favour of appellant/plaintiff company, vide Cancellation Letter in question was not justified on the ground of alleged violation of Regln. 2.8 of Islamabad Residential Sectors Zoning (Building Control) Regulations, 2005---High Court declared that Cancellation Letter was illegal, void, and contrary to law for having been issued without prior show-cause notice for cancellation of subject plot---Decisive steps had been taken by appellant/plaintiff company, when construction was carried out in accordance with revised building plan at subject plot pursuant to the approval granted by respondents/CDA to enhance FAR by excluding common/circulation area---Doctrine of locus poenitentiae could not be invoked in case of an illegal order---Approval granted to appellant/plaintiff company for enhancement of FAR by excluding common/circulation areas was not illegal as enhancement/deviation of FAR was permissible under Regln. 2.4 of Islamabad Residential Sectors Zoning (Building Control) Regulations, 2005---High Court set aside judgment and decree passed by Trial Court and suit filed by appellant / plaintiff company was decreed in its favour---Appeal was allowed accordingly.

Messrs Al-Safa Golden Co. (Pvt.) Limited v. Capital Development Authority through its Chairman 2016 CLC 210; Messrs Golden Tea Company v. Capital Development Authority through its Chairman Civil Appeal No. 168 of 2018; Sarmad Faraz v. Capital Development Authority (CDA), Islamabad through its Chairman Civil Appeal No. 1265 of 2018; Punjab Provincial Cooperative Bank Limited v. Member (Colonies) Board of Revenue Punjab, Lahore 2023 CLC 1331; Ch. Munir Ahmad v. Government of Punjab through Chief Secretary, Punjab Lahore PLD 2022 Lahore 384; Justice Muhammad Farrukh Irfan Khan, Judge Lahore High Court v. Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs Division PLD 2019 SC 509; Shahid Chanzaib v. C.D.A. 2017 YLR 411; Sajjad Ahmed v. Chairman, Capital Development Authority 2016 CLC 896; Suo Motu Case No. 13 of 2009: Action on press clipping from the Daily "Patriot", Islamabad dated 4-7- 2009 regarding Joint Venture Agreement between CDA and Multi-Professional Cooperative Housing Society (MPCHS) for development of land in Sector E-11 Islamabad, PLD 2011 SC 619; Ignees Maria v. District Coordination Officer, District Bahawalnagar, 2012 PLC (C.S.) 772; Muhammad Shamim v. Mst. Nisar Fatima 2010 SCMR 18; Farooq Hamid v. L.D.A. 2008 SCMR 493; Muhammad Sidiq v. Punjab Service Tribunal, Lahore 2007 SCMR 318; Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary 2005 SCMR 1814; Capital Development Authority v. Zahid Iqbal PLD 2004 SC 99; Ayesha Afzal v. Chairman, Board of Intermediate and Secondary Education 2001 CLC 1765; Jamil Ahmed v. Karachi Building Control Authority 2001 MLD 1635; Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883; Muhammad Khurshid Abbasi v. Administrator/Assistant Commissioner, Municipal Committee, Murree 1999 SCMR 2224; Mir Afzal Khan v. Karachi Development Authority PLD 1998 Karachi 283; Pakistan through Secretary, Ministry of Commerce v. Salahuddin PLD 1991 SC 546; Capital Development Authority, CDA v. Ahmed Murtaza 2023 SCMR 61; Umc Technologies Private Limited v. Food Corporation of India AIR 2021 SC 166; Khushdil Khan Malik v. Secretary, Ministry of Defence Rawalpindi Cantt. PLD 2017 SC 173; Yaqoub Eusuf Mayet v. Pakistan Defence Officers Housing Authority, Karachi 1992 CLC 1444; A.F. Ferguson & Co. through Partner v. Securities and Exchange Commission of Pakistan through Chairman 2005 CLD 454; Habib Carpets (Pvt.) Limited v. Karachi Properties Investment Company (Pvt.) Limited (KPICL), 2022 MLD 1754; Pakistan through the Secretary Ministry of Finance v. Muhammad Himayatullah Faruki PLD 1969 SC 407; Syed Azam Shah v. Federation of Pakistan through Secretary Cabinet Division, Cabinet Secretariat, Islamabad, 2022 SCMR 201; Capital Development Authority, CDA v. Ahmed Murtaza 2023 SCMR 61; Abdul Hayee Ex. SST (G) v. The Accountant General Balochistan 2024 PLC (C.S) 393 and Sunni Ittehad Council and another v. Election Commission of Pakistan and others Civil Appeals Nos. 333 and 334 of 2024 ref.

Wasim Sajjad, Senior Advocate Supreme Court, Idrees Ashraf, Barrister Hanan Alam and Ahmad Raza Mangat for Appellant.

Aamir Latif Gill, Advocate Supreme Court, Ms. Sabeen Faheem and Rizwan for Respondents.

2025 C L C 750

[Islamabad]

Before Miangul Hassan Aurangzeb, J

CM PAK LIMITED through Company Secretary ---Appellant

Versus

The PAKISTAN TELECOMMUNICATION AUTHORITY ---Respondent

F.A.O. No. 138 of 2018, decided on 20th December, 2024.

(a) Pakistan Telecommunication (Re-organization) Act (XVII of 1996) [as amended by Pakistan Telecommunication (Re-organization) (Amendment) Act (II of 2006)]---

----Ss. 7(1), 7(2), 23(1) & 33A(4)(b)---Universal Service Fund (USF) contribution---Delay---Demand of Late Payment Additional Fee (LPAF)---Issue of enforcement of orders and penalties---Issuance of show cause notice---Culmination of proceedings by the Pakistan Telecommunication Authority (PTA) by passing the order/decision----Licencee challenged the said order on the grounds that no LPAF could be imposed due to delay in payment of USF and since show cause notice was issued by the Director (Legal) PTA (delegatee) and not by PTA (Delegator), thus, PTA had no authority to proceed with the matter---Validity---Section 23 of the Pakistan Telecommunication (Re-organization) Act, 1996, (Act) provides that where a licensee contravenes any provision of the Act or the Rules made thereunder or any term or condition of the licence, PTA or any of its officers not below the rank of Director may, by written notice, require the licensee to show cause within thirty days as to why an enforcement order may not be issued---Continued failure on part of the licensee to pay the USF caused PTA to issue show cause notice to the licensee, explicitly mentioning that the Director (Law), PTA was issuing the said notice by exercising the delegated powers of PTA---No provision in the Act or the Rules made thereunder prevented PTA from conducting proceedings pursuant to a notice which was issued by an officer exercising delegated powers of PTA---By delegating its power, the parent authority does not denude itself of its authority either to revoke the delegation or to exercise its power as a parent authority---Under S. 7(2) of the Act, an appeal lays to PTA against any decision or order of any officer of PTA acting under the delegated powers of PTA---Order/decision had been passed by PTA and not by any officer of PTA acting under the delegated powers of PTA, thus, an appeal in terms of S.7(1) of the Act against the said order/decision could be preferred before the High Court and as such no substance was found in the appellant's contention that since the show cause notice had been issued by the Director (Law), PTA, it was only he who should have conducted the proceedings pursuant to the said notice or to have taken a decision in the matter---Terms of the licence brought USF contribution within the rubric of annual fees, the non-payment or delay in the payment whereof entailed the imposition of LPAF---Appeal was dismissed, in circumstances.

(b) Pakistan Telecommunication (Re-organization) Act (XVII of 1996) [as amended by Pakistan Telecommunication (Re-organization) (Amendment) Act (II of 2006)]---

----Ss. 23(1) & 33A(4)(b)---Payment of Universal Service Fund (USF)---Delay---Demand of payment of Late Payment Additional Fee (LPAF)---Plea of pendency of suit for recovery---Validity---If at all the appellant was able to secure a decree in its favour, it could surely institute execution proceedings against the defendants in the said suit, but a claim simpliciter against the USF Company could not furnish a valid ground for the appellant to avoid its obligation under clause 4.1.2.2 of the licence to make its USF contribution.

(c) Pakistan Telecommunication (Re-organization) Act (XVII of 1996) [as amended by Pakistan Telecommunication (Re-organization) (Amendment) Act (II of 2006)]---

----Ss. 7(1), 7(2), 23(1) & 33(4)(b)---Payment of Universal Service Fund (USF) contribution by the Mobile Cellular licensee---Delay---Demand of payment of Late Payment Additional Fee (LPAF)---Partial satisfaction of demand---Claim of issuance of fresh show cause notice---Validity---Whenever during the pendency of proceedings, a claim is partially satisfied, the proceedings could continue with respect to the remaining amount---Appellant by its act of making a partial contribution to USF could not expect the clock to be turned back for the initiation of proceedings afresh by the issuance of another show cause notice.

(d) Interpretation of statutes---

----Subordinate legislation---Delegation of powers---Scope---Delegator cannot denude itself of its authority either to revoke the delegation or to exercise its power as a parent authority, however, only in cases where the delegatee has already decided the matter, the delegator cannot revisit the decision of the delegate unless an express power is conferred in this regard.

National Telecommunication Corporation v. Pakistan Telecommunication Authority F.A.O. No. 164 of 2017 rel.

Mian Shafaqat Jan for Appellant.

Rashid Hanif and Syeda Itrat Batool for Respondent.

2025 C L C 943

[Islamabad]

Before Babar Sattar, J

MUHAMMAD TAHIR NIZAMI ---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of National Health Services, Regulations and Coordination Islamabad and 4 others ---Respondents

Writ Petition No. 2705 of 2023, decided on 23rd October, 2023.

Unani, Ayurvedic and Homoeopathic Practitioners Act (II of 1965)---

----Ss. 9(3) & 9(5)---Unanai, Ayurvedic and Homoeopathic System Medicine Rules, 1980, Rr. 15 & 21(2)---Elections of the National Council for Homoepathy---Sitting members---Eligibility---Petitioners were aggrieved by the failure of Returning Officer (respondent) for conducting elections of the National Council for Homoepathy ('Council'), in deciding objections filed by the petitioner against the eligibility of (two) respondents to contest the election as Members of the Council---Plea of the petitioners was that pursuant to S. 9(3) of the Unani, Ayurvedic and Homoeopathic Practitioners Act, 1965 ('the Act 1965') the members were eligible for re-nomination or re-election to the Council on the expiry of the prescribed term---Contention of the respondents/candidates was that it was imperative to determine the intent of the legislature in S. 9(3) of the Act 1965, which was permissive and not prohibitive for members to be re-nominated or re-elected---Question whether S. 9 of the Act, 1965 allowed sitting members of the Council to contest the election to serve on a successive Council---Held, that S. 9(3) of the Act, 1965 determined the eligibility of members for re-nomination or re-election to the Council and plainly provided that members of the Council shall be eligible for re-nomination or re-election "on the expiry of the prescribed term"---Term of the Council was prescribed by R. 15 of the Unani, Ayurvedic and Homoeopathic System Medicine Rules, 1980 ('the Rules, 1980') as a five-year period---If a member of the Council was only eligible for re-nomination or re-election upon expiry of the prescribed term of five years, the election of the successive Council under S. 9(5) of the Act, 1965 read together with R. 18 of the Rules, 1980 would have already taken place by the time the term of office of such member expired---Sections 9(1) and 9(2) of the Act, 1965 read with R. 15 of the Rules, 1980 provide that a member will serve out a five-year term and will cease to hold office upon expiry of such five-year period---Section 9(5) of the Act 1965 then mandates that the election of successive Council must be held three months prior to the expiry of the term of the Council---If S. 9(3) of the Act, 1965 was read in such manner, as was contented by the respondents, the said section would become redundant---Section 9(3) of the Act, 1965 clearly stated that members became eligible for re-nomination or re-election on expiry of their five-year term---If that was what the legislature had intended, instead of using the words "on expiry of the term" it could simply have written "prior to the expiry of the prescribed term", or better still it could simply have omitted S. 9(3) of the Act, 1965 or stated that members of the Council were eligible for re-nomination or re-election---Even from a policy perspective it was hard to accord S. 9(3) of the Act, 1965, the meaning being accorded by the respondents under the doctrine of purposive interpretation---Intent of the legislature as evident from S. 9(3) of the Act, 1965 read together with S. 9(5) was to create a cooling-off period for the incumbent members of a Council and enable other members to be elected as members of the Council---It could not be presumed that this was not the intent of the legislature and in order to make sense of S. 9(3) of the Act, 1965 the Court must read into the said subsection what was not provided therein---Where it appears that the words used by the legislature are unambiguous, it is not for the Court to read into the statute and give it a meaning that does not flow from the ordinary meaning of the words used---Plain reading of S. 9(3) of the Act, 1965 read together with the other subsections of S. 9 provided that the members of a Council were not eligible for re-election till after the expiry of their five year term by which time the election of the successive Council would already have been convened---Consequently, the Returning Officer/respondent could not have accepted the nomination papers for respondents/candidates to contest elections of the successive Council, which were being convened at a time when their term in office had not expired and they were incumbent members of the Council---Respondents were ,therefore, ineligible to contest the election and the acceptance of their nomination papers was in breach of S. 9(3) of the Act, 1965---Acceptance of nomination papers of respondents is declared to be unlawful---Returning Officer will remove the names of respondents and the names of any other members of the Council whose term as members of the Council had not expired, and issue an updated list of valid nominations for purposes of R. 22 of the Rules, 1980---Returning Officer (respondent) will proceed to issue a revised schedule of the next steps to be followed for purposes of convening the election in accordance with the Rules, 1980---Returning Officer (respondent) will ensure that the election is convened and a Council is in place prior to the expiry of the term of the incumbent Council as required by S. 9(5) of the Act, 1965---Constitutional petitions were allowed accordingly.

Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources v. Durrani Ceramics 2014 PTD 2016; Jamat-i-Islami Pakistan v. Federation of Pakistan PLD 2000 SC 111; Standard Printing Press v. Sindh Employees' Social Security Institution 1988 SCMR 91 and Messrs Telenor Pakistan (Pvt.) Ltd. v. Federation of Pakistan through Ministry of Finance and 4 others 2022 PTD 1097 ref.

Sher Afzal Khan Marwat and Qaiser Abbas for Petitioner.

Ch. Imtiaz Ahmed, Dr. Ishfaq Ahmed, Fazal-ur-Rehman Khan Niazi, Deputy Attorney General, Rahman Shah, DS (Admin), Ashraf Nasar, Deputy Director (Legal), Ministry of NHSR&C for Respondents.

2025 C L C 970

[Islamabad]

Before Muhammad Azam Khan, J

TALIB HUSSAIN and 2 others ---Appellants

Versus

FAIZ ALAM and others ---Respondents

Writ Petition No. 3296 of 2017, decided on 3rd February, 2025.

West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)---

----Ss. 3 & 17---Redemption of mortgaged land---Fraudulent transfer of land by the mortgagee---Jurisdiction of civil court to decide the matter---Scope---Application for possession through redemption of mortgaged property filed by the mortgagor was accepted by the District Collector---Upon appeal preferred by the mortgagee the said order was set aside by the Commissioner (Revenue) with the observation that in view of fraudulent transfer the jurisdiction to decide the matter vested with the civil court---Upon an appeal by the mortgagor such observation was turned down by the Chief Commissioner and while exercising powers of Board of Revenue decided the matter in favour of mortgagor---Validity---Under S. 17 of the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964, the jurisdiction of civil court is barred---Civil Court has no jurisdiction to adjudicate upon the matters related to redemption of mortgages and the Chief Commissioner, who was exercising the powers of Board of Revenue, had rightly passed the order in favour of the respondents---Constitutional petition was dismissed, in circumstances.

Liaqat Ali and others v. Hukam Khan 2011 CLC 1034 and Allah Dad v. Muhammad (deceased) through L.Rs and others 2017 YLR 1662 rel.

Muhammad Asad Abbas Raja for Appellants.

Aamir Azad and Muhammad Asif Jameel, State Counsel (for Respondents Nos. 12 to 14).

2025 C L C 987

[Islamabad]

Before Muhammad Azam Khan, J

MASHAB ALI through special attorney ---Petitioner

Versus

JUDGE FAMILY COURT (EAST), ISLAMABAD and 4 others ---Respondents

Writ Petition No. 596 of 2025, heard on 28th February, 2025.

Family Courts Act (XXXV of 1964)---

----S. 14(3)---Constitution of Pakistan, Art. 199---Interim maintenance allowance of minor fixed by Family Court---Quantum, challenging of---Constitutional petition---Scope---Section 14(3) of the Family Courts Act, 1964, clearly stipulates that the Legislature has specially prohibited the filing of an appeal against an interim order, thereby indicating that the Legislature did not intend for an interim order to be subject to challenge---When a party challenges an interim order during the pendency of a suit under the constitutional jurisdiction vested in the High Court, the Court must exercise its jurisdiction with due consideration of the fact that the order is interim in nature---Not every interim order should be challenged at this stage---Once the suit is finally decided by the Trial Court, all interim orders become subject to review in appeal---If there is a defect in the interim order, it can be reviewed and scrutinized at the stage of the final appeal, as the first appeal is considered, the continuation of the trial, and first appellate court serves as both a court of fact and law and has the authority to examine such defects at that stage---When party approaches the High Court under its constitutional jurisdiction, it is required to demonstrate that the impugned order is issued without jurisdiction as it is only then that the High Court can exercise its Constitutional jurisdiction to declare the order void---When an order has been passed while exercising discretion, the same cannot be declared by any stretch of imagination to be without jurisdiction---Petitioner (defendant/father), prima facie, being dissatisfied with the quantum of interim maintenance having been provided to his minor children, had filed the constitutional petition---Determination of adequacy or inadequacy of the quantum of maintenance would certainly require factual inquiry and evidence, which practice cannot be carried out by the High Court while exercising powers under Art. 199 of the Constitution---Constitutional petition filed by defendant/father, being non-maintainable, was dismissed, in circumstances.

Rashid Baig and others v. Muhammad Mansha and others 2024 SCMR 1385; Shameneh Haider v. Haider Ali Khan 2018 CLC Note 43 Sindh; Dr. Samina Anayat v. Additional District Judge and others 2018 MLD 448; Tahir Ayub Khan v. Ms. Alya Anwar and another 2015 YLR 2364; Syed Mohsin Shah v. Mst. Momal Aftab and another 2013 MLD 1269; Ameer Mehmood Hussain v. Naeha Aamer Sayad and 2 others 2011 MLD 1105; Muhammad Sabir v. Mst. Azra Bibi and 2 others 2011 CLC 417 and Syed Sagheer Ahmed Naqvi v. Province of Sindh 1996 SCMR 1165 ref.

Akhlaq Hussain Chishti for Petitioner.

Zahid Ullah for Respondents Nos. 2 to 5.

2025 C L C 1036

[Islamabad]

Before Miangul Hassan Aurangzeb and Arbab Muhammad Tahir, JJ

M. B. JAVED AWAN and another ---Appellants

Versus

MUHAMMAD TAHIR NIZAMI and 3 others ---Respondents

I.C.A. No. 373 in W.P. No. 2705 of 2023, decided on 2nd December, 2024.

Unani Ayurvedic and Homeopathy Practitioners Act (II of 1965)---

----Ss. 9(3) & 9(5)---Unani Ayurvedic and Homeopathy System Medicine Rules, 1980, Rr. 15 & 18---National Council for Homeopathy (NCH) elections---Eligibility of members to contest the election---Determination---Re-election prior to expiry of terms of office of members---Requirement---Authority of Federal Government or NCH to annul existing valid election schedule or issue a new election schedule---Scope---Resumption of election from the initial stage---Legality---Contention of the appellants was that with the rescheduling of elections with the approval of Federal Government they had become eligible for contesting the election for the reason that their term of office of members had expired, thus, being no more members of the NCH, they had become eligible to contest the elections---Validity---Election schedule initially issued, under which the last date for the filing of the nomination papers was 27.08.2023, was sacrosanct and could not have been undone or replaced by an altogether new schedule by NCH---Requirement under R. 18 of the Unani Ayurvedic and Homeopathy System Medicine Rules, 1980 (Rules), for the elections of the Council to be held "not less than three months preceding the date on which the term of the members of the Council is due to expire" was reinforced by the insertion of S. 9(5) through Ordinance No. LXI of 2002, which was required to be enforced strictly---Appellants filed their nomination papers when they were indeed members of the Council as the term for which they were elected had not expired, thus, in terms of Ss. 9(3) and (5) of the Unani Ayurvedic and Homeopathy Practitioners Act,1965 (Act), they were not eligible to contest the elections and the Single Judge-in Chambers correctly held that their nomination papers were wrongly accepted by the Returning Officer---Issuance of a new election schedule was not just a clear violation of R. 18 of the Rules and Ss. 9(3) and 9(5) of the Act but would have the effect of making the appellants (who were ineligible to be candidates in the election on the date when they first filed their nomination papers) to become eligible---Under the new schedule, the last date for the filing of the nomination papers was 09.10.2024 and by that date, the term for which the members of the Council were elected, had expired and on the basis of such expiry the erstwhile members of the Council asserted their eligibility for participation in the elections under the new schedule---There was no provision in the Act or the Rules made thereunder which either empowered the Federal Government or NCH to annul the election process after the candidates had filed their nomination papers and issue a new election schedule---Ineligibility of the appellants when they first filed their nomination papers could not be cured by the issuance of a new election schedule---Division Bench of High Court did not suspend the operation of the judgment passed by the Single Judge in Chambers, and NCH was bound to show compliance with the said judgment by initiating the process of the elections "from the stage from which the process was suspended" by the Judge-in-Chambers---By issuing an altogether new schedule, NCH showed contumacious disregard to the directions in the said judgment---Intra Court appeals were dismissed declaring the issuance of an altogether new schedule to be unlawful and in violation of Ss. 9(3) and 9(5) of the Act read with R. 18 of the Rules, and NCH was bound to proceed with the election process from the stage it was halted.

Suo Moto Case No. 8 of 2018 regarding dual nationality of parliamentarians PLD 2019 SC 201; Muhammad Tajammal Hussain v. Shoukat Mahmood PLD 2007 SC 277 and Muhammad Faisal Vawda v. Election Commission of Pakistan 2023 SCMR 370 rel.

Muhammad Shoaib Shaheen and Muhammad Umair Baloch for Appellants (in ICAs Nos. 373 and 374 of 2023 as well as for Respondents Nos. 13 and 14 in W.P. No. 3176 of 2024 and in C.M. No. 2895 of 2024 in W.P. No. 2967 of 2024 and C.M. No. 2990 of 2024 in W.P. No. 3117 of 2024).

Ch. Imtiaz Ahmed and Qazi Jahanzeb Gul Qureshi for Appellants (in ICAs Nos. 382 to 386 of 2023 as well as Respondent No. 11 in W.P. No. 3176 of 2024 and Respondent No. 3 (in W.P. No. 2967 of 2024).

Mudassar Khalid Abbasi and Shah Khalid for Petitioners (in W.P. No. 2967 of 2024.)

Qaiser Abbas for Petitioners (in W.P. No. 3117 of 2024) and Respondent No. 1 (in ICA No. 386 of 2023).

Sher Afzal Khan Marwat, Haider Khan, Ch. Osama Tariq for Petitioners (in W.P. No. 3176 of 2024) and Respondent No. 1 (in ICA No. 373 of 2023).

Azmat Bashir Tarar, Assistant Attorney-General, Ashfaq Ahmad, Deputy Director, Qamar Mehmood Chaudhry, Deputy Director (Legal) and Muhammad Aftab Dogar, Ministry of NHSR&C for Respondents.

Shehryar Hassan and Saqib Nafees, Advocates along with Aamir Nadeem Ramay, Registrar, NCH for Respondents.

Humble Murad Siddiqui and Barrister Masood Siddiqui for Respondent No. 5 (in W.P. No. 3176 of 2024).

2025 C L C 1070

[Islamabad]

Before Khadim Hussain Soomro, J

FARHAT NAZIR and 4 others ---Petitioners

Versus

FAWAD AHMAD and 2 others ---Respondents

Civil Revision No. 24 of 2025, decided on 13th March, 2025.

Civil Procedure Code (V of 1908)---

----O. XXII, R. 1 ---Preliminary decree, passing of---Suit, withdrawal of---Plaintiff's right to withdraw suit after passing of preliminary decree---Scope---Withdrawal of suit for partition was denied by the Trial Court on the ground that preliminary decree had already been passed---Whether once a preliminary decree has been passed in a suit, the suit can be allowed to be withdrawn or not?---Held, that it was an incontrovertible and well-established principle of law that the plaintiff has an unqualified right to withdraw the suit at any stage of the proceedings---Imperatively , in assessing the propriety of the plaintiff's exercise of the unqualified right to withdraw a suit, the Court must refrain from imposing restrictions that would undermine, curtail, obstruct, or nullify the statutory entitlement conferred upon the plaintiff---The judicial authority must, in all such instances, acknowledge the plaintiff's absolute prerogative where no prejudice is caused to any party---The underlying objective is to ensure that such unfettered rights are exercised in a manner with the equitable dispensation of justice rather than in a way that extinguishes the legally vested rights of the plaintiff---Order XXIII, Rule 1 of the Civil Procedure Code, 1908, expressly confers upon the plaintiff an unequivocal right to withdraw the suit at any stage subsequent to its institution, whether against all or any of the defendants---Said prerogative extends to the withdrawal or abandonment of either the entire claim or any portion thereof---However, said general principle becomes inapplicable in instances where a preliminary decree has been passed and, consequently, third-party interests have crystallized that would be prejudicially affected by such withdrawal; in such contingencies, the exercise of the right to withdraw is contingent upon obtaining consent from such affected third parties---Plaintiff retains an unfettered right to withdraw the suit in certain categories of suits or proceedings where both plaintiff and defendant may potentially be entitled to relief---In the present case, after the passing of the preliminary decree and after submission of detailed report of Local Commission, which was objected to by the defendants/petitioners, the Trial Court had ordered the auction of the suit-property; however, meanwhile the plaintiff and the defendants entered into a compromise, and a Family Settlement Deed was executed among them and the same was brought on the record---Said compromise deed transpired that both parties, i.e. the plaintiff and the defendants, did not wish to proceed with the matter further due to a family settlement---No doubt , the preliminary decree created a right in favour of parties, however, both the parties did not want to enforce the same through the Court proceedings, instead they preferred to get their matter settled through family settlement---Persons united by lineal descent from a common progenitor or by proximate consanguinity had executed a family settlement deed with the aim and objective of amicably resolving existing controversies with the intention of preserving domestic tranquility---A family settlement constitutes an arrangement whereby cognate kindred mutually undertake to compose their differences and terminate existing disputes through permanent adjustment---Such concordats are designed to establish familial harmony and reciprocal benevolence, thereby, securing domestic peace---The judiciary accords particular sanctity to such familial arrangements and sustains their validity when concluded with bona fide intention---This jurisprudential principle has evolved through prolonged adjudicatory recognition as an efficacious instrument to deter litigiousness motivated by avarice, particularly in matters concerning the distribution of hereditary estates---High Court set-aside the impugned order; consequently, the suit filed by the plaintiff stood dismissed as withdrawn in terms of O. XXIII, R. 1 of the Civil Procedure Code, 1908---Revision was allowed accordingly.

PLD 2010 SC 913; 1992 SCMR 485; Hulas Rai Baijnath v. K. Bass and Co. Limited AIR 1963 Allahabad 368; 1996 SCMR 1433; PLD 1988 Karachi 560 and Bashir Ahmed (deceased) through his legal heirs and others v. Nazir Ahmed and others 2024 SCMR 1984 ref.

M. Shahzad Siddique for Petitioners.

Ch. Ali Abbas for Respondent No. 3 and Ms. Shoeba Akhtar for CDA.

2025 C L C 1281

[Islamabad]

Before Inaam Ameen Minhas, J

Messrs KARSAZ (PVT.) LIMITED through Duly Authorized representative ---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Commerce and 4 others ---Respondents

Writ Petition No. 3578 of 2024, decided on 9th April, 2025.

(a) Public Procurement Rules, 2004---

----Rr. 34 & 48(7)---Constitution of Pakistan, Art. 199---Procurement process, challenging of---Tender for procurement of explosive detection system at an international airport---Technical evaluation of bids, grievance against---Petitioner challenged the dismissal of its appeal by the Public Procurement Regulatory Authority (PPRA) against the rejection of its grievance over a tender for the procurement of Explosive Detection Systems (EDS) floated by respondent No. 4---Although petitioner and another bidder were both technically qualified, petitioner objected to the technical evaluation, claiming irregularities, lowered specifications, and favoritism towards the other bidder---The grievance was rejected by the GRC and appeal against it was dismissed by PPRA which was challenged through the present Constitutional petition---Held: The entire evaluation process was carried out transparently, ensuring the petitioner had full and fair opportunity to participate and raise objection if any---The petitioner submitted all required documents and was given an adequate opportunity to demonstrate its technical qualifications per the prescribed parameters---Upon thorough scrutiny, both the petitioner and respondent No. 5 (the competitive bidder) were found technically compliant and qualified---Although the petitioner raised objection to the technical evaluation report, a detailed examination of the record revealed that the petitioner failed to produce any convincing or credible evidence to establish that the procurement process was tainted with bias, arbitrariness, or discrimination---Therefore, the petitioner's challenge to the technical evaluation report was devoid of merit and unsustainable in law---Petitioner could not take any further new grounds through present Constitutional petition which were not taken in the proceedings before the forums below as such practice was not allowed in the Constitutional jurisdiction---Petition was dismissed, in circumstances.

(b) Public Procurement Rules, 2004---

----Rr. 34 & 48(7)---Procurement process, challenging of---Tender for procurement of explosive detection system at an international airport---Technical evaluation of bids challenged---Mere dissatisfaction with the evaluation result, without demonstrating any procedural irregularity, violation of rules, or mala fide intent, cannot render a lawfully conducted procurement process invalid---Held: The decision of respondent No. 4 to proceed with the third tender process was neither arbitrary nor unjustified but in line with the guiding principles of Public Procurement Rules, 2004, specifically R. 34 which allowed the procuring agency to revise specifications, evaluation criteria or any other condition for bidders as deemed necessary for the purpose of fair competition and efficient use of public funds---Petition was dismissed, in circumstances.

(c) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of the High Court---Scope---Raising of entirely new grounds before the High Court is not allowed if such grounds were not taken before the lower forums---Principle---A party cannot be permitted to raise entirely new grounds for the first time before the High Court, which were neither pleaded nor agitated before the forums of original jurisdiction or the appellate forums provided under the applicable statutory framework---This principle aims to ensure procedural fairness, prevent prejudice to the other party and uphold the sanctity and effectiveness of the grievance redressal mechanism---Held: The petitioner in the present case, having consciously participated in the grievance proceedings and the appellate process without raising the specific objections raised in the present writ petition, could not be allowed to circumvent the established procedure and expand the scope of the writ jurisdiction by introducing fresh grounds at this belated stage---Petition was dismissed, in circumstances.

Pakcom Limited v. Federation of Pakistan PLD 2011 SC 44; Nasir Ahmad Shaikh v. Nahid A. Shaikh 1986 SCMR 1621 and Abdul Sattar v. Additional District Judge, Rawalpindi 1984 SCMR 925 rel.

Akhtar Iqbal Puri v. Settlement Commissioner, Lahore PLD 1977 Lah. 249 ref.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Restriction of raising a new plea before the High Court---Waiver and estoppel---Approbate and reprobate---Principles---Any plea not raised before the relevant forum or the appellate authority will be deemed to have been waived and cannot be permitted to be raised directly before the High Court in the exercise of its Constitutional jurisdiction---Waiver is an intentional and conscious relinquishment of a known right---It may be by a positive act of relinquishment or it may be inferred from the conduct of the party---Waiver is an intentional relinquishment of known right and unless there is cogent evidence reflecting the respondent's conduct clearly indicative of abandonment of his right he cannot be said to have deliberately foregone his such right---Waiver and estoppel, in legal parlance, are inter-related and complementary inter se---It is a trite principle of law that a party is bound by its conduct---Where the principle of estoppel is pressed into service on the basis of some admitted/undisputed facts of the case, a party is bound by its pleadings and conduct, hence, at any later stage, it cannot turn around to wriggle out from the consequence of such admission and conduct of submitting to the jurisdiction of such authority---In the case at hand, besides the principles of waiver and estoppel, the doctrine of approbate and reprobate was also applicable---The maxim qui approbat non-reprobat (one who approbates cannot reprobate) provides that a person taking advantage under an instrument which both grants a benefit and imposes a burden cannot take the former without complying with the latter---This doctrine upholds the sanctity of procedural fairness by disallowing inconsistent positions within the same proceedings---Petition was dismissed, in circumstances.

Jam Pari v. Muhammad Abdullah 1992 SCMR 786 and Combind Investment (Pvt.) Ltd. v. Wali Bhai and others PLD 2016 SC 730 rel.

Raja Muhammad Ali for Petitioner.

Faisal Irfan, Deputy Attorney General along with Abdul Nabi, Director Legal and Aitezaz Rashid, Assistant Legal PPRA for Respondents Nos. 1 and 3.

Muhammad Waqar Rana and Khalil Khan Sahibzada for Respondent No. 4.

Ali Raza, Hamza Siddiqui and Sidharth Rashid Raza for Respondent No. 5.

2025 C L C 1298

[Islamabad]

Before Tariq Mehmood Jahangiri, J

NAHEED SHOUKAT MALIK (LATE) through legal heirs ---Appellant

Versus

Malik MOHSIN RAZA and 2 others ---Respondents

Regular First Appeal No. 315 of 2024, decided on 8th May, 2025.

(a) Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahdat (10 of 1984), Arts.79 & 81---Suit for specific performance of agreement to sell---Counter suit for cancellation of agreement to sell---Requirement of producing two attesting witnesses, exception to---Scope---Where document is admitted by the executant himself the examination of attesting witnesses is not mandatory---No relief can be granted merely on the basis of pleadings---Deceased-vendor, mother of the appellants, was the owner of a house and on 26.03.2022, she entered into an agreement to sell the property to respondent No.1 (vendee), for Rs. 58,000,000/-, out of which Rs.500,000/- was paid as earnest money and balance was to be paid at the time of transfer---Deceased-vendor failed to transfer the property despite repeated requests---Respondent No.1 (vendee) filed suit for specific performance, possession, and permanent injunction---In retaliation, deceased-vendor filed a suit seeking declaration, cancellation of agreement, and injunction, alleging the agreement was forged and manipulated---After a consolidated trial of both suits the trial court decreed the suit for specific performance in favor of respondent No.1 (vendee) and dismissed the appellant's (vendor's) suit---Held: It was established that execution of agreement was admitted by the appellants at different stages, so there was no need to produce the two witnesses under Art. 79 of the Qanun-e-Shahadat Order, 1984---Article 81 of the Qanun-e-Shahadat Order, 1984, was relevant in this regard being an exception to the general rule that where a document was required by law to be attested the same could not be used in evidence unless two attesting witnesses were called for the purposes of proving its execution---The simple reading of Art. 81 of Qanun-e-Shahadat Order, 1984, showed that where the execution of a document was admitted by the executant himself, the examination of attesting witnesses was not necessary---It was contended by appellants that as respondent No.1/ plaintiff failed to prove his case as per law, therefore, the appellants/ defendants opted not to produce any evidence---Without producing the evidence, no relief can be granted merely on the basis of the contents of written statement---Pleadings were not evidence by themselves and the statements of a defendant in written statement could not be used as evidence, without the examination of the concerned party in its support---Suit filed by respondent No. 1 was rightly decreed by the court below---The appeal was dismissed, in circumstances.

Muhammad Afzal (Decd.) through L.Rs. and others v. Muhammad Bashir and another 2020 SCMR 197; Nazir Ahmed v. Muzaffar Hussain 2008 SCMR 1639; Abdul Majid v. Syed Muhammad Ali Shamim and 10 others 2000 SCMR 1391; Muhammad Akram and another v. Mst. Farida Bibi and others 2007 SCMR 1719 and Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236 rel.

Manzoor Hussain Khan v. Mst. Asia Begum and 21 others 1990 CLC 1014 ref.

(b) Pleadings---

----Pleadings alone do not constitute evidence---Unsubstantiated pleadings have no evidentiary value---Pleadings of parties are not substantive piece of evidence unless and until the averments made in the pleadings are proved from the evidence in court or admitted by the other party.

Abdul Majid v. Syed Muhammad Ali Shamim and 10 others 2000 SCMR 1391; Muhammad Akram and another v. Mst. Farida Bibi and others 2007 SCMR 1719 and Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236 rel.

Naseer Anjum Awan for Appellant.

Ch. Kamil Hayat and Mehmood Sadiq Khokar for Respondent No. 1.

Raja Muhammad Masood for Respondents Nos. 2 and 3.

2025 C L C 1328

[Islamabad]

Before Khadim Hussain Soomro, J

MUHAMMAD IQBAL HUSSAIN ---Petitioner

Versus

MINISTRY OF INTERIOR and 5 others ---Respondents

W.P. No. 54 of 2025, decided on 29th April, 2025.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Alternate remedy, availability of---Principles---Adequate remedy---Meaning---Constitutional relief not available where statutory remedy exists ---Doctrine of exhaustion of remedies---Extraordinary remedy under constitutional jurisdiction of High Court---Scope----Computerized National Identity Card (CNIC) of the petitioner was blocked on the direction of the Executing Court---The Executing Court issued the order directing NADRA (Respondent No.2) to block the petitioner's CNIC---The petitioner did not challenge the order blocking CNIC before the High Court---The petitioner instead of approaching the Trial Court invoked constitutional jurisdiction of the High Court---Held: The writ jurisdiction of the High Court, being an extraordinary remedy, could not be invoked as a panacea for all grievances, particularly where an equally efficacious, alternate, and adequate statutory remedy existed---The doctrine of exhaustion of remedies operated as a jurisdictional bar, precluding litigant from resorting to constitutional remedies under Art. 199 of the Constitution without first availing themselves of the statutory mechanisms expressly provided by law---The underlying rationale of this doctrine was to prevent litigants from circumventing established statutory frameworks, thereby ensuring that the extraordinary writ jurisdiction of the High Court was not diluted into an ordinary appellate forum---The term 'adequate remedy' signified a remedy that was not merely theoretical but was, in fact, efficacious, expeditious, convenient, and effectual in redressing the aggrieved party's grievance---Thus, the discretionary exercise of writ jurisdiction must remain an exception rather than the rule, reserved only for cases where no equally effective alternative exists---The petitioner had failed to establish grounds warranting indulgence of High Court under Art. 199 of the Constitution, hence, under the circumstances the constitutional petition was dismissed.

Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Principle of laches---Applicability---Delay of one year and five months---Courts favor timely assertion of rights---Relief denied to indolent litigants---Laches in service matters---Scope---Distinction from ordinary litigation---Constitutional jurisdiction and its discretionary nature---Scope---The constitutional petition for unblocking the Computerized National Identity Card (CNIC) was filed by petitioner after a lapse of one year and five months, regarding which the counsel had given no reasonable explanation, hence the same was hit by laches---In service matters the concept of laches was different from that in ordinary litigation---Similarly, if the constitutional petition remedy is invoked within a reasonable timeframe, interference may be declined on the grounds of laches---It is inherent in the doctrine that procrastination undermines equity, a principle favoring vigilant and not indolent---Laches, in its elementary sense, signified a failure to undertake actions that ought to have been performed within a reasonable temporal framework---The assessment of laches in a constitutional petition was invariably contingent upon the conduct exhibited by the individual seeking constitutional recourse, but in the instant case, the counsel for the petitioner could not justify the delay in filing the petitions---The concept of laches was not an abstract or technical rule---It applied when it would be unfair to grant a remedy because one party's actions could be seen as a waiver of that remedy or because one party's actions and indifference put the other party in an unreasonable position to assert that remedy later on---Two crucial factors in these cases were the duration of the delay and the nature of the acts done during that time, which could impact both parties and create a balance of justice or injustice regarding the remedy---The petitioner had failed to establish grounds warranting indulgence of High Court under Art. 199 of the Constitution, hence, under the circumstances the constitutional petition was dismissed.

M.H. Mirza v. Federation of Pakistan through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 2 others 1994 SCMR 1024; Umar Baz Khan v. Syed Jehanzeb and others PLD 2013 SC 268; Farzand Raza Naqvi and others v. Muhammad Din through Legal Heirs and others 2004 SCMR 400; State Bank of Pakistan v. Imtiaz Ali Khan and others 2012 SCMR 280; 2012 P.L.C. (C.S.) 218 and Lindsay Petroleum Company v. Hurd 1874 L.R. 5 PC 221 rel.

Asghar Khan and others v. Province of Sindh and others 2014 P.L.C. (C.S.) 1292 ref.

Malik Muhammad Ashfaq for Petitioner.

Azmat Bashir Tarar, Assistant Attorney General for Respondents.

2025 C L C 1389

[Islamabad]

Before Khadim Hussain Soomro, J

AFZAAL AHMED ---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary of Interior, Islamabad and others ---Respondents

Writ Petition No. 653 of 2025, decided on 14th April, 2025.

(a) Passports Rules, 2021---

----R. 22(3)(b)---Constitution of Pakistan, Art. 199---Blacklisting of passport---Constitutional jurisdiction of High Court---Scope---Maintainability---Alternate remedy, availability of---Doctrine of exhaustion of remedies bars writ where statutory remedy is adequate---However, doctrine of exhaustion of remedies, not absolute---Exceptions to doctrine of exhaustion of remedies---Structural absence or failure of remedy due to delay/inefficacy---Exception to the principle of exhaustion of remedies, discussed---Circumstances where Constitutional jurisdiction can be invoked, discussed --- Legal question which came up for determination before the High Court was as to 'whether the constitutional jurisdiction of the High Court under Art. 199 of the Constitution was invokable in circumstances where the statutory remedy under R. 22(3)(b) of the Passports Rules, 2021, though ostensibly available, was rendered nugatory due to denial of notice, hearing, and inordinate delay by the competent authority'---Brief facts of the case were that the petitioner was booked in FIR No. 275 of 2011 and later joined trial proceedings---Due to non-availability of the star witness, the trial was adjourned sine die and the petitioner was released on bail---Despite not being an absconder, the petitioner's passport was blacklisted by the respondents without notice or lawful justification---The petitioner approached the High Court through constitutional petition seeking removal of his name from the blacklist/Passport Control List (PCL)---The respondent (Federation of Pakistan) argued that the petitioner had an alternate efficacious remedy of applying before the Review Committee under R. 22(3)(b) of the Passports Rules, 2021---It was revealed that although the petitioner had filed such an application, no notice was ever issued nor was a hearing provided to him---The petitioner invoked writ jurisdiction under Art. 199 of the Constitution---Held: The writ jurisdiction of the High Court, being an extraordinary remedy, could not be invoked as a panacea for all grievances, particularly where an equally efficacious, alternate, and adequate statutory remedy existed---The doctrine of exhaustion of remedies operated as a jurisdictional bar, precluding litigants from resorting to constitutional remedies under Art. 199 of the Constitution without first availing themselves of the statutory mechanisms expressly provided by law---The underlying rationale of this doctrine was to prevent litigants from circumventing established statutory frameworks, thereby ensuring that the extraordinary writ jurisdiction of the High Court was not diluted into an ordinary appellate forum---However, where the statutory procedure for obtaining relief proves unduly cumbersome, or where the attendant delay and expense would either render the ultimate remedy ineffective or defeat its very purpose, then exercise of extraordinary writ jurisdiction under Art. 199 of the Constitution could be invoked---The "Doctrine of Exception" in constitutional intervention remains permissible in two scenarios: (1) structural absence or substantive nullity of alternative remedies, or (2) extraordinary circumstances where normally adequate remedies prove insufficient due to case-specific factors---This doctrine of exception operates as a narrowly tailored safety valve, requiring compelling justification to prevent abuse while ensuring access to justice when statutory channels fundamentally fail---Instant writ petition was disposed of with a direction to respondent No. 3 (D.G. Immigration and Passport) to decide the application of the petitioner, within thirty (30) days.

Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 ref.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Discretionary and exceptional power---Adequate remedy---Adequacy of alternate remedy---Scope---Adequate remedy must be real and effective---Twofold test under Art. 199 of the Constitution, discussed---Remedy cannot be deemed adequate if it fails to match the nature or extent of grievance---The term 'adequate remedy' signifies a remedy that is not merely theoretical but is, in fact, efficacious, expeditious, convenient, and effectual in redressing the aggrieved party's grievance---The adequacy of an alternate remedy under Art. 199 of the Constitution hinges on two core considerations: substantive sufficiency and comparative efficacy---A remedy cannot be deemed adequate if it fails to provide relief matching the nature and extent of the grievance.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Disputed questions of facts---No writ where disputed facts require evidentiary inquiry---Constitutional jurisdiction of High Court not a shortcut to bypass statutory mechanisms---Constitutional courts not fact-finding tribunals---Extraordinary jurisdiction cannot supplant statutory mechanisms---Writ jurisdiction, being discretionary and extraordinary in nature, could not be invoked to supplant statutory mechanisms designed for the resolution of factual disputes requiring the examination of evidence---Thus, the discretionary exercise of writ jurisdiction must remain an exception rather than the rule, reserved only for cases where no equally effective alternative exists---Superior courts must refrain from adjudicating disputed questions of fact that necessitate evidentiary inquiry---This principle, firmly entrenched in judicial discipline, ensures that constitutional courts exercising extraordinary jurisdiction do not assume the role of fact-finding tribunals---The rationale underlying this restraint was put in place to preserve the integrity of specialized statutory forums vested with the competence to examine factual controversies through proper evidentiary procedures.

State Life Insurance Corporation of Pakistan v. Pakistan Tobacco Co. Ltd. PLD 1983 SC 280 rel.

Khan Mulk Tarar for Petitioner.

2025 C L C 1435

[Islamabad]

Before Muhammad Asif, J

MUHAMMAD QADIR and another ---Petitioners

Versus

NATIONAL DATABASE AND REGISTRATION AUTHORITY (NADRA) and 2 others ---Respondents

W. Ps. Nos. 3627 and 3906 of 2023, decided on 10th April, 2025.

National Database and Registration Authority Ordinance (VIII of 2000) ---

----Ss. 14 & 18---NADRA's jurisdiction to impound, cancel or confiscate Computerized National Identity Cards (CNICs)---Scope---Digital impounding of CNICs owing to Afghan national status---Failure to verify the national status---Afghan refugees in Pakistan and their claim to Pakistani citizenship based on unverifiable documentation---The petitioners (having Afghan national status) filed constitutional petitions under Art. 199 of the Constitution against the National Database and Registration Authority (NADRA), challenging the unlawful digital impounding and blocking of their CNICs---Petitioners claimed that NADRA acted without lawful authority and failed to provide any just cause for the blockage---NADRA defended its actions by stating that petitioners failed to verify their nationality status as per the Ministry of Interior's notification dated 19.04.2017, leading to doubt about their citizenship, particularly due to Afghan heritage---Held: NADRA Ordinance, 2000 grants power to NADRA regarding issuance of Pakistan Origin Cards, Overseas Identity Cards and Alien Registration Cards, subject to conditions prescribed in the relevant provisions thereof---Importantly, Section 18 of the NADRA Ordinance, 2000 deals with the power to cancel, impound or confiscate cards issued thereunder---It provides that a card issued under the NADRA Ordinance, 2000 shall be the property of the Federal Government and may, by an order in writing under the seal of NADRA or an officer authorized by it in this behalf, be required to be returned and shall also be liable to be cancelled, impounded or confiscated by like order if there is reason to believe that the card has been obtained by a person not eligible to hold the same by posing himself as eligible; or more than one card has been obtained by the same person on the same eligibility criteria; or the particulars shown on the card have been obliterated or tampered with; or the card is forged---Said provision of NADRA Ordinance, 2000 also provides for a right of appeal to the Federal Government, with the provision of the right of hearing to the aggrieved person---Rights qua entitlement to CNIC is the subject matter of the NADRA Ordinance, 2000---The Federal Government, representing the State itself or through its instrumentalities created under the law is vested with the powers to regulate such rights and in the event of an adverse order, the aggrieved person is conferred the right to challenge the same by way of an appeal, revision or review, as the case may be---The NADRA Ordinance, 2000 provides self-contained mechanisms regarding all issues of CNICs and for this purpose, NADRA Zonal Verification Boards and the DLC (District Level Committee) are created to facilitate and streamline the verification process for various NADRA services, particularly those related to identity verification and CNIC issuance or renewal---These bodies play a crucial role in verifying the accuracy of information, reducing forgery, and ensuring the integrity of the national database---High Court directed that the petitioners to appear before the aforesaid forums which were directed to decide the cases of the petitioners within a month, after affording them opportunity of personal hearing ---In case of any adverse order, the aggrieved person(s) could file an appeal before the Federal Government within the purview of S. 18(3) of the NADRA Ordinance, 2000---Constitutional petitions were disposed of, in circumstances.

Khawaja Muhammad Imtiaz, Raja Rizwan Abbasi and Fawad Haider for Petitioners.

Nadeem Akhtar Afghan and Malik Muhammad Khalid, Law Officers, NADRA for Respondents.

2025 C L C 1490

[Islamabad]

Before Inaam Ameen Minhas, J

Mrs. ANJUM MALIK and others ---Petitioners

Versus

Mst. NEELOFER MALIK through L.Rs and others ---Respondents

Writ Petition No. 2043 of 2021, decided on 28th March, 2025.

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

----Ss. 17 & 21 & O. XVI, R. 14---Specific Relief Act (I of 1877), Ss. 42 & 54---Succession Act (XXXIX of 1925), S. 278---Suit for declaration, permanent injunction seeking administration, rendition of accounts, partition of several properties---Territorial jurisdiction---Scope---Application for summoning/calling of record filed by the respondent/plaintiff was allowed by the Trial Court---Contention of the petitioners was that such an application could not be allowed as the Trial Court had no territorial jurisdiction to adjudicate upon the suit---Validity---Suit in the Trial Court was regarding the partition of several properties situated in the territorial jurisdiction of different Courts, thus, under S. 17, C.P.C. the Trial Court had jurisdiction to entertain and adjudicate upon the suit for partition relating to all properties because these properties would be considered as a portion of the suit property---Suit for partition of the suit property (a portion of properties required to be partitioned) was based upon the cancellation of gift deed and custodian of the record of the gift deed, who had also been arrayed as defendant, did not produce the record of the gift deed, thus, it was necessary to call the record of the gift deed so as to reach a just decision in the suit---Suit for administration could be instituted within the territorial jurisdiction of any Court where any part of the deceased's estate is located, which principle was well established under the law governing civil suits and succession matters---Administration suit differs from a partition suit in legal scope and effect---While a partition suit primarily seeks the division of specific joint property among co-owners, an administration suit covers a broader scope, including the identification, valuation, management, distribution and settlement of liabilities of the deceased's estate in accordance with succession laws, thus, in view of the legal distinction between these two types of suits and the jurisdictional principles governing administration suits, the suit was rightly instituted within the appropriate jurisdiction, considering the location of the deceased's assets and the Trial Court lawfully assumed the jurisdiction---Under S. 21, C.P.C., an objection to jurisdiction must be raised at the earliest possible stage before the Trial Court and pursued diligently and in the absence of such persistent agitation, a party cannot later challenge the jurisdiction of the court after having willingly participated in the proceedings---Constitutional petition was dismissed, in circumstances.

Amjad Khan v. Muhammad Irshad (Deseased) 2020 SCMR 2155 rel.

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

----O. II, R. 2---Application for summoning/calling of record---Objection qua maintainability of such an application was raised that since the plaintiff had already filed an application for summoning record of some other properties without mentioning the record sought to be summoned in the latter application, thus, under O. II, R. 2, C.P.C., latter application was not maintainable---Validity---Order II, Rule 2, C.P.C., contains word "suit" and word "application" is not mentioned in the same, thus, the same does not apply in the case of an application.

Abdur Rashid Awan for Petitioners.

Ch. Sajid Abdullah Sraa, Ehsan Ullah Sial and Imran Khan Jadoon for Respondents Nos. 1A and 1B.

Khurram Mahmood Qureshi for Respondent No. 5.

Zulfiqar Ali Abbasi and Shahid Munir for Respondent No. 7.

Mirza Jameel Baig for Respondent No. 8-A.

Ex-parte for Respondents Nos. 2 to 6, 8-B to 8-D and 9 to 11.

2025 C L C 1516

[Islamabad]

Before Sardar Muhammad Sarfraz Dogar, CJ and Inaam Ameen Minhas, J

Mst. AREEJ SIDDIQUA KHAN through Attorney ---Appellant

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman, and 2 others ---Respondents

R.F.A. No. 181 of 2015 in C.S. No. 37 of 2006, decided on 27th January, 2025.

Specific Relief Act (I of 1877)---

----Ss. 42, 54 & 55---Civil Procedure Code (V of 1908), S. 96---Suit for declaration, permanent and mandatory injunction---Declaratory relief under S. 42 of the Specific Relief Act, 1877---Scope---Vested right in auction proceedings---Scope---Non-adherence to mandatory requirements of deposit timelines and confirmation formalities of bid---Effect---Appellant being highest bidder in auction proceedings deposited only token money of two plots and delayed payment of remaining bid money, thus, respondent-Capital Development Authority (CDA) Board confirmed one plot and cancelled the other---Appellant sought declaratory relief against the cancellation of the second plot being the highest bidder---Validity---Appellant failed to deposit 25% of the bid amount within 24 hours, as per terms and conditions of brochure of plot, thus, bid was cancelled and token money was forfeited---CDA Board being competent authority rejected the bid of second plot---Matter was again taken up by the CDA Board and after considering the matter the previous decision of the Board was upheld---Appellant's default to deposit 25% bid amount was established through un-rebutted documentary evidence, thus, after rejection of bid due to default no vested right accrued in favor of the appellant as the highest bidder in respect of second plot---Mere participation in the bidding process and being declared the highest successful bidder does not confer any vested right until the competent authority accepts the bid---Appellant did not acquire any legal title to the property in question by submitting the highest bid and the fact that the auction in her favor was not confirmed did not grant her the right to file a suit for declaration---Suit for declaration under S.42 of the Specific Relief Act, 1877, is maintainable only with respect to pre-existing rights and no suit can be filed in relation to rights that may accrue in the future---Suit of the appellant for declaration was not maintainable as the appellant had not acquired any right in the second plot---Declaration under S. 42 of the Specific Relief Act of 1877 could only be sought with respect to a right that already exists---Appeal was dismissed, in circumstances.

Munshi Muhammad v. Faizanul Haq 1971 SCMR 533; Babu Pervaiz Qureshi v. Settlement Commissioner Multan and Bahawalpur Divisions, Multan 1974 SCMR 337; Meraj Din v. Noor Muhammad 1970 SCMR 542; Director Military Lands and Cantonment Quetta Cantt. Quetta v. Aziz Ahmed 2023 SCMR 860 and Muhammad Jameel v. Abdul Ghafoor 2022 SCMR 348 rel.

Sardar Abdul Sami for Appellant.

Shaharyar Tariq for Respondents.

2025 C L C 1585

[Islamabad]

Before Mohsin Akhtar Kayani, J

NADEEM ABBAS and others---Petitioners

Versus

CHIEF COMMISSIONER, ICT, ISLAMABAD and others ---Respondents

W.P. No. 3352 of 2018 and C.M. No. 3167 of 2020 and W.P. No. 1149 of 2019 and C.M. No. 3120 of 2020, decided on 13th August, 2021.

(a) Land Records Manual---

----Paras 3.6, 3.7 & 3.11, Chapter 3---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R. 11---Constitution of Pakistan, Art. 199---Constitutional petition---Appointment of Patwaris as per Land Record Manual and policy---Exclusion of concept of test and interview in such appointments---Legality---Petitioners being holder of Patwar Certificates were aggrieved of non-inclusion of their names for the last 10 years in the list/registered maintained under Para 3.6 of Land Record Manual containing the record of qualified patwaris of Islamabad Capital Territory (ICT) and since due to inaction of the Revenue Officer they had become overage, thus, they sought relaxation in age for such appointment---Validity---Apparent mistake and negligence was on the part of administration of the ICT, who were claiming that petitioners were over age and any person, who was of more than 35 years of age, was not entitled to be enlisted in the register of patwaris---A person cannot benefit from his own wrong and giving benefit of a wrong to a wrongdoer would be against the administration of justice---Petitioners could not suffer for the wrongdoing of administration of ICT as they filed their applications before the Collector of the ICT for registration of their names in the register, but petitioners' credentials had not been verified from relevant quarter for the post of patwari, which was the primary duty of the respondents---Under rules and the procedures for appointment of the revenue staff, ICT had to promulgate their own rules for appointment of revenue staff in ICT and the basic qualification and procedure provided in Land Record Manual was strictly applicable unless the law had been changed---Any appointment contrary to the Land Record Manual or any other direction in this regard was considered to be doing of thing against the particular manner provided in the law---All the positions in district courts, district administration, ICT and local offices, whose territorial jurisdiction was only within the ICT having no nexus with provinces were considered to be local posts, which had to be filled in from all those residents of Islamabad having domiciled of ICT---Constitutional petition was disposed of with the directions to Chief Commissioner and District Collector, Islamabad, to include the names of the petitioners after necessary verification w.e.f. 2010 and also to decide their application qua age relaxation.

Ameer Taimoor and 7 others v. Government of KPK 2016 PLC (C.S.) 106; Humayun Khan v. Government of KPK 2017 PLC (C.S.) Note 17; Sakhi Jan v. Shah Nawaz 2020 SCMR 832; Islamabad Club v. Punjab Labour Court PLD 1981 SC 81; S. Masood Abbas Rizvi v. Federation of Pakistan and others 2014 SCMR 799; Muhammad Zaryab Ali v. Ministry of Religious Affairs and others 2019 PLC (C.S.) 1361 and Rashid Ameer v. Federation of Pakistan and others 2018 PLC (C.S.) 822 rel.

(b) Administration of justice---

----Where law requires doing of something in a particular manner, it has to be done in that particular manner or not to be done at all and all other modes of doing it would stand excluded.

Ajmir Shah v. Inspector General, Frontier Corps KP 2020 SCMR 2129 and Muhammad Alim Chotia v. Zafar Iqbal PLD 1999 Lahore 446 rel.

(c) Administration of justice---

----A person cannot benefit from his own wrong and giving benefit of a wrong to a wrongdoer would be against the administration of justice.

Sakhi Jan v. Shah Nawaz 2020 SCMR 832 rel.

Ch. Imtiaz Ahmad for Petitioner (in W.P. No. 3352 of 2018).

Rashid Hafeez and Khalid ur Rehman Abbasi for Petitioners (in W.P. No. 1149 of 2019).

Qazi Jahanzaib Gul Qureshi for Applicant (in C.M. No. 3167 of 2021).

Syed Muhammad Ali Bukhari for Applicant (in C.M. No. 3120 of 2020).

Raja Muhammad Aftab Ahmad, Additional Advocate General for Respondents.

Muhammad Atif Khokhar and Moneeb Ahmad, Standing Counsel along with Zahid Khan, District Collector (ADCR), ICT, Islamabad for Respondents.

2025 C L C 1636

[Islamabad]

Before Tariq Mehmood Jahangiri, J

MUHAMMAD DIN SHAHID ---Petitioner

Versus

MAQBOOL HUSSAIN AWAN and 2 others ---Respondents

Writ Petition No. 931 of 2023, decided on 22nd May, 2025.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S. 12(2)---Constitution of Pakistan, Art. 199 (1)(a)(ii)---Suit for declaration and injunction---Writ of certiorari---Ex-parte judgment and decree---Plea of fraud---Proof---Petitioner assailed ex-parte judgment and decree before High Court under Art. 199 of the Constitution---Validity---Certiorari is only available to quash a decision for an error of law---Such writ is also issued for correcting errors of jurisdiction when an inferior Court or a Tribunal acts without jurisdiction or in excess of its jurisdiction or fails to exercise its jurisdiction or where Court or Tribunal acts illegally in exercise of its undoubted jurisdiction and it decides a matter in violation of the principle of natural justice---High Court while issuing a writ of certiorari acts in exercise of supervisory and not appellate jurisdiction---High Court in exercise of writ jurisdiction does not review findings of facts reached by inferior Court or Tribunal---High Court declined to set aside ex-parte judgment and decree passed by Trial Court, as the petitioner failed to point out any error of law or absence of jurisdiction or excess of jurisdiction---Constitutional petition was dismissed, in circumstances.

Sheikh Muhammad Iftikhar Ahmad and others v. Faiz Ahmad and others 2023 SCMR 2158; Shams-ud-Din and another v. Muhammad Ali and others 2023 YLR 441; Muhammad Ibrahim Qureshi v. Muhammad Aslam and 3 others PLD 2023 Lah. 555; Murad Khan and others v. Mst. Humaira Qayyum and others 2025 SCMR 739; Gul Muhammad v. Federation of Pakistan through Ministry of Finance Department, Islamabad and 3 others 2025 PLC 30; Amjad Khan v. Muhammad Irshad (Deceased) through LRs. 2020 SCMR 2155; President All Pakistan Women Association, Peshawar Cantt v. Muhammad Akbar Awan and others 2020 SCMR 260; Chief Executive MEPCO and others v. Muhammad Fazil and others 2019 SCMR 919; Chairman, NAB v. Muhammad Usman and others PLD 2018 SC 28; Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45; Hamayun Ashraf Awan v. Bilal Faisal Amin 2024 PCr.LJ 1746; Asim Irfan Ahmad v. Additional District and Sessions Judge, Islamabad" 2023 YLR 1123; Rehan Khalid v. Mst. Uzma Nawaz 2022 MLD 272 and Mst. Naila Hameed v. Ejaz Mahmood 2022 MLD 920 rel.

Muhammad Abdul Wase for Petitioner.

Husnain Sarwar Awan, Tahir Mehmood Abbasi and Shakeel Abbas for Respondent No. 1.

2025 C L C 1682

[Islamabad]

Before Muhammad Azam Khan, J

Mst. KANIZ FATIMA and another ---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Interior and 6 others ---Respondents

Writ Petition No. 2016 of 2021, decided on 7th April, 2025.

(a) Words and phrases---

----Public purpose---Meaning.

Black's Law Dictionary 8th Edition rel.

(b) Defence Housing Authority Islamabad Act (XII of 2013)---

----Ss.3, 4, 13 & 21---Capital Development Authority Ordinance (XXIII of 1960), Ss.11 & 12---Land Acquisition Act (I of 1894), Ss. 4 & 6---Constitution of Pakistan, Art. 199---Constitutional petition---Acquisition of land---Defence Housing Authority, entitlement of---Petitioner / landowner was aggrieved of notification issued by revenue authorities to acquire land for the purpose of Defence Housing Authority (DHA) on the request of its Legal Advisor---Validity---Both the legislations i.e. Land Acquisition Act, 1894 and Capital Development Authority Ordinance, 1960 are not in conflict with each other and both the statutes can exist side by side---Capital Development Authority (CDA) is responsible for planning and development, whereas Land Acquisition Collector focuses on acquiring land for public purposes---Any changes to CDA's Master Plan requires its approval---DHA under S. 3(4) of Defence Housing Authority Islamabad Act, 2013 while designing, planning and executing a scheme in specified area, has to adhere to Master Plan of Islamabad and ensure that all public roads and paths leading to and from adjoining areas and access to graveyard, as far as possible, be maintained and no change or alteration can be made in such road, paths or access except with prior approval of the Government---Land Acquisition Collector was empowered through notification in question to acquire land under S. 4 of Land Acquisition Act, 1894---Land can be acquired under Land Acquisition Act, 1894 however, under Defence Housing Authority Islamabad Act, 2013 it is the Executive Board, which can apply to District Collector for the acquisition of land---Legal Advisor was not competent/authorized to do so under the law---According to S. 13 of Defence Housing Authority Islamabad Act, 2013 no such delegation of powers had been made to the Legal Adviser---Where a statue has provided for a particular thing to be done in a specific manner then it is to be done in that manner and the role of Courts is not designed to legislate but interpret statutes according to their ordinary and plain meaning and not to import and / or supply words or provisions, no matter how laudable and desirable it may appear to be---Constitutional petition was allowed accordingly.

Ch. Sabi Zahid v. Chief Commissioner ICT Islamabad and others W.P. No. 3372/2017; Muhammad Saqib Abbasi's case 2013 CLC 158; Army Welfare Housing Scheme and others v. Ch. Ejaz Ahmed and others I.C.A. No. 140 of 2012; Federal Government Employees Housing Foundation, Islamabad and others v. Malik Ghulam Mustafa and others 2021 SCMR 201 and Zahid Iqbal v. Hafiz Muhammad Adnan and others 2016 SCMR 430 rel.

Malik Qaiser Masood for Petitioners.

Barrister Muhammad Saad Buttar and Aamir Latif Gill for CDA, Sajid Abdullah Sraa for DHA, Muhammad Taimoor Janjua, State Counsel for Chief Commissioner Office, Islamabad, Sarfraz Rauf and Raja Zameer ud Din, Assistant Attorney Generals for Respondents.

2025 C L C 1715

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Messrs BIO LEADS (PVT.) LIMITED and others ---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice and others ---Respondents

Writ Petition No. 1586 of 2020 (and other connected Petitions), decided on 31st August, 2021.\

(a) Drug Regulatory Authority of Pakistan Act (XXI of 2012)---

----Ss. 2(xxxvi), 2(xviii) & 23---Medical Devices Rules, 2017, Rr.2(xlii), 3(a) & (b), 12(1), 21---Enlisting and registration of medical devices including the ones for in-vitro use (the "IVD medical devices"), requirement of---Regulatory domain of Drug Regulatory Authority of Pakistan (the "DRAP")---Authority of DRAP to regulate the import of IVD medical devices---Promulgation of Medical Devices Rules 2017, under Drug Regulatory Authority of Pakistan Act 2012, vires of---Petitioners were engaged in the business of importing and selling of "in-vitro diagnostic" (IVD) medical devices and challenged the inclusion of such devices within the regulatory domain of the Drug Regulatory Authority of Pakistan (DRAP) under the Medical Devices Rules, 2017, framed pursuant to S. 23 of the DRAP Act, 2012---Petitioners mainly contended that the regulatory control of DRAP over IVDs was unconstitutional, ultra vires the DRAP Act, and imposed arbitrary and financially burdensome requirements---In short, petitioners were aggrieved by the requirement for the Medical Devices Board to enlist and register medical devices including the ones for in-vitro use, and the devices which provide information by means of in-vitro examination of specimens derived from a human body---Held: As per the preamble of the DRAP Act, one of the objective of the said Act was to regulate the manufacture, import, export, storage, distribution and sale of therapeutic goods---The said Act defined "therapeutic goods" to include drugs or alternative medicine or medical devices, whereas, "medical devices" has been defined to mean medical devices as specified in Schedule-I which included instruments, medical equipment, implants, disposables and software, used mainly for the purpose of diagnosis, monitoring and treatment of diseases, whereas, IVD medical devices meant a medical device, whether used alone or in combination, intended by the manufacturer for the in-vitro examination of specimens derived from the human or animal body solely or principally to provide information for diagnostic, monitoring or compatibility purpose---Chapter-IV of the Medical Devices Rules, 2017 (Rules 2017) dealt with the subject of "enlistment and registration of medical devices"---Rules 12(1) of Rules 2017 provided that Medical Devices Board should enlist and register medical devices which included any instrument, apparatus, implement, machine, appliance, implant, reagent for in-vitro use, software, material or other similar or related article, intended by manufacturer to be used, alone or in combination, for human beings or animals for one or more of the specified purposes listed in the said Rule---Meaning given to the medical devices in paragraph 3 of Schedule-I of the DRAP Act included an IVD medical device as defined in the Medical Devices Rules, 2017---As long as a medical device was intended to be used for diagnostic monitoring or treatment of disease whether through in-vitro examination or otherwise it was subjected to regulatory oversight of the DRAP---The mere fact that any equipment or machine was intended to be used as an aid in diagnosis through in-vitro examination did not take such equipment of machine out of the meaning of a medical device or beyond the regulatory domain of DRAP---With respect to the vires of Medical Devices Rules, 2017 being promulgated under the DRAP Act, Art. 144 of the Constitution permitted the Provincial Assemblies to amend the law enacted by the Parliament pursuant to the said Article and since none of the Provincial Assemblies repealed the provision in the DRAP Act empowering to make rules, therefore, Medical Devices Rules, 2017 made under S. 23 of the DRAP Act were not ultra vires---This silence by the Provinces endorsed the view that the Medical Devices Rules, 2017 were in conformity with the Drug Regulatory Authority of Pakistan Act, 2012 which was enacted to the authority given by the Provinces to the Parliament under Art. 144 of the Constitution---Since no provision in the Medical Devices Rules, 2017 was pointed out which was in derogation of the DRAP Act, present Constitutional petitions being without merit were dismissed, in circumstances.

(b) Constitution of Pakistan---

----Arts. 142(d) & 144---Drug Regulatory Authority of Pakistan Act (XXI of 2012), Preamble---Constitution (Eighteenth Amendment) Act (X of 2010), Preamble---Drugs, medicine and medical devices, subject of---Legislative powers exercised by the Parliament---Scope and extent---Constitutionality of Drug Regulatory Authority of Pakistan Act, 2012 challenge to---Vires of law---Scope---The legislative power exercised by the Parliament under Art. 144 of the Constitution was discussed in the case reported as 'PLD 2018 Sindh 448'---After doing so and referring to the resolutions passed by the provincial assemblies authorizing the Parliament to legislate on the subject of drugs and medicines and the establishment of a regulatory authority, Sindh High Court dismissed the challenge to the constitutionality of the Drug Regulatory Authority of Pakistan Act, 2012 (the "DRAP Act")---While referring to the reported case supra the High Court in the present matter adopted the same stance as taken by the Sindh High Court by upholding the constitutionality of the DRAP Act.

Azfar Laboratories' case PLD 2018 Sindh 448; Dawakhana Hakeem's case PLD 2020 Lah. 899 and Johnson and Johnson's case W.P. No. 20263 of 2020 ref.

(c) Constitution of Pakistan---

----Arts. 142(d) & 144---Drug Regulatory Authority of Pakistan Act (XXI of 2012), Preamble---Constitution (Eighteenth Amendment) Act (X of 2010), Preamble---Medical devices, subject of---Plea that subject of medical devices could not have been legislated upon by the Parliament---Validity---Parliament was competent to legislate on the subject of medical devices which came within the meaning of drugs and medicines.

Dawakhana Hakeem's case PLD 2020 Lah. 899 and Johnson and Johnson's case W.P. No. 20263 of 2020 ref.

(d) Constitution of Pakistan---

----Arts. 142(d) & 144---Drug Regulatory Authority of Pakistan (XXI of 2012), S. 40---Legislative competence of provincial legislature to amend or repeal Drug Regulatory Authority of Pakistan Act, 2012 (the "DRAP Act")---Applicability of the DRAP Act to the Islamabad Capital Territory---Scope---Indeed the provincial legislature has the legislative competence to amend or appeal the DRAP Act to the extent to which it applies to the Province---This is explicitly provided in Art. 144 of the Constitution---As regards the applicability of the DRAP Act to the Islamabad Capital Territory, Art. 142(d) of the Constitution provides that the Parliament shall have exclusive powers to make laws with respect to all matters pertaining to such areas in the Federation as are not included in any Province---The Islamabad Capital Territory is indeed an area in Federation not included in any Province and therefore the Parliament has the exclusive powers to make laws with respect to all matters, including the regulation of drugs and medicines for such area---Insofar as the applicability of the DRAP Act to the Islamabad Capital Territory is concerned, it is only the Parliament that can amend or repeal the said Act.

(e) Interpretation of statutes---

----Rules made under a statute---Scope---Rules shall always be consistent with the statute and no rule shall militate or render the provisions of a statute ineffective---The test is whether the provisions of the statute and that of rules can stand together---The main object of the Rules is to implement the provisions of the statute---Rules cannot enlarge the scope of an Act under which the same have been framed---Rules and regulations are subordinate and delegated legislation deriving authority and legal cover from the provisions of the statute---The authority of the executive to make rules and regulations in order to effectuate the policy and intention of the legislature must be exercised within the limits of mandate given to the rule-making authority and the rules framed under the enactment must be consistent with the provisions of the said enactment---In case of conflict between the statute and the rules, the rules must give way to the provisions of the statute---Rule should not be repugnant to the enactment under which they are made since they have the same force as the provisions of the statute under which they are framed---Rules being subordinate legislation can neither override nor over-reach a provision of the substantive statute but if the rules explain the latter and provide aid to facilitate its understanding, it shall, be quite legitimate to read and refer to them, especially when they, on all counts, conform to and are subordinate to the substantive statute.

Suo Motu case No. 13 of 2009 PLD 2011 SC 619 rel.

Petitioners by:

Rana Abid Nazir Khan, Raja Bilal Mustafa, Ms. Nadia Asghar, Rana Mehboob Ahmad, Ch. Shahid Mehmood (in W.Ps. Nos. 1586, 1670, 1863, 2162, 2357, 2569, 2970 and 3961 of 2020, 310, 580, 634, 674, 772, 836, 899, 1006, 1317, 1400, 1569, 1841, 1951, 1952, 2134 and 2337 of 2021).

Haroon Duggal, Subhe Nasib (in W.Ps. Nos. 2767, 3350, 3351, 3460 and 3593 of 2018).

Syed Zameer Hussain Shah (in W.Ps. Nos. 1722 and 2156 of 2020).

Sikandar Naeem Qazi (in W.P. No. 1764 of 2020).

Khawaja Manzoor Ahmad (in W.Ps. Nos. 1843 of 2020 and 1007 of 2021).

Raja Mumtaz Ali (in W.Ps. Nos. 3047 of 2020 and 1007 of 2021).

Sardar Haseeb Ahmed (in W.P. No. 1956 of 2021).

Syed Iftikhar Gillani and Barrister M. Saad Butter (in W.P. No. 4736 of 2018).

Zia-ur-Rehman (in W.Ps. Nos. 2148 and 2198 of 2020).

Muhammad Umar Khan Verdaq (in W.P.No. 2258 of 2020).

Afzal Awan and Nazma Parveen (in Crl. Org. No. 88 of 2021 in W.P. No. 310 of 2021).

Nasrum Minallah (in W.P. No. 1349 of 2021).

Atta Ullah Hakim Kundi (in W.P. No. 1431 of 2021).

Qazi Isaac Ali (in W.P. No. 1650 of 2021).

Raza Ali Shah (in W.P. No. 3582 of 2020).

Ch. Muhammad Tariq Ali Goheer (in W.P. No. 4490 of 2018).

Respondents by:

Arshid Mehmood Kiani, Deputy Attorney-General.

Barrister Ahmed Pervaiz, Barrister Ehsan Ali Qazi, Sifat Ullah, Advocates and Hafiz Bilal Bin Akbar, Assistant Director (Legal), DRAP.

Binyamin Abbasi MCC (in W.Ps. Nos. 1670, 1722, 1843, 1863, 2148, 2156, 2357, 2970, 3047 of 2020, 310, 580, 634, 836, 1349 and 1431 of 2021).

Dr. Farhat Zafar for MCC Customs Appraisement (East), MCC Port Qasim Karachi and MCC Islamabad (in W.Ps. Nos. 2569 and 2970 of 2020, 310, 580, 634, 674, 772, 899, 1006, 1349 and 1431 of 2021).

Sajid Mahmood Baig for Respondent No. 6 (in W.P. No. 2198 of 2020).

Ch. Muhammad Nawaz for CC Appraisement (West) Karachi (in W.P. No. 674 of 2021).

Ch. Muhammad Zafar Iqbal (in W.Ps. Nos. 2198 of 2020, 634, 772 and 899 of 2021).

Arshad Mehmood (in W.P. No. 2148 of 2020).

Mrs. Naziran Malik, Advocate for Customs (in W.P. No. 1764 of 2020).

Irshad Ahmad Zada Mohammadzai for Respondent No. 4 (in W.P. No. 2258 of 2020).

2025 C L C 1

[Sindh]

Before Muhammad Shafi Siddiqui, CJ and Jawad Akbar Sarwana, J

PAKISTAN PHARMACEUTICAL MANUFACTURERS' ASSOCIATION through Execution Director / Secretary General and others---Petitioners

Versus

PROVINCE OF SINDH through Secretary Health and 3 others---Respondent

Constitution Petitions Nos.D-3906 of 2012 and D-2304 of 2013, decided on 22nd August, 2024.

Sindh Drugs Rules, 1979---

----R.18(ie), Forms 6, 7, 7-A, 8 & 9---Controlled substances---Restricted sale---Petitioner / Pakistan Pharmaceutical Manufacturers Association was aggrieved of notification in terms of R. 18(ie) of Sindh Drug Rules, 1979, which restricted sale of drugs and controlled substances only to holder of valid drug license on Form 7-A; whereas in terms of clause (if) the same shall be sold to licensed retailer on Form-6; or licensed pharmacy on Form-8; or the one who had a license on Form-9; and had specifically excluded sale of such drugs and controlled substances from one Form-7 license holder to another Form-7 or Form-7A license holder---Legality---There is an afflux of spurious and substandard drugs not only in Pakistan but at international level---Globally, every country is victim of substandard or spurious drugs, which results in life threatening issues, financial loss of consumer and manufacturer and loss in trust on health system---It is responsibility of all and not the government alone---Petitioner as the association representing pharmaceutical companies etc. also had great responsibility on its shoulders---Petitioner / Association should approach the authorities under the hierarchy of drug regulators for a feedback rather than directly approaching Courts---Authorities attempted to carve out a policy in consultation with all the stakeholders, including petitioner / Association as well---This menace of spurious and substandard drugs could efficiently be dealt by effective legislation which was attempted---High Court declined to interfere in the matter as there was nothing which could infer that any harassment was being caused to petitioner / Association or its members---No fundamental right as to trade and business was infringed due to amendments in question which did not restrict business of sale of drugs---For regulating sale and stock of drugs, a check and balance was put in safeguarding interest of poor people/patients---Such amendments were to avoid sale of spurious and substandard drugs and to minimize miseries of people already suffering from certain diseases---Constitutional petition was dismissed, in circumstances.

Rashid Mureed for Petitioner (in C.P. No.D-3906 of 2012).

Petitioner not represented (in C.P. No.D-2304 of 2013).

Saifullah, Additional Advocate General Sindh for Respondent No.1.

Sajid Ali Memon, Drug Inspector in person for Respondents Nos.2 and 3.

2025 C L C 40

[Sindh (Hyderabad Bench)]

Before Muhammad Faisal Kamal Alam, J

HAJI and another---Applicants

Versus

SHABBIR AHMED and others---Respondents

Civil Revision Application No. 33 of 2011, decided on 30th July, 2024.

Specific Relief Act (I of 1877)---

----Ss.12 & 22---Contract Act (IX of 1872), Ss.51 & 54---Suit for specific performance of contract of sale---Reciprocal promise---Failure to prove any subsequent payment qua balance sale consideration except payment of earnest money---Effect---Petitioners/subsequent purchasers claimed to be bona fide purchaser for value without notice and were in possession of suit property---Suit was filed by respondent/plaintiff seeking specific performance of agreement to sell earlier executed in his favour---Trial Court dismissed the suit but Lower Appellate Court decreed the same in favour of respondent/plaintiff---Validity---Respondent/plaintiff acknowledged that no notice was published for the information of general public about purchase of suit property---Petitioners/subsequent purchasers proved that they were bona fide purchasers for value without notice and possession of suit land was handed over to them by the owner/seller---Respondent/plaintiff failed to prove that except payment of earnest money any subsequent payment was made by him towards sale consideration---After passage of three years since the suit was filed, balance sale price was not paid by the respondent/plaintiff to show his bona fide and willingness to complete the sale transaction, rather in his evidence he has stated that he was not ready and willing to purchase the remaining area as mentioned in the sale agreement---No legal notice had been sent by the respondent/plaintiff to the owner/seller for completing the sale transaction in 03 years, which had adverse effect on his willingness to purchase the suit land---Sale agreement in favour of respondent/plaintiff remained incomplete as compared to registered sale agreement in favour of the petitioners, which stood completed, thus, that had preference---Relief of specific performance of contract is discretionary in view of S.22 of the Specific Relief Act, 1877---Evaluation of the evidence was not properly done by the Appellate Court and said significant legal principle about the discretionary relief had been overlooked while setting aside the decision of the Trial Court----Civil revision was allowed, in circumstances.

Parkash Kumar for Applicants Nos.1 and 2.

Abdul Ghafoor Hakro for Respondent No.1.

Muhammad Arshad S. Pathan for Respondent No.2.

2025 C L C 54

[Sindh]

Before Muhammad Shafi Siddiqui and Sana Akram Minhas, JJ

FARHAT RASHID---Appellant

Versus

SABA FARHAT RASHID---Respondent

High Court Appeal No.216 of 2024, decided on 30th May, 2024.

Law Reforms Ordinance (XII of 1972)---

----S.3---Constitution of Pakistan, Art. 199---Jurisdiction of the Court---Whether Single Judge of High Court had erred in assuming jurisdiction---In respect of some past/future maintenance allowance, a direct Constitutional Petition was filed by the wife and children before the High Court ; despite office objections, High Court on the assumption of jurisdiction, passed an order directing appellant to deposit a certain amount---Appellant, being respondent in the constitutional petition in which impugned order was passed, filed intra-court appeal under S.3 of Law Reforms Ordinance, 1972---Plea of the appellant was that under wrong assumption of jurisdiction, impugned order was passed---Validity---Reliance of appellant to prefer appeal under S.3 of Ordinance, 1972 read with Art. 199, Cls. (1) of the Constitution was misconceived---In the first instance, the impugned order, admittedly, did not arise out of frame of Cl. (1) of Art. 199 of the Constitution; this would not only exclude the appellant from preferring an appeal but Cl. (3) of Art. 199 was also directly applied in the sense that it was only an ad interim order---No such appeal could be filed within the frame of S. 3 of Law Reforms Ordinance, 1972, read with Art. 199 of the Constitution as the causes arising out of Cl.(1) of Art. 199 were primarily dealt with by Division Bench of the High Court as against rest of the other jurisdictions---Appellant may well address it under the principle of Kompetence-Kompetence and the Single Judge at best shall decide the issue of maintainability first before proceeding further in any manner --- Division Bench of the High Court remanded the case to the Single Judge who shall hear the counsel preferably on the maintainability issue first and shall then, if so required, proceed further as far as merits were concerned---Appeal stood disposed of accordingly.

Messrs National Oil Refinery Ltd. v. Syed Mansoor Ali (High Court Appeal No.D-372 of 2023) ref.

Rafiq Ahmed Kalwar for Appellant.

Haider Waheed, Hussain Idrees and Mehak Asghar for Respondent on statutory notice under Rule XLIII, Rule 3, C.P.C.

2025 C L C 107

[Sindh]

Before Mohammad Abdur Rahman, J

Syed MUHAMMAD QASIM---Petitioner

Versus

Mst. HAFSA QASIM and 2 others---Respondents

Constitutional Petition No.S-297 of 2021, decided on 31st August, 2023.

Family Courts Act (XXXV of 1964)---

----S.5, Sched.---Constitution of Pakistan, Art.199---Consent order based on conceding statement of counsel---Suit for recovery of dower, personal documents, dowry articles along with gold ornaments instituted by the respondent/wife against the petitioner/husband was partially decreed----Petitioner preferred an appeal, in which Appellate Court passed a consent order on the conceding statement of counsel of the petitioner as to settlement of family dispute over recovery of gold ornaments---Contention of the petitioner was that he had not instructed his counsel to make such a conceding statement on his behalf for settlement of family dispute---Validity---Appellate Court recorded settlement on behalf of the petitioner upon a conceding statement made by his counsel, which would amount to a consent order and the implementation of which was delayed by the petitioner by way of filing a constitutional petition---Remedy available to the petitioner was against his counsel and not by way of a petition under Art.199 of the Constitution and either way respondent could not be prejudiced for diligently proceeding in the matter---Constitutional petition was dismissed, in circumstances.

Amanullah Soomro v. P.I.A. through Managing Director/Chairman and another 2011 SCMR 1341 rel.

Petitioner in person.

Ms. Mariam Badar for Respondent No.1.

Nemo for Respondent No.2.

Nemo for Respondent No.3.

2025 C L C 133

[Sindh (Sukkur Bench)]

Before Zulfiqar Ahmad Khan, J

MUHAMMAD NAEEM and 38 others---Applicants/Plaintiffs

Versus

FEDERATION OF PAKISTAN through Secretary Railways Department and 13 others---Respondents

Civil Revision Application No.S-24 of 2021, decided on 19th August, 2024.

Limitation Act (IX of 1908)---

----First Sched. Art. 91---Civil Procedure Code (V of 1908), O.VII, R.11---Specific Relief Act (I of 1877), Ss. 39, 42 & 54---Suit for cancellation of document, declaration and injunction---Rejection of plaint---Limitation to seek declaration---Locus standi to file suit---Principle---Applicants / plaintiffs were private individuals who sought declaration of ownership on behalf of Municipal Corporation and had assailed lease deed executed between two government organizations in year 2012---Trial Court and Lower Appellate Court concurrently rejected the plaint filed by applicants / plaintiffs---Validity---Municipal Corporation did not come before Court and applicants / plaintiffs without having legal authority to act on behalf of the Municipal Corporation could not initiate legal proceedings related to the interests of that Corporation---Applicants / plaintiffs failed to demonstrate that they had authority to act on behalf of Municipal Corporation seeking declaration of ownership of suit property---Applicants / plaintiffs sought cancellation of a lease deed, which was executed between Military Estates Officer and PTCL in year 2012, by filing a suit in the year 2017 claiming that the same was result of fraud---For seeking such relief, limitation period was "three years" as provided under Art.91 of Limitation Act, 1908---Applicants / plaintiffs had no concern with alleged lease deed as it had been executed between two government departments---High Court in exercise of revisional jurisdiction declined to interfere in concurrent findings of two Courts below who were justified in rejecting the plaint---Revision was dismissed, in circumstances.

Mst. Khalida v. Raja Muhammad Khurshid Khan 2008 CLC 1570; Ghulam Muhammad v. Province of Sindh through Secretary, Revenue and 6 others 2008 CLC 960; Liaqat Ali through L.Rs. v. Khalid Mehmood and others 2013 MLD 1818 and Anwar Khan and others v. Fozia Khan and another 2023 CLC 1039 rel.

Shafqat Rahim Rajput for Applicants.

Ghulam Abbas Akhtar for Respondents Nos.3 and 4 / Pakistan Railways.

Ghulam Murtaza Korai for Respondent No.12 / PTCL.

Muhammad Aslam Jatoi, Assistant Attorney General.

Ahmed Ali Shahani, Assistant Advocate General Sindh.

2025 C L C 151

[Sindh]

Before Yousuf Ali Sayeed and Arbab Ali Hakro, JJ

MUHAMMAD YAHYA and others---Appellants

Versus

PROVINCE OF SINDH and others---Respondents

High Court Appeals Nos.321 and 322 of 2024, decided on 8th October, 2024.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Suit for declaration and injunction---Interim injunction, refusal of---Appellate Court, jurisdiction of---Cross cases---Two suits were filed regarding suit land, one filed by appellants / residents of Society and the other by respondents / Housing Society---Judge in Chambers of High Court (as Trial Court) granted interim injunction in favour of respondents / Housing Society and dismissed application filed by appellants / residents of Society and declined to restrain respondent / Housing Society from raising construction---Validity---Where on consideration of respective cases of parties and documents laid before it, the Court of first instance grants or refuses an injunction, an Appellate Court ought not to interfere with the exercise of discretion unless such exercise is found to be palpably incorrect or untenable---As long as view of Trial Court is a possible view, the Appellate Court ought not to interfere with the same---Reasons that weighed with Trial Court were grounded in law and did not indicate that the view taken for granting injunction on the application of respondent / Housing Society while withholding the same on the application of appellants / residents of Society was capricious or untenable---All relevant points arising for consideration were addressed by Judge in Chambers of High Court, while properly weighing the matter in light of relevant test for determining whether or not case was made out for interlocutory injunction---Division Bench of High Court declined to interfere in the order passed by Judge in Chambers of High Court as discretion was exercised judiciously and it was not open on appeal to substitute the view in that regard---Intra-Court Appeal was dismissed, in circumstances.

Roomi Enterprises (Pvt.) Ltd. v. Stafford Miller Ltd. and others 2005 CLD 1805; Syed Hamid Mir through Attorney and another v. Board of Revenue Sindh through Member/Secretary Land Utilization Department and 9 others 2021 YLR 1629; Pakistan Telecommunication Company Limited v. Province of Sindh and others SBLR 2024 Sindh 32; Hadmor Productions Ltd. v. Hamilton [1983] 1 A.C. 191 and Garden Cottage Ltd. v. Milk Marketing Board (1984) 1 A.C. 130 rel.

Rizwana Ismail for Appellants, along with Noor Muhammad.

Munir A. Malik and Ch. Atif Rafique, for the Cutchi Memon Housing Society.

Ali T. Ebrahim for Nixor College (Private) Limited.

Khursheed Javed for the KDA, along with Shaikh Fareed, Director Planning (Urban), KDA.

2025 C L C 215

[Sindh]

Before Muhammad Iqbal Kalhoro, J

ABDUL KHALIQUE ---Appellant

Versus

NADEEM TARIQUE KHAN and others ---Respondents

IInd Appeal No. 121 of 2023, decided on 26th August, 2024.

(a) Limitation Act (IX of 1908)---

----First Sched., Arts. 91 & 120---Qanun-e-Shahadat (10 of 1984), Arts. 75 & 76---Specific Relief Act (I of 1877), Ss, 12, 39, 42 & 55---Civil Procedure Code (V of 1908), S.100---Second Appeal---Allotment of plot in Government Employees Housing Society---Execution of lease deeds in favour of two members qua one plot---Suit for declaration, cancellation, possession, injunction and damages filed by the appellant was dismissed on two counts i.e. filing of photocopies of documents and limitation---Appellant preferred an appeal, which was also dismissed on the same technical counts despite the fact that certified copies of the documents had been filed---Validity---Claim of the appellant had been declined on the point of limitation not only by believing the document, the genuineness of which he had challenged on the ground of fraud but also by not believing certified true copies of the documents, which he was allowed to file by the appellate court itself in order to defeat the observations of the Trial Court against him on filing of the photostat copies thereof---When the validity of the document in its entirety was challenged on the ground of being false and fabricated, then the date of its execution would not be taken up as a reference for determining limitation period for filing the suit against it in absence of a thorough enquiry by the Trial Court to determine its exactness first---Appellant was not aware of document challenged by him since its execution, or that the date of its execution was correct but contents had been distorted or manipulated, to make the date of execution as a reference point to decide limitation of the case---Plaintiff in his plaint asserted that he came to know of such manipulation in 2011 and he challenged it by filing the suit in 2013 i.e. within three years---Respondents had failed to pursue their case before the Trial Court and did not file any written statement to support their point of view---In absence of any evidence contradicting claim of the plaintiff about getting knowledge of the questioned document in 2011, there was no material before the courts to come to a conclusion that the appellant was aware of the document and he failed to question the same before any forum within time---Appellate court failed to appreciate that application under O.VII R.11, C.P.C., was rejected by the Trial Court for non-prosecution and the documents filed in support thereof were not looked into by the Trial Court either or held to be true or even confronted to the appellant to see his response, thus, presuming those documents to be genuine for determining limitation of filing the suit without an opportunity to the appellant to give his point of view or contradict them was apparently an illegality and at best a result of hypothesis---Findings of the Appellate court in respect of certified copies of documents produced by the appellant to establish his title on the property were cursory in manner---Court was not supposed to dismiss the matter on technicalities by considering some omission which was curable by a simple exercise of jurisdiction by it, as it was empowered to call the relevant officials and examine them for determining genuineness of the document produced by the appellant in support of his case particularly when it was a registered document---Court could not proceed in void by referring to the relevant articles of Qanun-e-Shahadat to affirm that its requirement had not been met and which had rendered the appellant's claim baseless especially when it was within jurisdiction of the court to rectify such omission and call relevant officials to decide the controversy once and for all; it should not choose to let the controversy simmer, and stay a bone of contention between the parties forever---Second appeal was allowed, in circumstances.

2002 SCMR 677; 2020 CLC Note 12; 1992 SCMR 2298; 2014 SCMR 513 and 1998 CLC 2070 ref.

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

----S.100---Second Appeal---Concurrent findings recorded by courts below----Scope---Concurrent findings recorded by the courts below are not considered sacrosanct, if the record show that such findings are based on either misappreciation of evidence or on some material which is extraneous or the law has been misapplied, the same can be set-aside and either the case can be decided on merits or if there is some lacuna that has distracted the courts below to come to a just conclusion, by remanding the case to the original court to decide it afresh in view of the guiding principles laid down by the superior courts in that regard.

(c) Administration of justice---

----Court is not supposed to dismiss the matter on technicalities by considering some omission which is curable by a simple exercise of jurisdiction by it.

Mashooque Ali Soomro for Appellant.

Abdul Qadir Khan for Respondent No. 1.

2025 C L C 232

[Sindh]

Before Yousuf Ali Sayeed and Arbab Ali Hakro, JJ

Shaikh TAHIR BUKSH and others ---Petitioners

Versus

SINGLE JUDGE OF HON'BLE HIGH COURT OF SINDH and another ---Respondents

Constitutional Petition No. D-3065 of 2024, decided on 5th August, 2024.

(a) Succession Act (XXXIX of 1925)---

----Ss. 295 & 278---Constitution of Pakistan, Art. 199---Civil Procedure Code (V of 1908), O. XX, R.13---Constitutional petition---Maintainability---Laches---Alternate remedy of appeal not availed---Effect---Single Judge of High Court passed the order of conversion of Succession Matter Applications (SMAs) into a suit for administration---Contention of the petitioner was that SMAs were to be treated as a "regular suit" rather than a "suit for administration"---Validity---Court had meticulously adhered to all the pre-requisites of S.295 of the Succession Act, 1925 (Act)---Petitioners insistence on the insertion of the word "regular" before "suit" in S.295 of the Act to recall/review the expression that "these SMAs" are converted into a suit for administration/partition of the properties of the deceased" was misconceived---When legal heirs of a deceased person contest their share in the deceased's property, any one of the legal heirs can initiate a suit for administration of the properties or file an application under S.278 of the Act for a grant of "Letter of Administration" for the properties---A regular suit arising from the proceedings of a "Letter of Administration" can only be converted into a "suit for administration" of the property of the "deceased person"--- Petitioners refrained from contesting the impugned orders, which consequently attained finality and they also did not avail themselves of the alternate remedy of appeal, which was at their disposal---Petition suffered from laches, which the petitioners could not adequately and appropriately explain---Writ was legally untenable against the order passed by the Single Judge of High Court under the purview of Art.199 of the Constitution---Constitutional petition was dismissed in limine, in circumstances.

(b) Constitution of Pakistan---

----Arts.199(1) & 199(5)---Writ against order of Single Judge of High Court---Maintainability---Impleadment of a Judge of High Court as a party to lis---Legality---"Person", definition of---Petitioners erroneously impleaded a Single Judge of High Court as a respondent in their writ petition---Under Art.199 of the Constitution, writs may be issued to an entity discharging functions in connection with the affairs of the Federation, Province, or a local authority within the territorial jurisdiction of High Court---Designation 'person' employed in Art.199(1) does not encompass a High Court or other authorities/institutions delineated in Art.199(5) of Constitution---Writ was legally untenable against the order passed by the Single Judge of the High Court under the purview of Art. 199 of the Constitution.

2025 C L C 248

[Sindh]

Before Muhammad Faisal Kamal Alam, J

METROPOLITAN STEEL CORPORATION LIMITED ---Petitioner

Versus

MULTAN ELECTRIC POWER COMPANY and another ---Respondents

Execution No. 20 of 2020, decided on 16th February, 2023.

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

----Ss.37, 38, 39 & 47---Execution application---Precept---Scope---Decree attaining finality---Effect---Judgment-debtor (a power distribution company) filed application to transfer the execution proceedings to the city/court where their head office was situated---Validity---No appeal had been preferred, not even till date, against the judgment and decree against the applicant (judgment-debtor); thus, the same (decree) hadd attained finality---Substantial justice is to be done between the litigants---Once a decree attains finality, then, statutory right and interest accrue in favour of decree-holder, which cannot be strangulated on the basis of procedural law, status of which is that of stepping stone and not a stumbling block---Therefore, application filed by judgment debtor, was not tenable; consequently, the same was dismissed---Decretal amount, already attached was ordered to be paid to the decree holder forthwith---Execution application, filed by decree-holder, was granted.

Dino Manekji Chinoy and 8 others v. Muhammad Matin PLD 1983 SC 69 ref.

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

----Ss.37, 38, 39 & 47---Execution proceedings---Precept---Decretal amount, depositing of---Effect---Judgment-debtor (a power distribution company) filed application to transfer of execution proceedings to the city/court where their head office was situated---Validity---Record (including Nazir's Report) revealed that decretal amount had been attached---Since the order attaching the said amount had also attained finality, therefore, there should be no impediment in allowing the present execution application---Therefore, application filed by judgment debtor, was not tenable; consequently, the same was dismissed---Decretal amount, already attached, was ordered to be paid to the decree holder forthwith---Execution application, filed by decree-holder, was granted.

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

----Ss. 37, 38, 39 & 47 & O.VII. R. 11---Jurisdiction of Court already determined---Scope---Judgment-debtor (a power distribution company) filed application to transfer of execution proceedings to the city/court where their head office was situated---Validity---In terms of sections 37, 38 and 39 of Civil Procedure Code, 1908, a decree can be transferred to other Court for implementation, inter alia, on the application of decree-holder ,but in the present case, the objection was raised by the judgment debtor---Issue of jurisdiction was already decided by the High Court (exercising original jurisdiction) when order, regarding jurisdiction, was passed in favour of plaintiff (now decree-holder) dismissing an application having been filed by the very applicant (judgment debtor), being defendant, for rejection of plaint, on the ground of lacking jurisdiction---Therefore, application filed by judgment debtor, was not tenable; consequently, the same was dismissed---Decretal amount, already attached, was ordered to be paid to the decree holder forthwith---Execution Application, filed by decree-holder, was granted.

Fakir Abdullah and others v. Government of Sindh through Secretary to Government of Sindh, Revenue Department, Sindh Secretariat, Karachi and others PLD 2001 SC 131; Muhammad Bachal v. Province of Sindh through Home Secretary and 12 others 2011 CLC 1450 and Allah Bakhsh v. Allah Yar and 4 others 2017 CLC Note 9 disting.

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

----Ss.37, 38, 39 & 47---Execution petition---High Court being Court of original jurisdiction---Judgment-debtor (a power distribution company) filed application to transfer of execution proceedings to the city/court where their head office was situated---Execution petition filed before High Court as the same Court passed decree in its original jurisdiction---Validity---High Court while exercising its original jurisdiction is not a Court exercising ordinary original civil jurisdiction, but is a constitutional Court---Application filed by judgment debtor, was not tenable; consequently, the same was dismissed---Decretal amount, already attached was ordered to be paid to the decree holder forthwith---Execution Application, filed by decree-holder, was granted.

Searle IV Solution (Pvt.) Ltd. v. Federation of Pakistan and others 2018 SCMR 1444 ref.

Decree Holder by its Chairman Muhammad Mehmood Ali Mehkri.

Dr. Irfan Ahmed Chattha and Nayer Ziauddin for Judgment Debtor No. 1.

Nemo for Judgment Debtor No. 2.

2025 C L C 272

[Sindh]

Before Adnan-ul-Karim Memon, J

Mst. ZOOBIA NAZ ---Petitioner

Versus

PROVINCE OF SINDH, through Chief Secretary and others ---Respondents

Constitutional Petition No.S-859 of 2024, decided on 24th July, 2024.

Guardians and Wards Act (VIII of 1980)---

----Ss.7 & 25---Criminal Procedure Code (V of 1898), S.491---Constitution of Pakistan, Art. 199(1)(b)(i)---Habeas corpus, writ of---Scope---Recovery of minor from the custody of father given to him by the petitioner/mother herself voluntarily---Petitioner instead of availing alternate remedy by seeking custody of the minor from the Guardian Court opted to approach High Court in the writ of habeas corpus---Validity---Section 491, Cr.P.C., could not be used to declare someone as the guardian of a minor or to resolve custody disputes, rather these matters should be addressed in separate proceedings before the Guardians and Wards Court---Paramount consideration in determining custody of a minor was the minor's welfare, considering his/her age, sex, religion, and moral, spiritual, and material well-being---Court should assess the age, sex and religion of the minor, the character and capacity of the proposed guardian, their kinship to the minor and the minor's preference if he/she is capable of making it---Application for invocation and passing of a writ of habeas corpus may be filed by any person seeking a direction from High Court that "a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner", however, such invocation and passing of the writ is subject to the satisfaction of the High Court and that no adequate remedy is provided by the law---Only in exceptional and extraordinary circumstances, where all other methods and measures fail and an element of criminality, forced removal, kidnapping. and/or abduction of the child is involved, writ of habeas corpus can be issued, thus, issuance of a writ of habeas corpus in a custody matter should be an exception, and not the rule, as the Guardians and Wards Act, 1890, provides the Guardian Court with all requisite powers to pass and enforce its orders in such matters---Purpose of filing the present petition was served as the minor had been produced before the Court and was no more in illegal detention and the parties had to seek permanent custody of minor from the Guardians and Wards Court---Constitutional petition was disposed of, in circumstances.

Mst. Qurat-ul-Ain v. Station House Officer, Police Station Saddar Jalalpur Jattan, District Gujrat and others 2024 SCMR 486; Mst. Beena Muhammad v. Raja Muhammad PLD 2020 SC 508 and Humayun Hassan v. Arslan Humayun and another PLD 2013 SC 557 rel.

Naseem Akhtar, Advocate for Petitioner along with petitioner Mst. Zoobia Naz.

Waqar Alam Abbasi and Arslan Naeem for Respondent No. 4 along with Respondent No. 4 Muhammad Saad and minor baby Minal. Ms. Seema Zaidi, Additional PG.

2025 C L C 290

[Sindh (Hyderabad Bench)]

Before Yousuf Ali Sayeed, J

Mir ABDUL QAYOOM ---Appellant

Versus

MUHAMMAD ASLAM and others ---Respondents

Iind Appeal No. 111 of 2022, decided on 31st May, 2024.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Property, identification of---Describing land with reference to boundaries---Significance---Dispute between the parties was with regard to ownership and possession of plot in question when both the parties had referred to two different numbers of one plot in registered documents in their favour---Suit filed by respondent/plaintiff was concurrently decreed in his favour---Validity---In Schedule to lease deed, plot number mentioned was 74/C, with specific boundaries---Describing land with reference to boundaries was significant because it provided a clear and specific identification of the property, as the boundaries serve as physical markers that define the extent and limits of a particular piece of land---Mentioning boundaries in legal document such as a lease helps to avoid ambiguity and ensures that there is no confusion or dispute regarding exact location and extent of the property---Such information provides a precise and objective way to identify and distinguish one property from another and is crucial for determining ownership, resolving boundary disputes, and establishing rights and responsibilities related to the land---Appellant/defendant was unable to demonstrate any misreading/non-reading of evidence or perversity in the findings of fora below falling within the scope of a Second Appeal---High Court declined to interfere in concurrent findings passed by two Courts below as the same were reasonable and sustainable one on the basis of the evidence on record---Second Appeal was dismissed accordingly.

Zafar Iqbal Seenharo, for Appellant.

Barrister Jawad Ahmed Qureshi for Respondent No.1.

Anwar Ali Solangi, for Respondent No.2.

2025 C L C 312

[Sindh]

Before Salahuddin Panhwar and Khadim Hussain Soomro, JJ

ABDUL QADIR ---Petitioner

Versus

PROVINCE OF SINDH through Secretary Cooperation Department Karachi and 7 others ---Respondents

Constitutional Petition No.D-703 of 2010, decided on 2nd May, 2024.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Active participation of the applicant in the proceedings---Silence of applicant after passing of impugned order and not challenging same before the Supreme Court---Principle of acquiescence and acceptance attracted---Plea of negligence of counsel---Applicant challenged order qua conversion of amenity plot into residential plot on the grounds of fraud, misrepresentation or lack of jurisdiction---Contention of the applicant was that he should not be penalized for negligence of counsel---Validity---Party has the right to sue the counsel for damages if the counsel's act or omission was negligent, but this does not absolve the party from the consequences of the counsel's actions in the litigation itself---Applicant had sufficient time to challenge the decision before the Supreme Court and his failure to do so within the prescribed time frame suggested his acquiescence or acceptance to the order---Law does not favour those who sleep on their rights---Applicant had failed to point out any illegality, fraud, or misrepresentation in the impugned order and without such allegations being substantiated, there was no basis to challenge the validity of the order---Right of the applicant to sue the counsel before the concerned Bar Council or for damages was a separate matter and was not pertaining to the validity of the order itself---Legal system operates on the premise that the counsel's actions are attributable to the client and this principle is necessary for the administration of justice---Applicant's failure to challenge the judgment may also be interpreted as an implicit acceptance of the alleged fallout of the original order---Section 12(2), C.P.C., may be invoked solely in instances where a judgment, decree, or order has been rendered against an individual oblivious to the proceedings culminating in said judgment, decree, or order and conversely, when an individual has actively contested legal proceedings or is duly served but elects not to contest, the sole recourse available is to pursue the established legal remedies of Appeal, Revision, Review, or Petition for Leave to Appeal, as delineated by law, rather than resorting to an application under S.12(2), C.P.C.---Privilege of invoking S.12(2), C.P.C., does not extend to a party who, by virtue of its own omission, finds itself contesting---Sanctity of S. 12(2), C.P.C., must not be compromised by permitting its use as a stratagem to impugn the integrity of a decision on the grounds of fraud, misrepresentation, or lack of jurisdiction, especially after the window to challenge such a decision through Appeal, Revision, Review, or Petition for Leave to Appeal has elapsed or has been voluntarily relinquished---Application under S.12(2), C.P.C., was dismissed, in circumstances.

Mst. Kubra Begum and others v. Shad Begum and others 1996 SCMR 2096; Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710 and Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 Disting.

Safiullah Siddiqui v. Karachi Electric Supply Corporation Limited 1997 SCMR 926 and Amanullah Soomro v. P.I.A through Managing Director/Chairman and others 2011 SCMR 1341 rel.

Shoukat Ali Shaikh for Petitioner.

Ikhtiar Khan Soomro for Respondent No.3.

Khurram Ghayas for S.M.P.A.

Ms. Nazia Siddiqui for K.D.A.

Ghulam Akbar Lashari for S.B.C.A.

Imran Ahmed for Applicants.

2025 C L C 332

[Sindh]

Before Agha Faisal, J

PREMIUM TEXTILE MILLS LIMITED through duly authorized officer and 23 others ---Plaintiffs

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Petroleum and Natural Resources, Islamabad and 2 others ---Defendants

Suit No. 129 of 2017, (and connected matters, particularized in the Schedule hereto.), decided on 6th September, 2024.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Suit for declaration and injunction---Fixation of gas prices---Plaintiffs/companies assailed notification dated 30-12-2016 issued by Oil and Gas Regulatory Authority fixing gas prices---Validity---Defendant/Sui Southern Gas Company (SSGC) had contractual relationship with Federal Government in which defendant/SSGC was guaranteed a certain rate of return---Periodical price review requests were predicated upon actualizing such return---Defendant/SSGC did not make any effort to suggest that a subsequent price review request would be devoid of any previous shortfall, occasioned for any reason whatsoever---High Court answered relevant issue framed for determination in the negative, in favor of plaintiffs / companies and against defendants---High Court declared notification in question for fixation of gas prices issued by Oil and Gas Regulatory Authority as void ab initio---Suit was decreed accordingly.

Mustafa Impex v. Government of Pakistan PLD 2016 SC 808 rel.

Hussain Ali Almani, Ovais Ali Shah, Atif Chaudhry, Basim Raza, Mehek Azfar, Ameen Mohammed Bandukda, Sunder Lal Lohana, Ahmed Farhaj, Khalid Mehmood Siddiqui, Syed Mohsin Ali, Naveed Ahmed Khan, Khurram Ashfaq, Salman Yousuf, Rana Sajid Rasool, Naeem Suleman, Arshad Hussain Shehzad, Syed Irshad ur Rehman, Naveen Merchant, Mariam Salahuddin, Abdul Rehman Adeed, Tasleem Hussain Maitlo associate of Sofia Saeed Shah, Ali Qambar Askary, Tehmina Askary, Shakeel Akbar, Anas Makhdoom, Abdul Sattar, Masroor Ahmed Alvi, Aadil Khan Abbasi, Junaid Mukhtar Siddiqui, Abdul Sattar, Toqeer Randhava, Ghulam Mustafa Kolachi, Nareeta Hassan, Faheem Shah, Kashan Ahmed, Asghar, Faiz Durrani, Ghulam Muhammad, Syed Zeeshan Ali, Shazi Aziz Khan, Samiur Rehman Khan, Mazhar Imtiaz Lari, Mustafa Naqvi and Abdul Ahad Nadeem, for Plaintiffs.

Asim Iqbal, Ghazi Khan Khalil, Ameer Nosherwan Adil, Farmanullah Khan, Syeda Mariam Mastoor, Syeda Khizra Fatima Chishti, Syed Naseebullah, Ghani Khan, Shahid Ali Qureshi, Abdul Hakeem Junejo, Hashim Irfan, Zeeshan Ahmed and Syed Kumail Abbas, for Defendants.

Zahrah Sehr Vayani, Assistant Attorney General.

Muhammad Riaz, Aamir Jalil, Syed Asad Abbas Naqvi, Ammar Saleem Butt, Raja Love Kush, Muhammad Kamran, Fasih ud Din Fawad, on behalf of SSGC.

2025 C L C 363

[Sindh]

Before Muhammad Shafi Siddiqui and Rashida Asad, JJ

ZEESHAN YOUNUS through Attorney ---Petitioner

Versus

PROVINCE OF SINDH through Chief Secretary, Government of Sindh, Karachi and others ---Respondents

Constitution Petition No. D-3814 of 2020, decided on 20th June, 2024.

Easements Act (V of 1882)---

----Ss.52 & 62(c)---License/permit to extract limestone---Extension in permit---Obscurity in process of granting license---No public notice---Continued occupation of land without a valid permit---Trespassing---Petitioner continued occupation of the land after expiry of extended period of license/permit by depositing challan/fee on his own without any authority by the respondents---Legality---Validity---Nothing on the record was found as to transparency of process of awarding the permit to extract limestone---It was the primary consideration of the petitioner that a notice ought to have been followed at the time of extending the period of permit/license---Petitioner had been paying challan/fees, on his own, without permission of the authority concerned and had applied for an extension of the license---Petitioner's occupation was illegal and his status was that of a trespasser under the Easements Act, 1882, as permission alone did not bestow any right under the law rather license/permit could have been cancelled even during its subsistence---High Court did not exercise its discretion in favour of the petitioners, who continued to occupy and enjoy the land as trespasser for the extraction of limestone---Occupation over the land was not transparent, thus, High Court ordered an inquiry into the actions of the officials responsible for issuing and renewing the license and also directed to retrieve the land from the trespasser---Constitutional petition was disposed of, in circumstances.

Shazia Hanjrah, for Petitioner.

Zubair Ahmed Abro, for Respondent No. 7.

2025 C L C 393

[Sindh (Larkana Bench)]

Before Arbab Ali Hakro, J

Prof. Dr. KHEO RAM ---Appellant

Versus

Messrs CHANGAN MEHRAN MOTORS LTD. through CEO and another ---Respondents

First Civil Appeal No. S-05 of 2022, decided on 7th November, 2024.

(a) Sindh Consumer Protection Act (XVII of 2014)---

----Ss.26, 29(1), (4), 31(3), 34 & 36---Civil Procedure Code (V of 1908), O. VII, R. 11---Consumer Court, power of---Scope---Power to reject a plaint---Consumer Court rejected the complaint filed by the appellant for delivery of vehicle being barred by time in exercise of its powers under O.VII, R. 11, C.P.C.---Contention of the appellant was that complaint could not be dismissed as the Consumer Court while proceeding with a complaint did not have powers of Civil Court---Validity---Appellant, on 06.04.2022, effectuated the booking of a vehicle and remitted the full consideration---Tentative delivery month was designated as July 2022, however, the vehicle remained undelivered, which culminated into issuance of legal notice on 15.08.2022, eliciting a response from the respondents on 24.08.2022, whereupon complaint was filed on 15.09.2022, thus, term "cause of action" as accruing upon the respondents' failure to adequately address the issues enumerated in the notice, specifically from the date of their reply on 24.08.2022, as such complaint was filed squarely within thirty days as stipulated in S.29(4) of the Act---Under S.31(3) of the Sindh Consumer Protection Act, 2014, (Act) the procedural powers vested in a Civil Court under the C.P.C. are also vested in the Consumer Court---Such inclusion is intended to ensure that the Consumer Court could efficaciously manage the adjudication process, including summoning and examining witnesses, handling evidence, and issuing requisite orders to ensure a fair trial---Consumer Court's action of rejecting the complaint under O.VII, R.11, C.P.C., was construed as effectively being a dismissal under S.36 of the Act, read with O.VII, R.11, C.P.C., adhering to the equitable principle that no person should suffer due to an act of the Court---Complaint was found to be within time, however, the power assumed by the Consumer Court under O.VII, R.11 C.P.C. for rejecting the plaint was held to be in accordance with law---Appeal was dismissed, in circumstances.

PLD 2012 SC 247; PLD 2017 SC 1; 2023 CLD 934; PLD 2023 SC 482 and PLD 2014 Lah 196 Ref.

(b) Sindh Consumer Protection Act (XVII of 2014)---

----Ss.2(e), (n), (q), 26, 29 & Preamble---Specific Relief Act (I of 1877), S.12---Preamble of the Sindh Consumer Protection Act, 2014 ('Act')---Scope---Complaint before Consumer Court against a car dealership for late delivery of vehicle---Maintainability---Overarching purpose and objective of the Act are to safeguard and advance the rights and interests of consumers, who are susceptible to risks and failures in procuring their desired goods and services---Preamble aims to ensure the protection and promotion of consumer rights by establishing an expedited mechanism for the redress of grievances, minimizing the loss of time in resolving such disputes---Relief sought by the appellant did not pertain to pecuniary damages suffered but rather constitutes a grievance regarding the respondent's dereliction in delivering the booked vehicle,---Consumer's claim for damages under S. 26 of the Act must meticulously align with the provisions of S.29, which mandates that such a claim be predicated on damages incurred due to defective or faulty products obtained for consideration---Appellant procured a vehicle from respondents and remitted the entire payment and the dispute arose when respondents refused to deliver the vehicle, citing the non- payment of the residual balance---Crucially, booking a vehicle did not fall within the ambit of 'product' as defined under S.2(n), nor did it qualify as 'services' under S.2(q) of the Act, thus, the matter pertained exclusively to the contractual rights and obligations emanating from the sale/purchase of a vehicle and not to 'services' as delineated by S.2(q) of the Act and the appellant should have sought recourse through a Civil Court of competent jurisdiction under the Specific Relief Act for the enforcement of contractual obligations, if so advised, rather than approaching the Consumer Court, unless it was unequivocally established that he was a consumer who had purchased a defective or faulty product or engaged any service from a service provider---Complaint filed by the appellant was held to be not maintainable---Appeal was dismissed, in circumstances.

(c) Sindh Consumer Protection Act (XVII of 2014)---

----Ss.2(e)(i) & 2(n)---Sale of Goods Act (III of 1930), S.2(e)(ii)---Analogous meanings of words 'product' and 'service'---Section 2(e)(i) of the Sindh Consumer Protection Act pertains to 'product', which is further delineated under S.2(n) and is synonymous with the term 'goods' as defined in the Sale of Goods Act, 1930---Conversely, S.2(e)(ii) of Sindh Consumer Protection Act pertains to ' services' as defined under S.2(q) of Consumer Act.

(d) Interpretation of statutes---

----Preamble---Scope and purpose---Though the preamble is not an operational part of the statute, it is a critical interpretative tool that elucidates the legislature's intent and the legislative purpose necessitating the enactment---It provides a gateway to understanding the goals the legislature sought to achieve through this law, thus, the preamble holds a pivotal role in statutory interpretation, shedding light on the true purpose and intent of the legislation.

Director General, FIA and others v. Kamran Iqbal and others 2016 SCMR 447 and Murree Brewery Company Limited v. Pakistan through Secretary of Government of Pakistan and others PLD 1972 SC 279 rel.

(e) Administration of justice---

----Duty of Court---Court bears an inherent duty to apply the correct law irrespective of whether the parties have specifically invoked it.

Prince Ghulam Muhammad Khan v. Settlement and Rehabilitation Commissioner 1972 SCMR 359 and Abdullah Khan v. Nisar Muhammad Khan PLD 1965 SC 690 rel.

(f) Administration of justice---

----Incompetent complaints, disposal of---Incompetent complaints should be summarily dismissed at their inception to prevent the squander of judicial resources and to uphold the sanctity of the judicial process.

Ghayoor Abbas Shahani for Appellant.

Waqar Ahmed Chandio for Respondents.

2025 C L C 428

[Sindh]

Before Salahuddin Panhwar and Khadim Hussain Soomro, JJ

MUHAMMAD WASEEM and 7 others ---Petitioners

Versus

DIRECTOR GENERAL SINDH BUILDING CONTROL AUTHORITY (SBCA) and 3 others ---Respondents

Constitution Petition No. D-3580 of 2023, decided on 7th May, 2024.

Sindh Building Control Ordinance (V of 1979)---

----Ss. 6(1) , 7-A , 18 & 19 [as introduced through the Sindh Building Control (Amendment) Ordinance, 1982 and the Sindh Building Control Authority (Amendment) Ordinance, 2013]---Constitution of Pakistan, Art. 199---Infractions committed by construction entities or builders---Legal proceedings, initiating/conducting of---Constitutional petition---Maintainability---Doctrine of exhaustion of remedies---Scope---Petitioners filed constitutional petition seeking demolition of construction having been illegally raised by Respondents on occupied land situated behind their (petitioners') place of residence ('building-in-question')---Submission of the Respondents (Sindh Building Control Authority/SBCA) was that the construction was being raised on the basis of approved plan and the violation committed so far had been removed; that in case of any violation in future, the same would be removed/demolished---Validity---In light of the record (including submission made by the respondents/SBCA ), it was acknowledged that the petitioners had not substantiated any legal transgressions or procedural anomalies in relation to the building-in-question---In instances of contravention of subsection (1) of S. 6 of the Sindh Building Control Ordinance, 1979, ('the Ordinance 1979'), SBCA is endowed with the legal authority under S. 7-A of the Ordinance 1979 to undertake actions prescribed/prerogatives encompassing sealing structures wherein construction endeavours are in breach of the prescribed regulations, specifically, those executed without an officially endorsed plan from the Sindh Building Control Authority (SBCA) or in deviation from an authorized schematic---Such enforcement actions by the SBCA, undertaken "without prejudice" to any additional remedies they may choose to initiate, ought to be construed as a testament to their expansive regulatory dominion, which includes the authority to demolish unlawful structures on said property or to initiate criminal proceedings against the transgressors---Furthermore, the prerogative vested in the SBCA under S. 7-A of the Sindh Building Control Ordinance, 1979, operates autonomously from the authority granted under S. 19 of the Ordinance 1979 for awarding penalty---Pursuant to the Sindh Building Control Ordinance, 1979, a Special Court has been established under the aegis of S. 18-A, specifically to adjudicate offences delineated in subsection (1) of S. 19---Said judicial body (Special Court ), in accordance with subsection (2) of S. 19, is empowered to initiate proceedings exclusively upon the lodgment of a complaint by the SBCA or an individual duly empowered by the SBCA under the provisions enshrined in S. 18-D of the Ordinance 1979 delineating the scope and purview of the Special Court---Thus, petitioner in the present case, retained the prerogative to initiate legal proceedings against any infractions committed by construction entities or builders, which could be pursued before the Sindh Building Control Authority (SBCA) according to S. 7-A of the Sindh Building Control Ordinance, 1979, as well as before the Special Courts---Constitutional jurisdiction of the High Court should not be overused as a primary avenue for addressing all grievances and hardships---Instead, it should only be invoked when no other effective, alternative, and adequate legal remedies are available---Said principle is rooted in the doctrine of exhaustion of remedies, which requires a litigant to fully utilize the legal remedies provided by law before seeking a new one in a different court or jurisdiction---Said approach ensures that the judicial system functions efficiently and the higher Courts are not burdened with cases that could be resolved through other means provided by law---Thus, present subject matter laid beyond the ambit of constitutional jurisdiction of the High Court---Constitutional petition, being non-maintainable , was dismissed, in circumstances.

Mian Azam Waheed and others v. The Collector of Customs through Additional Collector of Customs, Karachi 2023 SCMR 1247 ref.

Muhammad Kamran Shabbir for Petitioners.

Syed Anwar Ali Shah and Ms. Roopmala Singh for SBCA.

Jawad Dero, A.A.G.

2025 C L C 462

[Sindh (Sukkur Bench)]

Before Arbab Ali Hakro, J

Mst. NIGHAT BANO ---Appellant

Versus

PUBLIC AT LARGE and 3 others ---Respondents

Succession Appeal No.S-09 of 2022, decided on 23rd February, 2024.

(a) Succession Act (XXXIX of 1925)---

----Ss. 372 & 384---West Pakistan Civil Services Pension Rules, 1963, Rr. 4.7, 4.8(d) & 4.10(2)(b)(iv)---Family pension---Succession Certificate---Eligibility of unmarried sister to receive monthly pension of her deceased and retired sister---After death of her sister, (retired lecturer) petitioner applied for issuance of succession certificate qua pensionary benefits of her deceased sister, however same was refused by the Trial Court---Validity---Dependents, who apply for financial provision, are the deceased wife, husband and children or a child of a family in relation to any marriage or any other person who immediately before the death of the deceased is mentioned, whereas, in the case at hand, appellant was admittedly a government employee and was receiving a pension following her retirement, which implied that she was not reliant on the deceased, as she was earning her income as a government employee---Term "dependent" is defined as an individual with no personal earnings and entirely reliant on his/her sister's income---Simply being an unmarried sister did not automatically qualify the appellant as a dependent of her deceased sister---Dependency is not determined by marital status but by financial reliance---Despite the familial relationship, appellant's financial independence negated her status as a dependent---Succession Appeal was dismissed accordingly.

The Province of Punjab through the Secretary, Finance Department, Government of the Punjab, Lahore and others v. Kanwal Rashid and others 2021 SCMR 730 Distinguished.

(b) West Pakistan Civil Services Pension Rules, 1963---

----R.4.7(1)---Word 'family'---Definition provided.

(c) Words and phrases---

----Word 'dependent'---Connotation---Term "dependent" carries a significant meaning, denoting an individual who is reliant on another for support---This reliance could be emotional, financial, or physical, underscoring a fundamental inability to exist or sustain oneself independently--Dependent person requires another individual's power, aid, or assistance to navigate life's challenges---This dependency could be a result of various factors such as age, health conditions, financial circumstances, or emotional needs---For instance, a child depends on their parents, requiring their support for survival and growth, similarly, an elderly or ill person may be dependent on a caregiver for his daily needs---In a broader sense, the concept of being "dependent" highlights the interconnectedness of human society, where individuals often rely on each other for survival and prosperity.

Safdar Ali Bhatti for Appellant.

Ahmed Ali Shahani, Assistant Advocate General for Respondents.

2025 C L C 495

[Sindh]

Before Shamsuddin Abbasi, J

Mst. ZULKAIF TAHOORA and 2 others ---Applicants

Versus

PROVINCE OF SINDH through Secretary Revenue Departments through Deputy Commissioner, Thatta and 14 others ---Respondents

Civil Revision Application No. 133 of 2012, decided on 18th November, 2024.

Specific Relief Act (I of 1877)---

----Ss. 39, 42 & 54---Civil Procedure Code (V of 1908), S.115---Suit for cancellation, declaration and injunction---Concurrent findings of facts by two Courts below---Gift deed---Proof---Applicants/plaintiffs claimed to be owners of suit property on the basis of gift deed---Trial Court and Lower Appellate Court dismissed suit and appeal filed by applicants/plaintiffs---Validity---Applicants/plaintiffs in support of their claims failed to place on record any evidence or valid material as to execution of alleged gift deed in their favour or that the alleged transaction was Benami---Both the Courts below on appraisal of pleadings and evidence were consistent with the legal position---Two Courts below recorded concurrent findings of fact and had refused to exercise their discretion in favour of applicants/plaintiffs---Concurrent findings of facts could not lightly be interfered with---Applicants/plaintiffs did not raise any question of law that could require consideration of High Court in exercise of its revisional jurisdiction---There was no misreading or non-reading of evidence by two Courts below, who had passed judgments and decrees after due application of mind and careful appreciation of oral and documentary evidence produced by parties as well as the applicable law---High Court declined to interfere in concurrent judgments and decrees passed by two Courts below as the same did not suffer from any illegality, infirmity or material irregularity---Revision was dismissed, in circumstances.

Municipal Committee Bahawalpur v. Sh. Aziz Elahi PLD 1970 SC 506; Alamgir Khan through L.Rs. and others v. Haji Abdul Sattar Khan and others 2009 SCMR 54; Abdul Qayum through legal heirs v. Mushk-e-Alam and another 2001 SCMR 798; Sajjan through L.Rs. and others v. Sher Muhammad Phulpoto 2016 YLR 45; Nadeem Manzoor Hasan v. Muhammad Adil Khan and 2 others 2014 MLD 155 and Syed Aijazul Haque Hashmi and 4 others v. Muhammad Owais 2015 YLR 743 distinguished.

Aamir Nawaz Warraich for Applicants.

Abdul Rauf Malik for Respondents Nos. 6 to 8 and 11 to 15.

Ali Zardari, AAG for Official Respondents.

2025 C L C 525

[Sindh]

Before Yousuf Ali Sayeed and Arbab Ali Hakro, JJ

TRADING CORPORATION OF PAKISTAN ---Appellant

Versus

SADAN GENERAL TRADING LLC through Local Agent KZK Industrial & Commercial Co. and another ---Respondents

H.C.A. No. 167 of 2020, decided on 18th December, 2024.

(a) Arbitration Act (X of 1940)---

----Ss. 18 & 30---Contract Act (IX of 1872), S. 74---Award made rule of Court---Objection, dismissal of---Awarding of compensation---Appellant/Trading corporation of Pakistan was aggrieved of dismissal of its objections and being awarded only 50% of performance amount as compensation---Validity---Aggrieved party, under S. 74 of Contract Act, 1872 was still entitled to reasonable compensation for breach of contract, even if it could not prove actual damage or loss---This ensured that party at fault could not avoid liability simply because other party could not quantify the damage---Reasonable compensation should not exceed penalty---Compensation awarded should be reasonable and should not exceed the amount specified in contract or penalty stipulated---Aim is to prevent excessive or punitive penalty that are disproportionate to the breach---There was no basis for awarding 50% of performance amount to appellant/Corporation under S. 74 of Contract Act, 1872---When award was presented before Judge in Chambers of High Court, respondent/company did not raise any objection---After order in question and decree was passed by Judge in Chambers of High Court, respondent/company chose not to appeal against the same---Appellant/Corporation could not question award and order/decree---Division Bench of High Court declined to interfere in partial acceptance of award and its confirmation as rule of Court a the same showed no significant irregularities---Objections of appellant/Corporation did not demonstrate that Judge in Chambers of High Court either deviated from legal standards or misapplied judicial principles---Intra Court Appeal was dismissed in circumstances.

Sadan General Trading LLC v. Trading Corporation of Pakistan PLD 2021 Sindh 57; PLD 2010 Peshawar 34; 1997 SCMR 66; 2006 YLR 589; 2002 CLD 61; 1991 MLD 422; 1982 SCMR 244; PLD 2011 SC 506; 2023 SCMR 1103; 2018 SCMR 662; 2023 SCMR 1103; PLD 2006 SC 169; PLD 2003 SC 301; PLD 1969 SC 80; PLD 1971 SC 743; PLD 1987 SC 461; 1981 CLC 311 and 1984 SCMR 597 ref.

(b) Damages---

----Maxim "in jure non remota causa sed proxima spectatur"---Connotation---In law, the immediate, not the remote cause, is regarded---As such the maxim substantiates precept that law concentrates on proximate cause of loss or damage when adjudicating compensation, ensuring that an aggrieved party is entitled to reasonable compensation, notwithstanding absence of proven actual damage or loss.

Rafiq Ahmed Kalwar and Muhammad Yasir for Appellant.

Muneer Iqbal and Ibrahim Tahir Siddiqui for Respondent No.1.

Qazi Abdul Hameed Siddiqui, DAG and Syed Raza Mamnoon for Respondents.

2025 C L C 544

[Sindh]

Before Shamsuddin Abbasi, J

Mst. SANA through lawful Attorney and another ---Petitioners

Versus

SHOAIB ISMAIL and another ---Respondents

Constitution Petition No. S-184 of 2024, decided on 20th September, 2024.

(a) Guardians and Wards Act (VIII of 1890)---

----Ss. 12 & 25---Appointment of guardianship of minor---Conditions, violation of---Effect---Both the parties (parents) separately filed guardianship applications and the mother's application was accepted---Later, father filed application against mother before Family/Guardian Court for blocking her CNIC etc., which was allowed---Mother (guardian) assailed such order passed by the Family/Guardian Court---Held, that the Family/Guardian Court while dismissing the guardian application filed by father for custody of minor, (in relevant clause (e) of final order) had specifically restrained the parties from removing the custody of minor abroad as well as his permanent shifting beyond the territorial jurisdiction of the Court subject to prior permission of the Court---However, record was suggestive of the fact that the petitioner/mother had removed the custody of the minor from the territorial jurisdiction of the Family Court and took him to UAE without permission of the Court, which was a clear violation of the terms and conditions of that final order, and taking pain of such breach of terms and conditions of the final order, the Court took coercive measures of blocking the CNIC and Passport of the petitioner/mother---Thus, impugned order was proper and in accordance with law---Hence, the impugned order did not suffer from any illegality requiring interference by the High Court in exercise of its constitutional jurisdiction---However, in order to resolve the controversy and to facilitate the petitioner and also taking into account the welfare and well-being of the minor, the petitioner may approach the Family Court for relief (of unblocking of her CNIC/Passport as well as seeking permission to travel abroad)---Constitutional petition was disposed of accordingly. [p. 549] A & C

(b) Constitution of Pakistan---

----Art. 199---Guardians and Wards Act (VIII of 1890), Ss. 12 & 25---Appointment of guardianship of minor---Conditions, violation of---Effect---Interlocutory order, assailing of---Constitutional petition---Maintainability---Both the parties (parents) separately filed guardianship applications and mother's application was accepted---Later, father filed application before Family/Guardian Court against mother for blocking her CNIC, etc which was allowed---Mother (guardian) assailed such order passed by the Family/Guardian Court---Held that impugned order was interlocutory in nature which could not be entertained by the High Court in exercise of its constitutional jurisdiction---Constitutional jurisdiction is equitable and discretionary in nature and should not be exercised to defeat or bypass the purpose of a validly enacted statutory provisions until and unless the order passed thereunder suffers from any illegality or jurisdictional error---Hence, the impugned order did not suffer from any illegality, infirmity or irregularity that may require interference by the High Court in exercise of its constitutional jurisdiction---However, in order to resolve the controversy and to facilitate the petitioner and also taking into account the welfare and well-being of the minor, the petitioner may approach the Family Court for relief (of unblocking of her CNIC/Passport as well as seeking permission to travel abroad)---Constitutional petition was disposed of accordingly.

G.N. Qureshi for Petitioner.

Ramish Farhat for Respondent No. 1.

Ali Zardari, AAG for Respondent No. 2.

2025 C L C 567

[Sindh]

Before Muhammad Shafi Siddiqui and Sana Akram Minhas, JJ

MUHAMMAD ASHRAF RAJA ---Petitioner

Versus

NOUREEN NAZ and others ---Respondents

Constitutional Petition No.D-5509 of 2023, decided on 22nd May, 2024.

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

----O. VII, R. 11---Rejection of plaint, application for---Limitation---Plea of the defendant was that suit for damages for malicious prosecution filed by the plaintiff was time-barred---Trial Court dismissed second application of the defendant filed under R. 11 of O. VII, C.P.C., with costs, which judgment was maintained by the District Court---Validity---Issue of limitation involves a mixed question of fact and law which requires evidence of parties---Additionally, present suit should be contested on its merits and question of maintainability is to be decided by the Trial Court after recording evidence---Contents and nature of the suit-in-question are unmistakable, which seeks damages for malicious prosecution---Petitioner's/defendant's persistent denial and stubborn insistence to the contrary (which has been demonstrated through vexatious and frivolous repeated application) will not alter this reality---Impugned judgments and orders passed by both the Courts below warrant no intervention---Constitutional petition, being merit-less, was dismissed, in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), O. VII, R. 11---Rejection of plaint, application for---Factual controversy---Constitutional petition---Maintainability---Plea of the defendant was that suit for damages for malicious prosecution filed by the plaintiff was time-barred---Trial Court dismissed second application of the defendant filed under R. 11 of O. VII, C.P.C., with costs, which judgment was maintained by the District Court---Validity---Trial Court is primarily responsible for assessing facts and High Court possesses the authority under Art. 199 of the Constitution to intervene in a limited scope, which encompasses rectifying jurisdictional errors and constitutional infringements---However, such circumstances were not found to be applicable in the present case---Impugned judgments and orders passed by both the Courts below warrant no intervention---Constitutional petition, being merit-less, was dismissed, in circumstances.

Petitioner in person.

2025 C L C 625

[Sindh]

Before Agha Faisal, J

BASHAM BALOCH and 5 others ---Plaintiffs

Versus

PROVINCE OF SINDH through Chief Secretary and others ---Defendants

Suit No. 244 of 2023, decided on 27th February, 2024.

Specific Relief Act (I of 1877)---

----Ss. 42, 54 & 56(k)---Civil Procedure Code (V of 1908), Ss. 10, 11 & O.VII, R.11---Suit for declaration and injunction---Rejecting of plaint---Res judicata, principle of---Applicability---Absence of personal interest---Plaintiffs claimed to be entitled to issuance of 99 years lease regarding suit land as they were permanent tenants---Defendants/Authorities sought rejection of plaint on the plea that multiple suits had been filed by plaintiffs against same defendants regarding same land---Plea raised by plaintiffs was that though there was no cavil to the consistency of parties, land etc. across the successive suits but each suit was actuated on a successive claim in respect of the same property---Validity---Multiple litigation under Ss. 10 and 11, C.P.C. is disapproved and O. II, R. 2, C.P.C. requires inter alia consolidation of successive claims within the same proceedings---Since the relief claimed in respect of same property was the same inter se then it would be conceivable that each suit could have different outcome---Present suit could not be permitted to be perpetuated, inter alia per O. II, R. 2, C.P.C., when same relief in respect of the same land was sought in other suits pending in the High Court---Plaint did not set forth any manifest entitlement to seek relief per Ss. 42 and 56(k) of Specific Relief Act, 1877 and non-compliance/non-conformity with said law was admitted---Unwarranted recourse to original civil jurisdiction was taken in prima facie derogation of statutorily mandated adjudication mechanism provided per Tenancy Act---Present suit pertained to same property/parties as already pending before the High Court, therefore, requirements for rejection of plaint had been satisfied---High Court in exercise of jurisdiction under O. VII R. 11, C.P.C. rejected the plaint---Application was allowed, in circumstances.

Al Meezan Investment Management Company Limited and others v. WAPDA First Sukuk Company Limited and others PLD 2017 SC 1; Haji Abdul Karim and others v. Florida Builders (Private) Limited PLD 2012 SC 247; Muhammad Jameel v. Abdul Ghafoor 2022 SCMR 348; Farrukh Afzal Munif v. Muhammad Afzal Munif and others 2019 CLC 431; Nasir Ali v. Muhammad Asghar 2022 SCMR 1054; Rao Abdul Rahman v. Muhammad Afzal 2023 SCMR 815; Mobeen Raza's case 2016 CLC Note 10; Ghulam Ali v. Sindh PLD 2020 Sindh 284; Atta Elahi v. Allah Bachaya 2024 CLC 18; Chatto Mirbahar and others v. Government of Sindh (Civil Revision 122 of 2010 High Court of Sindh at Sukkur)-judgment dated 25.04.2022; Raja Ali Shan v. Essem Hotel 2007 SCMR 741; Zain Khan and others v. Taj Roshan and others 2018 CLC Note 116; Maulana Nur ul Haq v. Ibrahim Khalil 2000 SCMR 1305; Muhammad Ramzan v. Muhammad Qasim 2011 SCMR 249 and Amsons Textiles v. Pakistan 2022 PTD 212 rel.

Rizwana Ismail for Plaintiffs.

Zeeshan Adhi (Additional Advocate General Sindh), Ayan Mustafa Memon and Dr. Ghulam Hyder, Officer In Charge-Live Stock, Experiment Station, Korangi, Karachi for Defendants.

2025 C L C 734

[Sindh]

Before Muhammad Karim Khan Agha and Adnan Ul Karim Memon, JJ

ABDUL KARIM LASHARI ---Petitioner

Versus

The GOVERNOR OF SINDH through Principal Secretary and others ---Respondents

Constitution Petition No. 313 of 2024, decided on 24th December, 2024.

Protection Against Harassment of Women at the Workplace Act (IV of 2010)---

----S. 4(4)(ii)(c)---Constitution of Pakistan, Art. 199---Constitutional petition---Harassment at workplace---Doctrine of election (of remedies)---Removal from service---Petitioner was proceeded departmentally for causing harassment at workplace and was removed from service under section 4 (4)(ii)(c) of Protection Against Harassment of Women at the Workplace Act, 2010---Plea raised by petitioner was that respondent/complainant invoked jurisdiction under Protection Against Harassment of Women at the Workplace Act, 2010, during pendency of departmental proceedings---Validity---In sexual harassment cases where remedy of complaint before department was extremely sluggish and often ineffective, the concept of election (of remedy) would not be applied---Respondent/complainant had abandoned her (departmental) complaint as it appeared to be going nowhere and had filed complaint before Ombudsman---Complaint under Protection Against Harassment of Women at the Workplace Act, 2010, gave more private, efficacious and speedy remedy in connection with a highly sensitive and personal matter, namely sexual harassment---Doctrine of election was inapplicable under Protection Against Harassment of Women at the Workplace Act, 2010 unless a decision had already been rendered by either the Ombudsman or Inquiry Committee---Ombudsman had full power under Protection Against Harassment of Women at the Workplace Act, 2010 to remove petitioner from service---High Court in Constitutional jurisdiction could not go into factual controversies and minutely examine evidence on record---High Court declined to interfere in the orders passed against the petitioner---Constitutional petition was dismissed, in circumstances.

Trading Corporation of Pakistan v. Devan Sugar Mills Limited PLD 2018 SC 828; Kinza Anwar v. Office of the Ombudsman for protection against harassment of women at the work place 2022 CLC 1477 and Raja Tanveer Safdar v. Mrs. Tehmina Yasmeen PLD 2024 SC 795 ref.

Malik Altaf Hussain for Petitioner.

Ali Safdar Deepar, Assistant Advocate General Sindh for Respondents Nos. 1 to 4.

Ashraf Ali Lashari, Law Officer for Respondent No. 5.

Shahbakht Pirzada for Respondent No. 6.

2025 C L C 778

[Sindh]

Before Ahmed Ali M. Shaikh, C.J. and Yousuf Ali Sayeed, J

Syed ANWAR ALI SHAH and 8 others ---Petitioners

Versus

PROVINCE OF SINDH through Chief Secretary, and 11 others ---Respondents

Constitution Petition No. D-1438 of 2022, decided on 24th March, 2023.

Sindh Local Government Act (LIII of 2013)---

----Ss. 8, 10, 13 & 17 [as amended by Sindh Local Government (Amendment) Act, 2015]---Constitution of Pakistan, Art. 199---Constitutional petition---Recategorization of Municipal Committee---Objections, non-filing of---Factual questions---Geography, topography and demography---Determination---Petitioners assailed notification issued by authorities upgrading status of Municipal Committee into Municipal Corporation---Objections were invited via publication in various newspapers---Petitioners did not participate on the ground that publication had appeared in obscure newspapers and envisaged short timeframe---Validity---This was not a sufficient cause to strike down notification in question---Questions pertaining to geography, topography and demographics of Deh (villages) raising factual questions could not be properly determined in proceedings under Constitutional jurisdiction---High Court declined to interfere in the notification recategorizing Municipal Committee in question---Constitutional petition was dismissed, in circumstances.

MQM and others v. Province of Sindh and others 2014 CLC 335; Government of Sindh v. MQM and others PLD 2014 SC 531 and Civil Petitions Nos. 841-K of 2022 and 2843 of 2022 ref.

Mian Raza Rabbani, Salim Salam Ansari, Zeeshan Abdullah, Adnan Abdullah and Sidra Hussain for Petitioners.

Sandeep Malani, Asstt. Advocate General, Sindh along with Saleem Shaikh, Assistant Commissioner on behalf of Administrator /DC, Mirpurkhas for Respondent No. 1.

Abdul Rauf Arain for Respondent No. 3.

Muhammad Nishat Warsi for Respondents Nos. 4 and 5.

Salahuddin Ahmed and Nadeem Ahmed for Respondents Nos. 6 to 12.

2025 C L C 801

[Sindh]

Before Muhammad Faisal Kamal Alam, J

NASEER KHAN ---Applicant

Versus

NISAR KHAN through Legal Heirs and others ---Respondents

Civil Revision Application No. 112 of 2013, decided on 31st December, 2024.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), Art. 129 (e)---Suit for declaration and injunction---Judgments at variance---Collusion between defendant and authorities alleged---Proof---Official acts---Presumption---Respondent/plaintiff claimed to be owner of suit plots and alleged that his real brother applicant/defendant sought leases of certain plots in his name in collusion with authorities, after getting leases cancelled from his name---Suit was dismissed by Trial Court but Lower Appellate Court decreed the same in favour of respondent/plaintiff---Validity---Collusion between applicant/defendant and authorities was not proved, therefore, presumption under Art. 129 (e) of Qanun-e-Shahadat, 1984 was applicable that official act had been regularly performed---Leases in favour of applicant/defendant were given by authorities as per rules and procedure---Rent cases filed against respondent/plaintiff and different tenants were decided in favour of applicant/defendant and judgment passed by High Court was in field---Lower Appellate Court did not exercise jurisdiction properly and reached a wrong conclusion by misreading evidence which was beyond the parameters of law---High Court set aside judgment and decree passed by Lower Appellate Court and restored that of Trial Court---Revision was allowed in, circumstances.

Muhammad Tamaz Khan for Applicant.

Zia-ul-Haq Makhdoom, Muhammad Azhar Mehmood and Hira Agha for Respondents Nos. 1(f) and 2.

Nemo for Respondent No. 3.

2025 C L C 823

[Sindh]

Before Shamsuddin Abbasi, J

MUHAMMAD SALEEM KHAN ---Appellant

Versus

Syed ATHAR HUSSAIN and 4 others ---Respondents

IInd Appeal No. 99 of 2023, decided on 25th October, 2024.

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

----O. VII, R.11(a) & (b)---Specific Relief Act (I of 1877), Ss.12, 28 & 54---Contract Act (IX of 1872), S.25---Qanun-e-Shahadat (10 of 1984), Arts.78, 79 & 117---Rejection of plaint---Oral agreement to sell on WhatsApp and email messages with son of the actual owner---Appellant instituting a suit for specific performance of the oral agreement---Non-mentioning of details qua oral agreement in the plaint---Effect---Contention of the respondent/actual owner was that such a suit without an agreement and authority in favour of his son to enter into an oral agreement was barred---Validity-Respondent was the sole and absolute owner of the suit plot and the appellant had failed to place on record any evidence that respondent (actual owner) ever intended or entered into any sale transaction in respect of the suit plot with the appellant either through WhatsApp messages or emails---Entire record of conversation through WhatsApp messages and emails was between appellant and son of actual owner, who was not competent to enter into a sale transaction with the appellant, more particularly when the actual owner in his written statement had specifically stated that he never authorized his son to fetch a buyer or enter into an agreement to sell in respect of the suit plot on his behalf---Appellant had failed to place on record any evidence as to oral transaction between him and the actual owner of the suit plot---Where sale was pleaded through oral agreement then the terms and conditions which were orally agreed were to be stated in detail in the pleadings---In such like cases, a party besides detailing subject matter of the sale and consideration was also required to provide other necessary details such as striking of the bargain, and names of the witnesses in whose presence the said oral transaction for sale was arrived at, which were the essential requirement for proving an oral agreement to sell---Not a single penny had been paid by appellant towards sale consideration and an amount, alleged to have been paid by the appellant, was paid to the Society towards dues and not as part of sale consideration---Appellant failed to make out a case for specific performance of an agreement to sell---Appeal was dismissed, in circumstances.

Sadaruddin v. Sultan Khan and others 2021 SCMR 642; Aroma Travel Services (Pvt.) Ltd. v. Faisal A Abdullah Al Faisal Al-Saud PLD 2018 Sindh 414; Ali Muhammad Khan v. Riazuddin Khera PLD 1981 Kar. 170; Muhammad Yasin v. Muhammad Ismail and others 2024 CLC 922; Messrs Haider Builders and Developers v. Pakistan Kumar and 2 others 2024 CLC 672; Pakistan Agricultural Storage and Services Corporation Ltd. v. Mian Abdul Latif and others PLD 2008 SC 371; Muhammad Ajmal v. Abdul Khaliq and others 2023 MLD 654; Muhammad Nawaz v. Haji Muhammad Baran Khan 2013 SCMR 1300; Inayatullah Khan and others v. Shabir Ahmad Khan 2021 SCMR 686 and Rao Abdul Rehman v. Muhammad Afzal 2023 SCMR 815 ref.

Muhammad Nawaz v. Haji Muhammad Baran Khan 2013 SCMR 1300 and Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others 2019 SCMR 524 rel.

(b) Specific Relief Act (I of 1877)---

----Ss. 12 & 54---Qanun-e-Shahadat (10 of 1984), 78, 79 & 117---Suit for specific performance of an oral agreement to sell---Denial of existence of relationship of seller and buyer---Burden to prove---Under Art. 117 of Qanun-e-Shahadat, 1984 (Order), the burden to prove an agreement either in writing or verbal rests on the party who claimed the same and not on the opposite party---Respondent had denied the existence of relationship of seller and purchaser, thus, Art.78 of the Order required the appellant to prove the execution of oral agreement as mandated by Art.79 of the Order, which provides that in order to prove an instrument which by law is required to be attested, it has to be proved by two witnesses.

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

----S. 100---Second appeal---Concurrent findings of fact by courts below---Interference in such findings by Second Appellate Court---Scope---Order/judgment passed by the two courts below were well reasoned and in accordance with law, thus, there was no reason to interfere in the concurrent findings of two courts below, which were outcome of a proper application of judicial mind to the facts and circumstances of the case.

Naseer Ahmed Siddique through legal heirs v. Aftab Alam and another PLD 2011 SC 323; Keramat Ali and another v. Muhammad Yunus Haji and others PLD 1963 SC 191 and Muhammad Iqbal and another v. Mukhtar Ahmad through L.Rs 2008 SCMR 855 rel.

Muhammad Vawda for Appellant.

Akhlaque Ahmed for Respondents Nos. 1 and 2.

2025 C L C 841

[Sindh]

Before Shamsuddin Abbasi, J

STATE BANK OF PAKISTAN ---Appellant

Versus

AZEEM ASSOCIATES through Partner ---Respondent

IInd Appeals Nos. 139 and 140 of 2022, decided on 29th November, 2024.

Damages---

----Rescission of contract for construction work and encashment of guarantee---Contractor/respondent instituted a suit for damages with injunction, which was decreed declining interest---Parties preferred respective appeals; however, the respondent's appeal was accepted, extending interest relief, and the appellant/bank's appeal was dismissed---Validity---Respondent placed sufficient evidence to substantiate that due to appellant's failure to perform its part of the contract within the stipulated time, the respondent suffered losses due to changed circumstances and a tremendous rise in relevant material prices, hence, it was entitled to damages---Appellant failed to lead evidence to negate the respondent's claim---Respondent's evidence remained un-shattered during cross-examination---Trial Court, based on evidence and documents, decreed the respondent's suit, which was maintained by the Appellate Court, which also granted interest declined by the Trial Court---Appellate Court's judgment and decree were well-reasoned and lawful, therefore, there was no reason to interfere in the Appellate Court's findings, which were the result of proper appreciation of evidence and material, as well as conscious application of mind to the case's facts and circumstances, hence, no interference was required by the High Court---Regular second appeals were dismissed, in circumstances.

PLD 2017 Islamabad 115; 2013 SCMR 507; 2015 SCMR 01; 2010 SCMR 829; 2019 CLC 01; 2019 SCMR 524; 2013 SCMR 1570; PLD 2002 SC 607; 2021 SCMR 1805 and 2020 SCMR 214 distingueshed.

2000 SCMR 254; 1996 SCMR 1729 and 2023 SCMR 1652 ref.

2006 CLD 107; Naseer Ahmed Siddique through legal heirs v. Aftab Alam and another PLD 2011 SC 323; Keramat Ali and another v. Muhammad Yunus Haji and others PLD 1963 SC 191; Bashir Ahmed v. Mst. Taja Begum and others PLD 2010 SC 906 and Muhammad Iqbal and another v. Mukhtar Ahmad through L.Rs 2008 SCMR 855 rel.

Mansoor Ahmed Alvi along with Alam Zaib, Law Officer and Abdul Jabbar, Engineer, SBP for Appellant.

Barrister Mian Haad A. M. Paggawala for Respondent.

2025 C L C 858

[Sindh]

Before Irfan Saadat Khan and Muhammad Faisal Kamal Alam, JJ

Mrs. NIGHAT NAEEM and others ---Petitioners

Versus

KARACHI DEVELOPMENT AUTHORITY and others ---Respondents

Constitutional Petition No. D-2116 of 2019, decided on 8th April, 2022.

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

----S. 47---Constitution of Pakistan, Art. 199---Execution of decree---Executing Court---Powers---Plaintiffs filed a suit challenging the action of the defendant (Karachi Development Authority/KDA) cancelling the plots allotted to them (plaintiffs), which suit was decreed as prayed for and was maintained upto High Court---Later, the Executing Court declined the plea of execution petitioners (Plaintiffs/decree-holders) for restoration of possession in respect of the suit-property---Only factor which weighed with the Executing Court for disallowing the prayer of possession of the petitioners, was that specific plea of possession was not sought in the suit, and the Executing Court cannot go beyond the decree---Revisional Court maintained the said order---Validity---High Court being a court of record with powers of supervision and correction of the orders passed by the inferior Courts cannot be said to be helpless in appropriate cases to pass such orders in order to do substantial justice and advance the cause of justice---In the present case, both the Courts had failed to observe or consider that the petitioners/plaintiffs were successful throughout in their prolonged and exhausting litigation spreading over three decades with the respondent/KDA, up to this (High) Court---Judgment and decree was handed down after a full dress trial, which had its own value, giving birth to right and interest in favour of decree holders---In such circumstances, if the relief of possession would have been given, it could not be said that the Executing Court had travelled beyond the judgment and decree---Secondly, in terms of S. 47 of the Civil Procedure Code, 1908 , an Executing Court is empowered to decide all questions relating to the execution---Thirdly, an implied objective of law is to ensure an orderly behaviour in a society and if on one hand some act is left unattended on the basis of certain technicalities and on the other hand a victim of wrongful act is left to run from pillar to post, then in due course of time, an orderly system of a society would be diminished and will be replaced by a disorderly and intolerant behaviour as well as lawlessness---High Court set-aside both impugned decisions passed by Revisional/District Court as well as Executing Court, and directed the respondents (Karachi Development Authority) to handover the peaceful physical possession of the subject-property forthwith to the petitioners---Constitutional petition was allowed accordingly.

Javaid Iqbal v. Abdul Aziz and another PLD 2006 SC 66; Haji Abdul Wali Khan and another v. Mohammed Hanif and another 1991 SCMR 2457 and Mansoor Ashraf v. Province of Sindh and others SBLR 2017 Sindh 105 ref.

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

----S. 47---Constitution of Pakistan, Arts. 24 & 199---Execution of decree---Executing Court---Powers---Plaintiffs filed a suit challenging the action of the defendant (Karachi Development Authority/KDA) cancelling the plots allotted to them (plaintiffs), which suit was decreed as prayed for, and said decree was maintained upto High Court---Later, the Executing Court declined the plea of execution petitioners (plaintiffs/decree-holders) for restoration of possession in respect of the suit-property---Only reason/factor weighed with the Executing Court for disallowing the prayer of possession of the petitioners, was that specific plea of possession was not sought in the suit, and Executing Court could not go beyond the decree---Revisional Court maintained the said order---Validity---Since valuable rights and interest had accrued to the petitioners and rights being proprietary rights were protected by the Art. 24 of the Constitution thus, the relief of possession should have been granted by the Courts below which had not properly exercised the jurisdiction vested in them, resulting in hardship and injustice to the petitioners, which could be corrected in the constitutional jurisdiction---High Court set-aside both impugned decisions passed by Revisional/District Court as well as Executing Court and directed the respondents (Karachi Development Authority) to handover the peaceful physical possession of the subject-property forthwith to the petitioners---Constitutional petition, was allowed accordingly.

Masjood Ali Memom for Petitioners.

Altaf Ahmed Sahar for Respondent No. 1.

Miran Muhammad Shah, Additional Advocate General Sindh for Respondent No. 2.

2025 C L C 876

[Sindh]

Before Shamsuddin Abbasi, J

NANIK RAM JETHWANI ---Petitioner

Versus

LAKHMICHAND WADWANI through legal heirs/representatives and 2 others ---Respondents

Civil Petition No. S-189 in M.A. No. 1542 of 2023 and C.P. No. S-76 of 2021 in M.A. No. 5504 of 2022, decided on 20th November, 2024.

(a) Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 15(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Default in payment of rent and bona fide personal need of land lord---Denial of relation of landlord and tenant on the ground of business partnership---Ejectment application filed by the landlord was dismissed by the Rent Controller but Appellate Court ordered eviction---Validity---Petitioner though asserted that he was not a tenant of the landlord and was enjoying the premises in the capacity of partner, but failed to place on record any evidence or any other material that might prove his plea, whereas sufficient material had been placed on record on behalf of the landlord on the point of existence of relationship of landlord and tenant, commission of default and personal bona fide need---Constitutional petition was dismissed, in circumstances.

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

----O. XLI, R. 24---Sindh Rented Premises Ordinance (XVII of 1979), S.15(2)--- Where evidence on record sufficient---Power of Appellate court to determine case finally---Scope---Plea of the petitioner (tenant) was that the Appellate Court instead of passing the eviction order should have remanded the matter to the Rent Controller---Validity---Appellate Court while deciding a matter, if found fit, may decide the case on merits without remanding the case to the Trial Court---Remanding of case causes prolongation of the agony of the parties---Plea of petitioner was rejected.

Ashiq Ali v. Mst. Zamir Fatima PLD 2004 SC 10 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Conflicting decisions of courts below---Decision of Appellate Court---Preference---In case of conflicting decisions, the Appellate Court's findings should be given weight and respect unless it is clear from the record that such findings are not evidence-based and are materially illegal.

Rao Abdul Rehman (deceased) through legal heirs v. Muhammad Afzal (deceased) through legal heirs and others 2023 SCMR 815 rel.

Ali Ahmed Tariq for Petitioner.

Mukesh Kumar G. Karara along with Sajid Ali Channa for Respondent No.1.

Ali Zardari, A.A.G.

2025 C L C 896

[Sindh]

Before Arshad Hussain Khan and Ms. Sana Akram Minhas, JJ

MIR MUHAMMAD and another ---Petitioners

Versus

ADDITIONAL CHIEF SECRETARY, FINANCE DEPARTMENT KARACHI and others ---Respondents

C.P. Nos. D-1754 of 2014 and D-203 of 2023, decided on 21st October, 2024.

Land Acquisition Act (I of 1894)---

----Ss.28A & 34---Acquisition of land---Compensation--- Unpaid claim, verification of---Fraud---Fictious documents---Petitioners claimed recovery of alleged unpaid amount of compensation with interest, dating back to 15-9-1975 up to the present date, under the provisions of the Land Acquisition Act, 1894---Validity---Petitioners' claims were grounded on fraud and based on fictitious documents---Petitioners managed to prolong the proceedings for years, wasting the Court's valuable time---Actions of petitioners were not only vexatious but also abuse of judicial process---One of the two petitioners deceitfully extracted a sum of Rs.3,743,181/- by misleading Court into granting orders in his favour---These were the cases where imposition of special costs were fully justified---Assertion made by authorities that entire claims of both petitioners were fraudulent and based on forged documents was enough to dismiss the petitions---Fraudulent conduct of petitioners had disqualified them from receiving any favourable judgment---High Court directed the petitioners to deposit costs of Rs.2,000,000/- (Rupees Two Million) each---High Court directed one of the petitioners who had already received a sum of Rs.3,743,181/- as alleged compensation, to return/redeposit the amount---High Court further directed that in case any petitioner failed to deposit his respective amounts within the stipulated period, the office of High Court would immediately fix the matters in Court for further orders---Constitutional petition was dismissed, in circumstances.

Dilshad v. Senior Superintendent of Police PLD 2007 Kar 330; Government of West Pakistan v. Muhammad Sadiq PLD 1968 Kar 697 and Zakir Mehmood v. Secretary Ministry of Defence 2023 SCMR 960 rel.

Muhammad Aslam Bhatti for Petitioners.

Allah Bachayo Soomro, Additional Advocate General, Rafiq Ahmed Dahri, Assistant Advocate General along with Ghulam Sarwar Bhanbhro, Assistant Commissioner, Tando Ghulam Hyder, Zameeruddin, Executive Engineer, Drainage Division Badin and Ishtiaq Ahmed, Assistant Engineer Tando Muhammad Khan Sub-Division for Respondents.

2025 C L C 953

[Sindh]

Before Shamsuddin Abbasi, J

YASIR MUMTAZ ALI ---Petitioner

Versus

Mst. HUMA RAFIQ and 2 others ---Respondents

Constitutional Petition No. S-164 of 2022, decided on 23rd September, 2024.

(a) Guardians and Wards Act (VIII of 1890)---

----S. 25---Custody of minor---Determining factors---Welfare of minor daughter as the paramount consideration---Second marriage of husband---Effect---Hizanat, right of---Plea of second marriage of wife/respondent---Held, that if the contention with regard to second marriage of the respondent (mother) was taken as true, even then welfare and well-being of the minor daughter was with her real mother in view of the fact that the petitioner was a truck driver and remained out of home for his job and it would never be in the interest and welfare of the minor to remain in custody of her step-mother more particularly when her real mother was alive---Paramount consideration while deciding the question of custody is the welfare of the minor irrespective of age, sex, and religion---Primarily, welfare includes his/her moral, spiritual and material wellbeing---While considering what is the welfare of the minor the Court should have regard to the age, sex, religion of the minor, the character and capacity of the proposed guardian and the preference of the minor, if he or she is intelligent enough to make it---In cases, concerning custody of a child, the Family Court is not required to go into intricacies/technicalities of the matter and should confine its findings to the extent of welfare of the child/minor, which is a paramount consideration---In the present case minor was aged about 10 years and she could not be taken away from the mother, who was more caring to her daughter, and due to her love and affection had not contracted second marriage and made hectic efforts by running from pillar to post merely to continue custody of her daughter---In contrast the petitioner (father) took a second wife---Constitutional petition was dismissed, in circumstances.

Mst. Razia Rehman v. Station House Officer and others PLD 2006 SC 533 rel.

(b) Qanun-e-Shahdat (10 of 1984)---

----Art. 164---Guardians and Wards Act (VIII of 1890), S. 25---Custody of minor---Photographs of Nikah as proof of second marriage of mother---Evidentiary value---Mere photographs, in absence of Nikahnama and/or any witness of Nikah, did not establish factum of second marriage.

(c) Constitution of Pakistan---

----Art. 199---Guardians and Wards Act (VIII of 1890), S. 25---Custody of minor---Parental jurisdiction of High Court---Scope---High Court, exercising jurisdiction under Art. 199 of the Constitution, must exercise parental jurisdiction and is not precluded from giving due consideration to the welfare of the minor, ensuring no physical or emotional harm occurs due to the breakdown of parental ties---Courts are custodians of minors and have ample powers under the law and the Constitution to protect their interest, ensuring physical safety, emotional well-being and welfare after a balanced and dispassionate assessment.

Mirjam Aberras Lehdeaho v. S.H.O., Police Station Chung, Lahore and others 2018 SCMR 427 and Mst. Madiha Younus v. Imran Ahmed 2018 SCMR 1991 rel.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Concurrent findings of facts---Re-appraisal of evidence---Under constitutional jurisdiction re-appraisal of evidence in order to have a different conclusion than one already inferred by the courts below has never been considered an option to be upheld---Court under constitutional jurisdiction has to see whether any illegality has been committed by the forums below or the findings of the fact are based on material extraneous to the pleadings of the parties to justify interference on its part.

Ms. Naheed Shahid for Petitioner along with Petitioner.

Ms. Zainab Lashari for Respondents along with Respondent No. 1 and Minor Baby Alizay.

Suresh Kumar, Additional Advocate General.

2025 C L C 966

[Sindh]

Before Muhammad Shafi Siddiqui and Sana Akram Minhas, JJ

KARIM DAD KHAN through L.R ---Petitioner

Versus

MANSAB DAD KHAN and others ---Respondents

Constitutional Petition No. D-2431 of 2023, decided on 27th May, 2024.

Limitation---

----Significance---Conduct of party---Intention of prolonging litigation---Costs, imposition of---Statute of limitations is not a trivial technicality; it stands as a cornerstone legal principle designed to ensure fairness and finality in legal proceedings---Once period of limitation expires, valuable rights accrue to the other party by operation of law and such right cannot be taken away lightly---In the present case ,Constitutional petition was filed being aggrieved by an order of the Appellate / District Court, by which Civil Revision Application was dismissed as being time barred and five (5) orders of the Trial Court were upheld ;however, four out of the five orders were time-barred and the Revision Application had become infructuous regarding the fifth order (as decree had been executed by handing over possession of suit-property)---Even the present constitutional petition, was affected by laches---This was due to its submission nearly four years after the issuance of the first four orders and more than one year after the fifth order---Petitioners' lackadaisical attitude demonstrated lack of seriousness and suggested an intent merely to entangle and embroil the respondents in prolonged, obdurate litigation, especially since most of the original siblings had expired---It seemed that the petitioner was pursuing baseless and vexatious litigation, akin to flogging a dead horse---Constitutional petition was dismissed, with costs of Rs. 35,000/-, in circumstances.

SKB-KNK Joint Venture v. Water and Power Development Authority 2022 SCMR 1615; Musarat Parveen v. Muhammad Yousaf 2023 SCMR 1665 and Chief Executive Officer NPGCL v. Khalid Umar Tariq 2024 SCMR 518 ref.

Fareed Ahmed for Petitioner.

Nemo for Respondents.

2025 C L C 975

[Sindh (Larkana Bench)]

Before Abdul Hamid Bhurgri, J

GHULAM RASOOL ---Petitioner

Versus

Mst. JANNAT KHATOON ---Respondent

Constitutional Petition No. S-342 of 2024, decided on 24th March, 2025.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched---Family Courts Rules, 1965, R.5---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of maintenance, medical and delivery-related expenses---Scope---Husband's (petitioner) application for return of plaint of the wife on the ground of limitation and lack of territorial jurisdiction of the Family Court was dismissed concurrently---Validity---No plea of limitation was raised in the written statement---Despite that, the petitioner subsequently filed an application under S. 5 of the Family Court Rules, 1965 in a seemingly contrived effort to delay the proceedings and subject the respondent No. 1 (wife) to prolonged hardship---Conduct of petitioner appeared manifestly calculated to defeat the legitimate claims of respondent No. 1---Petitioner's argument regarding limitation was untenable---Obligation to provide maintenance was a continuing one, rooted in Islamic Injunctions and transcended the limitations imposed by special statutes---It was the unequivocal responsibility of a man to meet the educational, medical and subsistence needs of his spouse and children---Petitioner's failure to fulfill these obligations since 2007 was not only reprehensible but amounted to deliberate cruelty, both mental and economic---Family Courts Act, 1964, is a remedial statute designed to secure expeditious relief in family matters, which precluded the availability of a second appeal, intending to place a definitive end to prolonged family litigation---Conduct of the petitioner in the present matter was precisely what the legislature sought to curtail---Minor child had suffered years of neglect and deprivation owing to the petitioner's indifference---Petitioner, through the petition, was seeking merely to frustrate the judicial process and prolong the agony of the respondent No.1 and her child---In the light of prima facie mala fide conduct apparent from the record, the petition was not maintainable---Both impugned orders were well-reasoned and judiciously rendered, and no reason to interfere was found---Petition stood dismissed, in limine.

Mushtaq Hussain Bokhari v. The State and 6 others 1991 SCMR 2136; Maliha Hussain v. Additional District Judge-V and another 2017 MLD 485; Syed Saghir Ahmed Naqvi v. Province of Sindh through Chief Secretary S&GAD Karachi and others 1996 SCMR 1165; Arif Fareed v. Bibi Sara and others 2023 SCMR 413; M. Hamad Hassan v. Mst. Isma Bukhari and 2 others 2023 SCMR 1434 and Muhammad Shamim Ali v. Mst. Asma Begum and others 2024 SCMR 1642 rel.

Muhammad Ibrahim Lashari for Petitioner.

Nemo for Respondents.

2025 C L C 997

[Sindh]

Before Muhammad Shafi Siddiqui and Jawad Akbar Sarwana, JJ

AMIR MEHMOOD ---Petitioner

Versus

IZHARUDDIN and others ---Respondents

C.P. No. D-4111 of 2020, decided on 6th November, 2023.

Civil Procedure Code (V of 1908)---

----S. 12---Specific Relief Act (I of 1877), S. 12---Suit for specific performance---Legal heirs of an applicant, who had filed an application under S. 12(2), C.P.C. contesting the case---Entitlement---Applicant, who had filed an application under S. 12(2), C.P.C., died while he had assailed dismissal of his application against ex-parte decree by way of filing revision application before the Appellate/District Court---Petitioner/plaintiff assailed judgment passed by appellate/District Court, which, while setting aside ex-parte decree sent the matter for trial to be contested by the parties including legal heirs of the applicant---Validity---Record revealed that performance was sought by the petitioner/plaintiff in the suit against the person (defendant/respondent), who prima facie was only a partner in the business and not the co-owner of the land/project ('property-in-question'); said defendant might have a dispute with the co-partner within their partnership business related to accounts but could not prima facie be deemed to bean owner of the property-in-question---The preferential right of the parties in relation to the property-in-question, if at all pressed, could only be determined during trial in presence of the legal heirs of respondent (applicant under section 12(2) C.P.C.) and not otherwise---The suit in the shape of a claim of the petitioner being pending would be defended by the parties including the legal heirs of applicant under section 12(2), C.P.C., and fresh evidence in this regard may be recorded by the trial court in the said suit, if so desired---No interference was required in the impugned judgment passed by the Appellate/District Court ordering to send the case for trial while setting-aside ex-parte decree---Constitutional petition was dismissed, in circumstances.

Abdul Qayyum Abbasi for Petitioner.

Muhammad Khalid for Respondent No. 4.

Sandeep Malani, Assistant Advocate General Sindh for Respondents.

2025 C L C 1018

[Sindh (Sukkur Bench)]

Before Arbab Ali Hakro, J

FAZUL HUSSAIN (deceased) through L.Rs and 6 others ---Applicants

Versus

MUKHTIAR AHMED through attorney and others ---Respondents

Civil Revision Applications Nos. S-30, S-32 and S-33 of 2015, decided on 31st May, 2024.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), Art. 100---Suit for declaration and injunction---Thirty years old document---Presumption---Respondent / plaintiff claimed to be owner of suit property on the basis of sale deeds registered more than thirty years ago---Trial Court as well as Lower Appellate Court decreed the suit and appeal in favour of respondent / plaintiff---Validity---Sale deeds over 30 years old carried presumption of correctness under Art. 100 of Qanun-e-Shahadat, 1984---Substantial evidence was required to cast aspersion on genuineness of such sale deeds and a presumption of truth was attached to documents registered under Registration Act, 1908---Applicants / defendants were required to rebut such presumption at the trial, which they had failed to do conclusively---Both the Courts below had appropriately and lawfully evaluated the evidence available on record and correctly decreed suit of respondent / plaintiff to the extent of his entitlement of possession---Such conclusion was based on a comprehensive analysis of evidence---Legal heirs of deceased owner of suit property were bereft of any further right to claim any share in suit property---High Court declined to interfere in judgments and decrees passed by two Courts below---Revision was dismissed, in circumstances.

Mirza Muhammad Sharif and 2 others v. Mst. Nawab Bibi and 4 others 1993 SCMR 462; Abdul Haq and another v. Mst. Surrya Begum and others 2002 SCMR 1330 and Muhammad Rustam and another v. Mst. Makhan Jan and others 2013 SCMR 299 ref.

Syed Jaffar Ali Shah for Applicants (in Civil Revision Application No. S-30 of 2015).

Asif Hyder K. Phulpoto for Respondents Nos. 1, 5 to 20 (in Civil Revision Application No. S-30 of 2015).

Zameer Ahmed for Respondent No. 4 (in Civil Revision Application No. S-30 of 2015).

Ahmed Ali Shahani, Additional Advocate General for Province of Sindh and others (in Civil Revision Application No. S-30 of 2015).

Sarfraz A. Akhud for Applicants (in Civil Revision Application No. S-32 of 2015).

Asif Hyder K. Phulpoto for Respondents Nos. 16 to 26 (in Civil Revision Application No. S-32 of 2015).

Zameer Ahmed for Respondent No. 10 (in Civil Revision Application No. S-32 of 2015).

Ahmed Ali Shahani, Additional Advocate General for Province of Sindh and others (in Civil Revision Application No. S-32 of 2015).

Asif Hyder K. Phulpto for Applicants (in Civil Revision Application No. S-33 of 2015).

Sarfraz A. Akhund for Respondents Nos. 1, 4 to 10 and 12 to 15 (in Civil Revision Application No. S-33 of 2015).

Zameer Ahmed for Respondent No. 11 (in Civil Revision Application No. S-33 of 2015).

Ahmed Ali Shahani, Additional Advocate General for Province of Sindh and others (in Civil Revision Application No. S-33 of 2015).

2025 C L C 1054

[Sindh]

Before Shamsudin Abbasi, J

Messrs MEHMOOD BROTHERS through Co-tenant Attorney ---Petitioner

Versus

YOUSUF ALI and 3 others ---Respondents

Constitution Petition No. S-1104 and C.M.A. No. 8127 of 2023, decided on 20th February, 2025.

Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 15---Constitution of Pakistan, Art. 199---Limited scope of constitutional jurisdiction in rent matters---Ejectment application based on bona fide personal need of landlord / landlady---Eviction ordered by Rent Controller---Scope---Requirement for eviction under personal use---Establishing landlord's need is genuine and in good faith---Unshaken and consistent testimony of landlord sufficient to prove bona fide need---Payment of goodwill ("Pagri") not recognized as a defense under Sindh Rented Premises Ordinance, 1979---The petitioner (tenant) filed a constitutional petition under Art. 199 of the Constitution of Pakistan, 1973, challenging concurrent findings of two courts which ordered eviction on the ground of personal bona fide need---Respondent No. 1 (land lady) filed ejectment application under S. 15(2)(vii) of the Sindh Rented Premises Ordinance, 1979 for eviction of the petitioner from shop No. 1 claiming personal bona fide need for the use of her son---The petitioner claimed the eviction was based on mala fide intention and lacked genuine bona fide need---The key legal issue was whether Respondent No. 1 (land lady) required the premises for the bona fide personal use of her son---The Rent Controller allowed the eviction directing the petitioner to vacate the premises within 60 day---Petitioner filed appeal which was dismissed and aggrieved by the concurrent judgments, filed the present constitutional petition---Held: Section 15 of the Ordinance, 1979 empowered a landlord / landlady to seek eviction of tenant on the grounds mentioned therein including the ground of personal bona fide need for his / her own occupation or use or for the occupation or use of his spouse or any of his children---The only requirement in this provision for landlord / landlady was to show that he / she required the premises in good faith---The respondent No. 3 (land lady) in her rent application had specifically stated that the demised premises was required by her for the use and occupation of her son who also stepped in witness box and deposed in the same line as stated and deposed by his mother---If the statement of landlord / landlady came on oath and remained consistent with application for ejectment and was not shaken in cross-examination, it was sufficient to prove that requirement of landlord / landlady was bona fide---As to the contention that during subsistence of tenancy, the petitioner had paid huge amount towards goodwill ("Pagri") in respect of the rented shop, the term goodwill ("Pagri") was not recognized by Sindh Rented Premises Ordinance, 1979, however, the superior Courts had equalized it with term "Pagri"---The plea of a tenant that he paid goodwill ("Pagri") for premises, in no manner could succeed as a ground of defence when eviction of tenant was being sought by the landlord, however, if for the sake of arguments it was presumed that goodwill ("Pagri") amount was paid in respect of demised shop, even then it would not have debarred the respondent No. 1 from seeking eviction of the petitioner on the ground of personal bona fide need or any other ground as defined in Sec. 15 of the Ordinance---Under constitutional jurisdiction, the High Court avoided giving contrary findings until and unless the same were proved to be perverse and contrary to record---Besides, the powers of the High Court in rent matters under its constitutional jurisdiction were limited and confined only to ascertain whether the Courts below had flouted the statute or failed to follow the law relating thereto---In the case in hand, neither there was any jurisdictional error nor any perversity, illegality and infirmity in the order / judgment impugned---Constitutional petition was dismissed, in circumstances.

Akhtar Qureshi v. Nisar Ahmed 2000 SCMR 1292 and Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCMR 1925 rel.

Zahid Hussain for Petitioner.

Ms. Erum for Respondent No. 1.

2025 C L C 1083

[Sindh (Larkana Bench)]

Before Arbab Ali Hakro, J

ABDUL SAMI KEHAR ---Applicant

Versus

AMANULLAH DASTI and 8 others ---Respondents

Civil Revision Application No. S-135 of 2022, decided on 27th November, 2024.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O. XIX, R.1---Suit for specific performance---Oral agreement to sell---Proof---Failure of the applicant to give essential details in the plaint---Absence of receipts/written evidence as to payment of earnest money---Lack of critical explanation by supporting evidence for the purported relationship between the parties, which prompted the applicant not to reduce the agreement into writing---Identical affidavit in evidence---Admissibility---Discrepancies in the statements of prosecution witnesses---Suit and appeal of the applicant were dismissed concurrently---Validity---Only through rigorous and detailed presentation of evidence the court could be persuaded to issue a decree for specific performance based on an oral agreement to sell---Legal threshold for proving an oral agreement was inherently high due to the absence of written documentation, thus necessitating a robust and meticulous evidentiary approach to satisfy judicial scrutiny---Failure to specify essential details, the absence of written evidence of earnest money, and the lack of a credible explanation or supporting evidence for the purported relationship between the parties all cast significant doubt on the validity of the plaintiff's claim---Both marginal witnesses submitted nearly identical affidavits-in-evidence and such uniformity can sometimes call into question the individuality and spontaneity of their testimonies, as overly similar affidavits suggest coordination rather than independent recounting of the events---While consistency is a crucial element in legal testimonies, the absence of distinct details from each witness can significantly impact the perceived authenticity and reliability of their evidence, thus, it was imperative for each witness to provide testimony based on their personal observations and experiences to bolster the overall credibility of the case---Discrepancies in the details provided during cross-examination highlighted significant contradictions in the witnesses' testimonies, undermining the credibility of the plaintiff's claim and raising questions about the reliability of the evidence presented---Civil revision was dismissed, in circumstances.

2001 SCMR 1700; PLD 1962 Dacca 643; 1993 SCMR 183; PLD 1972 SC 25; 2021 MLD 1983; 1996 CLC 1758; 2000 SCMR 1647 and 2021 SCMR 605 ref.

Hafiz Qari Abdul Fateh through L.Rs. v. Ms. Urooj Fatima and others 2024 SCMR 1709; Maqbool Ahmad v. Suleman Ali PLD 2003 SC 31; Muhammad Riaz and others v. Mst. Badshah Begum and others 2021 SCMR 605 and Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1300 rel.

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

----S. 115---Concurrent findings of facts---Interference by High Court in its revisional jurisdiction---Scope---Neither any illegality nor material irregularity was found in the impugned judgments and decrees passed by the lower courts, nor any jurisdictional defects had been identified in the concurrent findings of fact, thus, there was no basis for High Court to exercise its revisional jurisdiction in the absence of any illegality or jurisdictional error---Petition was dismissed, in circumstances.

Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469 rel.

Imdad Ali Mashori for Applicant.

Zafar Ali Malgani for Respondents Nos. 1 to 4.

Munawar Ali Abbasi, Assistant Advocate General for Respondents Nos. 5 to 9.

2025 C L C 1096

[Sindh]

Before Mohammad Abdur Rahman, J

GHULAM RASOOL and another ---Appellants

Versus

CHIEF ELECTION COMMISSIONER through Provincial Election Commissioner Sindh and 18 others ---Respondents

Election Appeal No. 06 and C.M.A. No. 3512 of 2023, decided on 22nd August, 2023.

Elections Act (XXXIII of 2017)---

----Ss. 101(2), 155 & 229---Sindh Local Government Act (XLII of 2013), S. 54---Local Bodies elections---Recounting of votes---Election Commission, jurisdiction of---Appellants won election of union council concerned by a margin of two votes---On recount of ballots by the order of Chairman of Election Commission of Local Bodies, the respondent was declared as returned candidate---Validity---Chairman of Election Commission of Local Bodies was clearly not prohibited under section 101(2) of Elections Act, 2017 from conducting a recount of votes for election of union council concerned---Chairman of Election Commission of Local Bodies exercised his discretion judiciously and fairly and there was no fault in his findings---High Court declined to interfere in the order passed by Chairman of Election Commission of Local Bodies, as there was no illegality or irregularity committed in the orders passed by him---Appeal was dismissed, in circumstances.

Jam Madad Ali v. Asghar Ali Junejo 2016 SCMR 251; Sheikh Iftikharuddin v. District Judge Bahawalpur Exercising Powers of Election Tribunal for Union Council of District Lodhran and 8 others 2002 SCMR 1253; Sohail Akhtar Abbasi v. Syed Amir Ali Shah 2006 CLC 1319; Yawar Ali Khan v. Aabid Hussain Rajput 2004 YLR 1546; Ghulam Haider v. Muhammad Younis 1990 CLC 1; Muzaffar Abbas v. Election Commission of Pakistan through Chairman and others PLD 2018 Lah. 678; Muhammad Ibrahim Qasmi v. Syed Aliq Shah 2011 CLC 606 and Ijaz Ahmed Cheema v. Syed Iftikhar Hussain and another 1995 CLC 1426 rel.

Syed Mureed Ali Shah for Appellants.

Sarmad Sarwar and Abdullah Hanjra, Law Officers for Respondents.

Shabbir Ahmed Kumbhar and Muhammad Nawaz Tahiri for Respondents Nos. 11 and 12.

2025 C L C 1116

[Sindh]

Before Shamsuddin Abbasi, J

Messrs CEDAR PRIVATE LIMITED through Authorized Representative ---Petitioner

Versus

SENIOR CIVIL JUDGE-II/RENT CONTROLLER KARACHI SOUTH and 2 others---Respondents

Constitution Petition No. S-215 of 2023, decided on 9th September, 2024.

(a) Sindh Rented Premises Ordinance (XVII of 1979)---

----Ss.15, 16(1) & 16(2)---Constitution of Pakistan, Art.199---Eviction of tenant---Willful default in payment of rent and infringement of tenancy agreement---Pendency of civil suits regarding the premises---Filing of application by the landlord for deposit of arrears of rent and future rent---Passing of tentative order of deposit of arrears of rent and future rent---Contention of the tenant was that the Rent Controller was not competent to pass order of tentative rent---Validity---Rent Controller can pass order to deposit tentative rent, arrears of rent and future rent in court under S. 16(1) of the Sindh Rented Premises Ordinance, 1979 (Ordinance), by making a tentative assessment of the proceedings before him/her---While passing a tentative rent order, the Rent Controller is not required to hold a full-fledged enquiry and can always pass such an order after taking into consideration the versions of the parties---Mere institution of a suit, per se, would not be sufficient to refuse compliance of the order of the Rent Controller passed on an application under S. 16(1) of the Ordinance pending final determination---Compliance of order passed under S. 16(1) is obligatory and failure thereof can entail striking of right of defence under S. 16(2) of the Ordinance---Respondent placed on record a copy of the order, whereby plaints of both the suits were rejected under O. VII, R. 11, C.P.C.---Constitutional petition was dismissed, in circumstances.

Mst. Zahida Parveen v. Iftikhar Hussain and others 2019 YLR 474; Messrs United Bank Limited v. Banking Court No. II and others 2012 CLD 1556; Zahid Khan v. Mst. Razia Khatoon and another 2020 YLR 192; Noor Hussain v. Pakistan Steel 1990 CLC 804; Ashfaq ur Rahman v. Chaudhri Muhammad Afzal PLD 1968 SC 230; Mrs. Durre Shamim Rafi v. Muhammad Zubair Khan and another 2013 CLC 1021; Messrs Pak Mubarak Iron and Industrial Syndicate Ltd. v. Messrs Sadiq Traders Ltd. 1968 SCMR 1364; Naveed Amjad v. Abdullah Naveed and others 2011 SCMR 1296; V.N. Vesudeva v. Kirorimal Luhariwala Civil Appeal No. 1041 of 1963; President All Pakistan Women Association Peshawar Cantt v. Muhammad Akbar Awan and others 2020 SCMR 260; Zahid Khan v. Mst. Razia Khatoon 2020 YLR 192; Mian Manzar Bashir and others v. M.A. Asghar and Co. PLD 1978 SC 185; Messrs DW Pakistan (Private) Limited v. Begum Anisa Fazi and others 2023 SCMR 555 and Bashir Ahmed v. Messrs Roots School Network and others 2011 SCMR 290 ref.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Nature and scope---Constitutional jurisdiction is equitable and discretionary in nature and should not be exercised to defeat or bypass the purpose of a validly enacted statutory provision.

(c) Sindh Rented Premises Ordinance (XVII of 1979)---

----Ss. 15 & 16(1)---Constitution of Pakistan, Art.199---Eviction of tenant---Interlocutory order of deposit of arrears of rent and future rent---Interference by the High Court in its constitutional jurisdiction---Scope---Jurisdiction of High Court under Art. 199 of the Constitution cannot be invoked against an interlocutory order until and unless such an order suffers from any illegality or jurisdictional error.

Mst. Seema Begum v. Muhammad Ishaq and others PLD 2009 SC 45; Syed Asghar Hussain v. Muhammad Owais and others 2018 SCMR 1720 and Muhammad Iqbal Haider v. Ist ADJ Karachi Central and others PLD 2018 SC 35 rel.

Ahmed Masood and Adil Channa for Petitioner.

Ovais Ali Shah for Respondent No. 2.

Suresh Kumar, Additional Advocate General.

2025 C L C 1131

[Sindh]

Before Muhammad Shafi Siddiqui and Omar Sial, JJ

CEDAR (PVT.) LIMITED ---Appellant

Versus

SONERI BANK LIMITED through Manager and 2 others ---Respondents

High Court Appeal No. 234 of 2023, decided on 23rd January, 2024.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Sindh Rented Premises Ordinance (XVII of 1979), S. 12---Intra Court Appeal---Suit for declaration and injunction---Rented premises---Non-deposit of rent by tenant due to change to property---Necessary repairs of premises---Procedure---Appellant / plaintiff was tenant in suit property and had stopped paying rent due to damage to the premises---Judge in Chambers of High Court directed appellant / plaintiff to deposit rent in Court---Validity---Subject matter of suit related to outstanding rent to be paid through cheques and that was it---Rent could have been paid through other modes however the subject was outstanding rent---Issue of repair of premises has been encompassed in S. 12 of Sindh Rented Premises Ordinance, 1979 and gives responsibility to landlord to make necessary repairs other than structural alteration to the premises---On failure of such obligations, issue can be raised before Rent Controller by tenant by moving an application---Rent Controller may direct landlord, after an inquiry, as required and deemed necessary by Rent Controller---If Rent Controller thinks necessary that such repairs may be made by tenant, only then the cost may be deducted from rent which is payable by tenant and not otherwise---Rent of the premises cannot be withheld unless order as required under S. 12 of Sindh Rented Premises Ordinance, 1979, was passed directing landlord to carry-out repairs and the amount as adjudged, and only then tenant could be permitted to withhold the amount subject to the condition that such amount as adjudged was actually spent---Division Bench of High Court declined to interfere in the order passed by Judge in Chambers of High Court---Intra Court Appeal was dismissed, in circumstances.

Haider Waheed and Aadil Channa for Appellant.

Ovais Ali Shah and Jahanzeb Balouch for Respondent No. 2.

2025 C L C 1175

[Sindh]

Before Muhammad Iqbal Kalhoro and Muhammad Osman Ali Hadi, JJ

Messrs OILBOY (PVT.) LTD. ---Appellant

Versus

Messrs PAK QATAR INVESTMENT (PVT.) LTD. through authorized person ---Respondent

1st Appeal No. 09 of 2024, decided on 20th March, 2025.

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

----O.XXXVII, Rr. 1, 2---Negotiable Instruments Act (XXVI of 1881), S. 28---Summary suit for recovery on the basis of dishonored cheques filed by the respondent against the CEO of the appellant company---Application for leave to defend by the CEO was dismissed on account of admissions and as a result the appellant company filed the appeal before the High Court---Appellant company took a plea that suit was filed against CEO instead of the company---The central moot point for determination by the High Court was whether a company, as a separate legal entity, could be held liable for a dishonored cheque issued in its name when the suit was filed against the CEO rather than the company itself---Specifically, the issue was whether the CEO, acting as an agent for the company, could be personally liable in such a suit or whether the company must be made a party to the suit, considering that the company was a distinct legal entity, and the CEO's actions were carried out in his capacity as the company's representative---Whether the failure to name the appellant company as a party to the suit, and instead filing the suit against the CEO, renders the suit fatal or defective---The appellant company sought to separate itself from its CEO at the appellate stage, claiming the CEO's actions were not representative of the company, despite previously accepting his role as the company's representative---Validity---It is settled law that company is a separate juristic entity from its employees and its employees / directors cannot be held responsible for the contractual obligations incurred by a company (with certain exceptions of personal guarantee, fraud etc. which are irrelevant for the instant purposes), but each case must be viewed on its own merits and circumstances---The summary suit was filed in the name of CEO but a perusal of the title page in the summary suit showed that the appellant company being named as the address for the CEO---The normal format would be to name the company first, being served through its CEO, but in the present case the respondent / plaintiff appeared to have done the opposite---Further perusal of the contents of the plaint revealed that the CEO and the appellant company, in essence, appeared to be one and the same---The CEO also never denied the liability being claimed by the respondent and answered the allegations as if he was the appellant company---The CEO was also instrumental in all proceedings throughout, including signing the agreement between parties, signing cheques, as well as putting up defence on the appellant's side---Perusal of leave to defend filed by CEO on behalf of the appellant company unequivocally showed that he was acting on behalf of the appellant company---Prayer clause of leave to defend also showed that CEO accepted liability on behalf of the appellant company---Such actions of the CEO appeared to have been endorsed by the appellant company as throughout the memo of appeal before the High Court the appellant company referred to the leave to defend application (filed by the CEO) as the appellant company's own---It was an imperative aspect of the matter that given such acknowledgment and endorsement by the appellant company regarding the acts of the CEO i.e. filing leave to defend by CEO on behalf of the company, and owning the same as if the same was filed by the company itself, at a later stage when final order had also been passed, backtracked by attempting to create a juristic person separation between the appellant company and its CEO---Moreover, such plea was only taken by the appellant company in appeal and not before the trial court---Such belated argument being submitted by the appellant company in itself was self-defeating inasmuch as on one hand the appellant company was claiming relief based on the separation from its CEO and on the other hand it was claiming enforcement of the same leave to defend application filed by their CEO---The appellant company attempted to thwart judicial proceedings by raising an issue of 'legal entity vs. company employee' at such a belated stage---The appellant company could not blow both hot and cold i.e. accept the CEO as the appellant's representative when it suited them and then deny his authority when it did not---High Court also made emphasis on S. 28 of the Negotiable Instruments Act, 1881 which provided that anagent acting on behalf of another by signing a cheque could also be held liable---In the pleading of the instant case the CEO acted on behalf of the appellant company and same was never denied by the appellant company---In view of the above the High Court rejected such contention of the appellant company as being without merit---Appeal was dismissed.

Sh. Muhd Irfan v. Sitara Commission Shop and others 2005 SCMR 800 rel.

Habib Bank Ltd. v. T & N Pakistan (Pvt.) Ltd. 2016 CLD 1782 ref.

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

----O.XIV, R.1(6), O.XV, R.1, O.XII, R.12 & O.XXXVII Rr. 1, 2---Qanun-e-Shahadat (10 of 1984), Art. 31---Judgment on admission---Admission in pleadings abolishing the need for further proof---Facts admitted need not be proved---Scope---Piercing the veil of incorporation---The appellant company and its CEO allegedly admitted owing the respondent Rs.57,000,000/- in their pleadings---Leave to defend application was dismissed on admission of liability---The Trial Court passed the impugned order based on the admission, raising the question of whether this admission was sufficient to support the decision---The Trial Court merely on the admission passed the impugned order---Validity---Where there is an admission in a pleading (such as written statement) there is no requirement for further proof---Leave to defend application could be dismissed where liability was admitted by CEO of the company---The appellant company at later stage could not disclaim its CEO from acting on its behalf considering the appellant company had repeatedly accepted / endorsed the CEO as its representative---The appellant company was estopped by its own conduct from claiming a juristic separative between itself and its CEO at such a belated stage---A piercing of the veil of incorporation would no doubt show the CEO and the appellant company to be one and the same i.e. CEO being the only person with whom the respondent had interacted---The signing of the agreement, cheques and all correspondence by the appellant company with the respondent were conducted through its CEO---The appellant company failed to show any illegality with the impugned order which was rendered entirely on admissions made by both the appellant company and its CEO through pleadings made under oath---The new plea of separating the CEO and the appellant company was also only taken at the appellate stage and was never raised earlier during trial proceedings---The CEO by purporting to substitute himself into the appellate proceedings had shown proximity with the appellant company---Appeal was dismissed, in circumstances.

President v. Justice Shaukat Ali PLD 1971 SC 585 rel.

Shaikh Javed Mir for Appellant.

Muhammad Khalid Hayat for Respondent.

2025 C L C 1206

[Sindh (Sukkur Bench)]

Before Zulfiqar Ahmad Khan, J

KHAN BAHADUR LUND ---Applicant

Versus

FEDERATION OF PAKISTAN through Chairman, NADRA, Islamabad and 3 others ---Respondents

Civil Revision Application No. S-77 of 2024, decided on 11th March, 2025.

(a) Specific Relief Act (I of 1877)---

----S.42---Limitation Act (IX of 1908), S. 3 & First Sched. Art. 120---Correction of father's name in Computerized National Identity Card [CNIC] sought---Delay in seeking such correction, effect of---The petitioner filed a suit against National Database and Registering Authority (NADRA) seeking correction of his father's name on his CNIC---The Trial Court decreed the suit in his favour based on supporting documents and a DNA test, however, the appellate court dismissed the suit on the point of limitation---The core issue in the case was the significant delay in filing the suit---Held: The applicant was well aware of the discrepancy in his CNIC as early as 2009 when he first received it---From the court's perspective the law could not bend just because the petitioner now had evidence that may have supported his case---Legal processes were meant to be timely, and the petitioner's failure to address the issue within a reasonable period outweighed the strength of his claim---This delay was critical because, under the law, clear time frames within which a person must file a suit had been provided---If the claim was not raised within the prescribed period, it would be considered as time-barred, meaning thereby that the petitioner would lose the right to have the case heard, regardless of merit of the argument---This factor was significant in the present case where the applicant had reached forty-one years of age---If every case with late filings was allowed to proceed, the judicial system would be overwhelmed, and the principles of fairness and efficiency would break down---Limitation periods are there to prevent exactly that to make sure that people do not sit on their rights for too long---The revision petition was dismissed, in circumstances.

(b) Administration of justice---

----Justice is not just about the facts of a case, but about ensuring that disputes are settled in a timely and orderly manner.

Jaleel Ahmed Memon for Applicant.

Safdar Kamal for Respondents-NADRA.

Ahmed Ali Shahani, Assistant Advocate General, Sindh.

2025 C L C 1224

[Sindh]

Before Sana Akram Minhas, J

ICI PAKISTAN LTD. Through authorized representative ---Plaintiff

Versus

AL ABID SILK MILLS LTD. through Chief Executive Officer ---Defendant

Suit No. 2442 of 2015, decided on 17th February, 2025.

Qanun-e-Shahadat (10 of 1984)---

----Arts. 74 & 76---Civil Procedure Code (V of 1908), S. 151 & O.XIII, R. 2---Suit for recovery of money---Secondary evidence---Loss of original documents---Due diligence---Proof---Plaintiff/applicant sought permission to produce secondary evidence with regard to documents in question which were claimed to be lost---Validity---Plaintiff/applicant could not claim benefit of Art. 76(c) of Qanun-e-Shahadat, 1984---Loss of original documents was not due to uncontrollable or unforeseeable event but rather resulted from plaintiff's/applicant's own internal mismanagement---Allowing secondary evidence under such conditions would undermine the principle that parties must exercise proper care in preserving documentary evidence, particularly when such documents form basis of a legal claim---Request of plaintiff/applicant to rely on secondary evidence under Art. 76(c) of Qanun-e-Shahadat, 1984 was legally unsustainable and could not be entertained---Protection of Art. 76(c) of Qanun-e-Shahadat, 1984 is not granted mechanically or routinely; it is contingent upon the party demonstrating that loss of documents occurred despite exercising reasonable care and was not due to its own negligence---Plaintiff's casual assertion of loss, without any accompanying evidence of efforts to prevent or mitigate such loss, indicated lack of due diligence---Such plea was only raised when Evidence Commissioner refused to exhibit photocopies of documents concerned---High Court declined producing of secondary evidence of documents in question as plaintiff/applicant was treating invocation of Art. 76(c) of Qanun-e-Shahadat 1984, as an afterthought rather than a legitimate legal entitlement---Application was dismissed, in circumstances.

Akhtar Sultana v. Muzaffar Khan Malik PLD 2021 SC 715; Khurshid Begum v. Chiragh Muhammad 1995 SCMR 1237; Gujranwala Development Authority v. Muhammad Hussain 2001 YLR 1884; Amirzada Khan v. Ahmad Noor PLD 2003 SC 410 and Noor Jehan v. Saleem Shahadat 2022 SCMR 918 ref.

Iftikhar Ahmad v. Muhammad Younus Khan 1982 CLC 2114; Ghulam Ali v. Muhammad Hussain Kathawala PLD 1985 Kar. 152; Javed Rafat Khan v. Shabbir Tiles PLD 2005 Kar. 1 and Uzma Aziz v. Maryam PLD 2006 Kar. 58 rel.

Faiz Durrani for Plaintiff.

Abdallah Azzaam Naqvi for Defendant.

2025 C L C 1237

[Sindh]

Before Muhammad Junaid Ghaffar and Mohammad Abdur Rahman, JJ

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY through authorized agent ---Petitioner

Versus

PROVINCE OF SINDH through Secretary and 4 others ---Respondents

Constitution Petition No. D-4022 of 2024, decided on 19th December, 2024.

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

----O. XXIII, R. 3 & O. XII, R. 6---Consent decree---Scope---Compromise between the private parties excluding the petitioner/Pakistan Defence Officers Housing Authority---Passing of consent decree---Claim of the petitioner-Housing Authority was that it was not bound to execute such decree as specific objection as to ownership of one of the private parties/seller of the property in dispute had been raised in its written statement---Validity---Regulator or an authority like the petitioner could not be mandatorily compelled to accept and implement the compromise entered between the private parties to which the regulator/authority or any other third party was not a signatory---Consent decree is a kind of agreement/contract between the two parties with a superadded command of the court, but it would not bind a third party, who was not a party to the suit or the compromise---When a compromise decree is being passed based on consent of the parties, while doing so, the court shall either dismiss the suit against the party, who was not a signatory to it; or in the alternative, the suit must remain alive and continue against the said defendants---Suit cannot be, in any circumstances, decreed against a defendant, who has not signed the compromise application nor has consented to it---If the defendant had stated something in its written statement which to the plaintiff appeared to be a concession, then the only recourse available was under O.XII, R. 6, C.P.C., by way of a decree on admission---In the present matter, this was not the case, thus, courts below, including the Executing Court, had failed to appreciate the law---Constitutional petition was allowed, in circumstance.

Abdul Hafeez through Attorney and another v. Pakistan Defence Officer Housing Authority through Secretary and another PTD 2015 Sindh 336 rel.

(b) Constitution of Pakistan---

----Art. 201---Decision of High Court binding on subordinate Courts---Scope---Courts below are required to be well versed with law, including a binding precedent of High Court in terms of Article 201 of the Constitution, and if they remain vigilant and careful, then a lot of fresh cases can be curtailed before High Court enabling it to decide statutory appeals.

Shahzeb Akhtar for Petitioner.

Abdul Jalil Zubedi for Respondent No. 1.

S. Faraz Akbar Shah for Respondent No. 5.

2025 C L C 1260

[Sindh]

Before Muhammad Shafi Siddiqui, CJ and Jawad Akbar Sarwana, J

Messrs NATIONAL TELECOMMUNICATION CORPORATION ---Appellant

Versus

Messrs ZAHRA COMMUNICATIONS ---Respondent

High Court Appeal No. 465 of 2024, decided on 16th December, 2024.

Arbitration Act (X of 1940)---

----Ss. 17 & 30---Arbitral award----Interference by High Court in appellate jurisdiction---Scope---Different claim of damages---Determining criteria---Arbitration proceedings---Announcement of award---Single Judge made the award rule of the court---Objections were raised by the appellant qua award of general damages---Validity---Arbitrator had set out the grounds for rejection and denial of claims and rejected eight (8) out of thirteen (13) claims filed by the respondent based on the evidence brought on record---Where an arbitrator awards general damages, the absence of documentary evidence for the assessment of such damages does not automatically warrant setting aside the award---General damages are distinct from special damages, which require proof of actual losses---Courts may invoke the "rule of thumb" to award general damages where legal rights have been violated, and there is no precise yardstick for assessment, provided the determination satisfies the conscience of the court based on the facts and circumstances of the case---Division Bench of High Court had not found any "legal misconduct" or "moral misconduct" on part of the Arbitrator---Appellant (NTC) had not made out a case to identify precisely where the arbitrator had travelled beyond his jurisdiction---Division Bench of High Court could have considered setting aside the award if there was any error, factual or legal, which floated on the surface of the award, but appellant had failed to make such demonstration before it---No irregularity or perversity was found in the judgment passed by the Single Judge, making the arbitral award a rule of the court---High Court Appeal was dismissed, in circumstances.

Abdul Majeed Khan v. Tawseen Abdul Haleem 2012 CLD 6; Sufi Muhammad Ishaque v. The Metropolitan Corporation, Lahore PLD 1996 SC 737; Injum Aqeel v. Latif Muhammad Chaudhry and others 2023 SCMR 1361 and Gerry's International (Pvt.) Ltd. v. Aeroflot Russian International Airlines 2018 SCMR 662 rel.

Gazain Z. Magsi for Appellant.

Nemo for Respondent.

2025 C L C 1369

[Sindh (Mirpurkhas Bench)]

Before Dr. Syed Fiaz ul Hassan Shah, J

SAEED AHMED ---Applicant

Versus

SHABBIR AHMED and 4 others ---Respondents

Civil Revision Applications Nos. S-264 and S-268 of 2024, decided on 25th March, 2025.

(a) Qanun-e-Shahadat (10 of 1984)---

----Arts. 17, 79, 81, 82, 91 & 92---Registered gift deed, challenge to---Proof---Essential ingredients of a valid gift---Requirement of producing two attesting witnesses in evidence---Principle---Exceptions---Scope---Where execution is admitted by executor or where an attesting witness is reluctant to cooperate with the beneficiary---Not producing two attesting witnesses said to be not fatal---Predecessor-in-interest of the parties passed away in 2007---In 2012, one of the legal heirs claimed that their father had gifted him the suit property through a registered gift deed made in 2004---Authenticity of the gift was doubted by other legal heirs and it was alleged that the gift deed was fabricated without the knowledge of the deceased father or other heirs---The core question for consideration before the High Court was as to "whether a registered document produced by official witness required test to proof its execution by way of Art. 79 of Qanun-e-Shahadat, 1984 and what would be the effect of essential ingredients of gift when respondents were in part possession of suit property"---Held: Petitioner (beneficiary) failed to produce any documentary evidence and call marginal witnesses, therefore, he failed to undergo the test of Art. 79 of the Qanun-e-Shahadat, 1984---Where the execution of the document is denied or disputed, it is the mandatory requirement of law of evidence i.e. Qanun-e-Shahadat, 1984 to prove the execution of such document by way of confirmation of document through at least two witnesses who have put their signatures on the document as per the qualification of Art. 17 of Qanun- e-Shahadat, 1984---No evidence came on record about the issue of possession of the respondent (brother or sister) at the time of execution of gift by father which was essential ingredient of a gift under Muslim personal laws after the other pre- requisites i.e. offer and acceptance---After setting aside the impugned judgment and decree of the appellate court the matter was remanded to the Trial Court to give fresh decision on the point of determination about the "possession" of the petitioner at the time of execution of gift deed.

Muhammad Islam v. Bagh Ali through Legal heirs RSA No. 230 of 2016 ref.

(b) Qanun-e-Shahadat (10 of 1984)---

----Arts. 79, 91 & 92---Dispute as to execution of a document---Proof---Requirement of producing two attesting witnesses---Principle---Departure from the principle---Scope---Where sale deed is a registered document and purchaser is in possession of disputed land on the basis thereof then non-examination of its attesting witnesses would not be fatal---Registered document has sanctity attached to it and stronger evidence is required to cast a aspersion on its genuineness.

Mirza Muhammad Sharif's case 1993 SCMR 462; Manzoor Ahmed and others v. Mehrban and others 2002 SCMR 1391 and Rasool Bukhsh and others v. Muhammad Ramzan 2007 SCMR 85 rel.

(c) Qanun-e-Shahadat (10 of 1984)---

----Arts. 17, 79, 81, 82, 91 & 92---Registered gift deed, challenge to---Proof---Requirement of producing two attesting witnesses in evidence---Principle---Exceptions---Scope---Where execution is admitted or where an attesting witness is reluctant to cooperate with the beneficiary---Not producing two attesting witnesses said to be not fatal---Qanun-e-Shahadat, 1984 provides certain departures from the condition imposed by Art. 79 of the same---Firstly, the exception to the general rule is that where the execution is being admitted by the executor before the court in his pleadings or during evidence---Such exception is covered by Art. 81 of the Qanun-e-Shahadat, 1984---Further exceptions are also provided under Arts. 91 to 101 of the Qanun-e-Shahadat, 1984---If the attesting witnesses collude with opposite party or due to some greed or avarice refuse to cooperate with the beneficiary of document, the law gives alternative way to the beneficiary of document to prove his document under Art. 82 of Qanun-e-Shahadat, 1984 which provides that "if the attesting witness denies or does not, recollect the execution of the document, its execution may be proved by other evidence"---Therefore, a party is not required to prove document in the ordinary mode of proof and a departure from Art. 79 of ibid Order is permissible---A plenary reading of Art. 81 confirms that where the execution of a document is admitted by the executant himself, the examination of attesting witness is not necessary and a party is not under burden of proof to comply with the requirement to produce or call at least two attesting witnesses of document---Although the document is required to be attested by two witnesses but where the executant admits the execution of the document, then in terms of Art. 81 of ibid Order such document can be used against executor of document though it was required by law to be attested---The non-examination of at least two marginal witnesses would not be fatal to the case of a party due to admission by the executor of document.

Abbas Ali v. Liaqat Ali and another 2013 SCMR 1600 rel.

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

----S. 115---Revisional jurisdiction of the High Court---Interference in concurrent findings---Exceptions---Such jurisdiction of the High Court is limited in relation to concurrent findings of the competent courts---The exceptions to this rule are when the findings are based on insufficient evidence; misreading of evidence; non-consideration of material evidence; patent errors of law; consideration of inadmissible evidence; abuse of jurisdiction; when the conclusions drawn are perverse and based on conjectural presumptions---The erroneous decisions of fact are ordinarily not revisable and the mere fact that the High Court may differ on a question of fact or mixed question of law and fact is not a valid ground for interfering with concurrent findings.

Ameer Afzal and another v. S. Akmal through Legal heirs 2024 SCMR 1649 rel.

Muhammad Asif Zai for Applicant.

M. Noordin Bhatti and Ayaz Ali Rajpar, Additional Advocate General, Sindh for Respondents.

2025 C L C 1394

[Sindh (Hyderabad Bench)]

Before Abdul Hamid Bhurgri, J

WAQAR ALI RAHUJO and another ---Appellants

Versus

DILEEP KUMAR and others ---Respondents

2nd Civil Appeal No. S-35 of 2024, decided on 7th April, 2025.

(a) Specific Relief Act (I of 1877)---

----Ss. 12 & 39---Civil Procedure Code (V of 1908), O.VII, R.11---Limitation Act (IX of 1908), S. 3 & First Sched. Art. 113---Suit for specific performance of agreement to sell---Limitation---Res judicata, applicability of---Rejection of plaint---Concept of res judicata with respect to the principle of rejection of plaint, interpretation of---Deciding the point of res judicata in application under O.VII, R. 7 C.P.C.---Scope---Plaint cannot be rejected summarily by applying principle of res judicata---Specific issue should be framed and evidence has to be led and suit should be decided on merits thereon---The appellants/plaintiffs (vendees) filed a suit seeking specific performance of a contract, cancellation of a sale deed, and permanent injunction claiming that their late father (original vendee) had entered into an agreement to purchase the land in 2010, followed by a fresh agreement with legal heirs---Despite part payment through cheques, the vendors (Respondents Nos. 1-7) allegedly sold the land to a third person (respondent No. 8) through a registered sale deed---The trial and appellate courts rejected the plaint on the grounds of res judicata and limitation, leading to the filing of the present petition---The main points for consideration in the present appeal were that (i) "Whether the suit was barred by res judicata; (ii) Whether the suit was barred by Art. 113 of Limitation Act, 1908"---Held: It stood admitted that the original vendee (father of appellants/plaintiffs) had previously instituted suit against the vendor seeking enforcement of the prior sale agreement---That suit was dismissed on merits, with specific findings that the agreement could not be proved and that vendee's possession was unlawful---Notwithstanding the reliance on the fresh agreement executed with legal heirs of the original vendor, the appellants (vendees) simultaneously grounded their claim on possession allegedly derived from the earlier transaction between their predecessor-in-interests---Application under O. VII R. 11(d) C.P.C. were to be decided as per the following principles: (i) To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to; (ii) The defence made by the defendant in the suit must not be considered while deciding the merits of the application;(iii) To determine whether a suit is barred by res judicata, it was necessary that (a) the 'previous suit' was decided, (b) the issues in the subsequent suit were directly and substantially in issue in the former suit; (c) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (d) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and (e) since an adjudication of the plea of res judicata required consideration of the pleadings, issues and decision in the 'previous suit', such a plea would be beyond the scope of O. VII R. 11(d), where only the statements in the plaint would have to be perused---Therefore, the issue of res judicata could not have been decided on an application under R. 11 of O. VII of C.P.C.---The reason was that the adjudication on the issue involved consideration of the pleadings in the earlier suit, the judgment of the Trial Court and the judgment of the appellate court---The suit should be decided on merits and the issue of res judicata should remain open and a separate issue on res judicata should be framed along with the other issues---Both the courts below erred in law and wrongly rejected the plaint on the point of res judicata as both went beyond the scope of O. VII, R. 11(d) C.P.C.---However, High Court left the point of res judicata open for the Trial Court to frame the issue upon and decide the same on the basis of pleadings and evidence of the parties---As far as the point of limitation for filing the suit was concerned, the examination of the agreement revealed that no fixed date was prescribed for the performance of the agreement, however, the determination of whether time was of the essence to the contract was a matter that could only be adjudicated once respondents Nos.1 to 7 (vendors) filed their respective written statements, as they were privy to the agreement---The findings of both courts below, which summarily concluded that the suit was barred by limitation and consequently rejected the plaint, appeared to be fanciful and disconnected from the record---The issue of limitation prima facie appeared to be mixed question of law and fact, which required evidentiary adjudication and necessitated a combination of scrutiny of questions of law and fact, which could not be decided hypothetically, cursorily, or without appreciating the starting point of limitation in case before non-suiting any person on the ground of limitation---Courts below erred in law by holding that suit was time barred---Impugned judgments of both the courts below were set aside and the matter was remanded to the Trial Court with directions to restore the suit to its original status by affording respondents Nos. 1 to 7 (vendors) an opportunity to file their written statements within stipulated period as provided under the law, however, High Court left open the points of res judicata and limitation for the Trial Court to decide the same after framing of the issues from the pleadings of the parties---Second appeal was allowed, in circumstances.

Keshav Sood v. Kirti Pardeep Sood and others Civil Appeal No. 5841 of 2023; Muhammad Rashid and others v. The Province of Sindh through Chief Secretary 2024 SCMR 1864; Tariq Mahmood Chaudhry, Kamboh v. Najam-un-Din 1999 SCMR 2396 and Abdul Murad Khan v. Mst. Noshaba and 9 others 1992 SCMR 1828 rel.

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

----S. 11 & O.VII, R. 11---Res judicata---Principle and concept---Applicability---The concept of res judicata has evolved from English common law and since then it has been defined and interpreted through various judicial pronouncements ---The concept of res judicata is explained under S. 11 of the Code of Civil Procedure 1908---As per S. 11 of C.P.C. no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.

(c) Specific Relief Act (I of 1877)---

----S. 12---Limitation Act (IX of 1908), First Sched., Art. 113---Suit for specific performance of agreement to sell---Limitation, computation of ---Whether time is of the essence of contract---Principle---Where a specific date for performance of the agreement is stipulated, the limitation period shall commence from such date, conversely, if no date is fixed, it shall begin when the plaintiff becomes aware that performance has been refused.

(d) Limitation Act (IX of 1908)---

----S. 3---Duty of courts to apply the law of limitation---The court can dismiss any suit, appeal or application filed after the prescribed period of limitation even if opposite party did not raise point of limitation as defence.

Imdad Ali Unar for Appellants.

Muhammad Sulleman Unar for Respondents Nos. 1 to 7.

Muhammad Hashim Leghari for Respondent No. 8.

Allah Bachayo Soomro, Additional Advocate General for Respondents Nos. 9 to 11.

2025 C L C 1418

[Sindh (Sukkur Bench)]

Before Abdul Hamid Bhurgri, J

Mst. SHAMSHAD BEGUM through Attorney ---Petitioner

Versus

SHAHID ALI and 3 others ---Respondents

C. P. No. S-240 of 2024, decided on 21st April, 2025.

(a) Sindh Rented Premises Ordinance (XVII of 1979)---

----Ss. 5 & 20---Civil Procedure Code (V of 1908), S. 12(2)---Eviction petition---Oral tenancy, proof of---Relationship of landlord and tenant, denial of---Proof---Jurisdiction of the Rent Controller---Scope---Respondent No.1 (alleged to be a tenant) claimed that he never remained in possession of the suit property---Copy of rent agreement was not produced by the petitioner (claiming to be a landlady)---The petitioner claimed that her father (purportedly the landlord) had rented out the suit property to the father of respondent No.1 (purportedly the tenant) through an oral agreement in 1988---After predecessor-in-interest of both parties passed away, the respondent allegedly continued as tenant but defaulted on rent, and subsequently, an ex-parte eviction order was passed against him---The respondent challenged the order under S. 12(2), C.P.C., denying any landlord-tenant relationship claiming that he never remained in possession of the property---Respondent's application under S. 12(2), C.P.C. was dismissed against which he filed civil revision which was allowed, constraining the petitioner (daughter of the purported landlord) to file the present Constitutional petition---The central issue for adjudication was "whether a relationship of landlord and tenant had been established on record in the proceedings culminating in the eviction order passed by the rent controller"?---Held: In the absence of written agreement the burden fell on the party asserting the relationship to prove the same by adducing compelling and unimpeachable evidence from which the court could infer such relationship on the principle of the preponderance of probabilities---Establishment of relationship in absence of written agreement must be supported by a high threshold of evidence---In the present matter, prima facie, the petitioner (successor-in-interest of purported landlord) had not discharged that burden---No rent agreement, receipt, or any other document were produced in order to establish a landlord-tenant relationship---There can be verbal/oral tenancy also but in order to establish such tenancy an evidence of very high standard is required, from which the facts of tenancy is established on the principle of preponderance of probabilities---The Rent Controller had allowed the application only on the ground that no rebuttal had been offered in response to the tenancy claim---However, respondent No. 1 (purported tenant) in the application under S. 12(2), C.P.C. had denied the existence of relationship of landlord-tenant between the parties and called into question the maintainability of the entire proceedings---Since there was serious dispute regarding relationship between the parties and the petitioner had not produced any documentary evidence in order to prove the relationship of landlord and tenant between the parties, it was imperative for the Rent Controller to decide the application under S. 12(2), C.P.C. as per directions given in the impugned order and then proceed further---No irregularity or infirmity in the impugned order was pointed out---Rent Controller was directed to decide application under S. 12(2), C.P.C. expeditiously---Constitutional petition being devoid of merits was dismissed, in circumstance.

Hafeezuddin and 2 others v. Badaruddin and 2 others PLD 2003 Karachi 444 ref.

(b) Sindh Rented Premises Ordinance (XVII of 1979)---

----Ss. 5 & 20---Civil Procedure Code (V of 1908), S. 12(2)---Application under S. 12(2) C.P.C.---Maintainability---Powers available to the Rent Controller---Objection regarding maintainability of application under S. 12(2) C.P.C. in light of S. 20 of Sindh Rented Premises Ordinance, 1979---Validity---Bar under S. 20 of the Sindh Rented Premises Ordinance, 1979 is not absolute and the Rent Controller in an appropriate case may invoke the provisions of the C.P.C.---Moreover, equitable principle of C.P.C. can be invoked by the Rent Controller.

Mst. Fehmida Begum v. Muhammad Khalid and another 1992 SCMR 1908 and Ismail v. Subedar Gul Inayat Shah PLD 1991 SC 997 rel.

(c) Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 20---Civil Procedure Code (V of 1908), S. 12(2)---Question of jurisdiction to be addressed at the outset---Principle---Relationship of landlord and tenant, denial of---Where the jurisdiction of the Rent Controller is questioned on the point that no relationship of landlord and tenant exists, the question of jurisdiction has to be addressed first before proceeding to the merits of the case.

Mst. Fehmida Begum v. Muhammad Khalid and another 1992 SCMR 1908 and Ismail v. Subedar Gul Inayat Shah PLD 1991 SC 997 rel.

Attorney Yameen Ali Khoso in person for Petitioner.

Abdul Mujeeb Shaikh for Respondent No. 1.

Shaharyar Awan, Assistant Advocate General, Sindh for Respondents Nos. 2 to 4.

2025 C L C 1472

[Sindh]

Before Yousuf Ali Sayeed and Arbab Ali Hakro, JJ

NAJEEBUL HAQ and others ---Appellants

Versus

Messrs WORKS COOPERATIVE HOUSING SOCIETY, LTD through Administrator

and others ---Respondents

High Court Appeal No. 33 of 2005, decided on 18th December, 2024.

(a) Limitation Act (IX of 1908)---

----First Sched., Arts. 91, 120 & 142---Civil Procedure Code (V of 1908), O. I, Rr. 3 & 9---Specific Relief Act (I of 1877), Ss. 42 & 55---Suit for declaration, possession and mandatory injunction---Unauthorized possession and creation of trust over amenity plot of respondent-society---Objections as to maintainability of suit on the points of limitation and misjoinder and non-joinder of necessary parties were raised by the appellants ---Validity---Primary or substantial reliefs sought by the appellants were the declaration of ownership and recovery of possession, while the cancellation of the trust deed was merely incidental or ancillary to the substantial reliefs, thus, Art. 142 of the Limitation Act, 1908 (Act), was disregarded while computing the time as per Art. 120 of the Act, which provided a period of six years from the date of unauthorized possession of the subject property and gaining knowledge of the alleged trust deed, which was mentioned in the plaint as 06.02.1993 and as the suit was instituted on 29.10.1998, thus, the same was well within limitation---Secretary General and key office bearers of the trust were parties to the suit, which implied that the trust was indeed a participant in the proceedings and it fulfilled the judicial objective of ensuring that all necessary parties were before the court for effective and proper adjudication of the controversy---Objections as to limitation and misjoinder and non-joinder of parties were repelled and High Court Appeal was dismissed, in circumstances.

Mst. Hameeda Bibi and 3 others v. Ch. Atta Ullah PLD 1998 Lahore 183 rel.

(b) Trusts Act (II of 1882)---

----S. 3---Unauthorized creation of trust and execution of trust deed without the consent and knowledge of owner---Validity---S. 3 of the Trusts Act, 1882, delineates a trust as an obligation annexed to property ownership, originating from a confidence reposed in and accepted by the owner for the benefit of another party---Respondent/society being owner of the property never consented to create the trust, which directly contradicted the fundamental premise of trust law, namely, the requisite consent and confidence between parties---Society, in its capacity as the original owner (or author of the trust), had no intention of establishing such an obligation, and the absence of its consent nullified the legitimacy of the trust deed.

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

----O. XV, R. 3---Suit for declaration, possession and mandatory injunction was decreed on the basis of legal issues---Plea of not framing of factual issues and not recording of evidence---Validity---During the pendency of suit appellants did not raise any objection nor expressed any desire to adduce evidence, rather, they argued the matter on legal issues---Although adducing evidence is a right of a party, yet the court cannot compel or drag a party to produce evidence---Wisdom behind enacting the provision of O.XV, R. 3, C.P.C., is to ensure early disposal of cases based on documentary evidence, thereby saving the court's precious time and avoiding unwarranted litigation---All the issues framed by the Trial Court were legal, which delved into the root of the subject matter and did not involve questions of fact, thus, objection of appellants qua non-framing of factual issues and non-recording of evidence was without any merit and the Court acted within the purview of O.XV R. 3, C.P.C., ensuring judicial efficiency and fairness---High Court Appeal was dismissed, in circumstances.

Muhammad Younus and 2 others v. Government of Pakistan through Chief Secretary N.As Gilgit and 4 others 2010 GBLR 107 rel.

Muhammad Saleem Mangrio for Appellants.

Faisal Siddiqui for Respondents.

2025 C L C 1510

[Sindh]

Before Muhammad Jaffer Raza, J

MEEZAN BANK LIMITED ---Petitioner

Versus

EDULJEE DINSHAW (PVT.) LIMITED and 2 others ---Respondents

Constitution Petitions Nos. 194 to 196 of 2025, decided on 30th April, 2025.

Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 15(2)(ii), proviso---Ejectment of tenant---Default in payment of rent---Subsequent payment---Effect---Petitioner / tenant claimed that subsequently it paid the rent due, therefore, there was no default under proviso to S. 15(2)(ii) of Sindh Rented Premises Ordinance, 1979---Validity---Provision of proviso to S. 15(2)(ii) of Sindh Rented Premises Ordinance, 1979 was available, where sole ground in rent application against tenant was default and the tenant on the first day of hearing had admitted his liability to pay---Rent Controller was to satisfy that tenant had not made such default on any previous occasion and the default was not exceeding six months---Only if such conditions were met, the Rent Controller was mandated to direct tenant to pay all rent claimed on a date to be fixed by Rent Controller, thereafter he was mandated to dismiss the rent application---High Court declined to interfere in eviction orders passed by two Courts below, as subsequent tender of rent by petitioner / tenant did not extinguish the default---Constitutional petition was dismissed, in circumstances.

Allies Book Corporation v. Sultan Ahmad and others 2006 SCMR 152; Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45; Aamir Aslam Shaikh and others v. Court of Ivth Rent Controller Karachi (South) and others C.P. No. S-518 of 2013; Haji Abdul Ghani v. VIIth Additional District Judge, South Karachi and 2 others 2008 CLC 1598; Shakila Appa (Late) v. Nadeem Ghani and others 2022 CLC 1146; Mrs. Alima Ahmad v. Amir Ali PLD 1984 SC 32; Syed Waris Ali Tirmizi v. Liaquat Begum 1980 SCMR 601 and Messrs Pragma Leather Industries v. Mrs. Sadia Sajjad PLD 1996 SC 724 ref.

Ali T. Ebrahim for Petitioner.

Shan ur Rehman for Respondents.

2025 C L C 1552

[Sindh]

Before Muhammad Iqbal Kalhoro and Muhammad Osman Ali Hadi, JJ

MUHAMMAD ANIS ---Appellant

Versus

Messrs PAK GULF LEASING COMPANY LIMITED and 2 others ---Respondents

Ist Appeal No. 103 of 2018, decided on 26th February, 2025.

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

----S. 151 & O. XLI, R. 33---Financial Institutions (Recovery of Finances ) Ordinance ( XLVI of 2001 ), Ss. 7(4) & 9---Specific Relief Act (I of 1897), Ss. 42 & 54---Suit for declaration, cancellation, damages and permanent injunction---Right of party---Remedy not granted by the Court---Act(s) of the Subordinate Court(s) not granting relief / right to party---Inherent/ex delicto justitiae powers of High/Appellate Court---Scope---Owner of residential property, through original papers, furnished surety in a criminal case on behalf of two accused persons pursuant to their bail order, however, later he did not receive any final outcome on his application for release of surety, i.e. return of his original property papers---Then, owner received a notice from a non-banking finance leasing company ('Leasing Company') stating that the property was mortgaged to them and they intended to auction the same---Then the owner filed a civil suit for a declaration, etc., before the High Court in its Original Civil Jurisdiction, inter alia, seeking to restraint Leasing Company from auction / sale of the property but the Single Judge returned the plaint, with an observation to approach the court of proper jurisdiction---Then the owner approached the Banking Court and filed suit seeking redressal of his grievance, however, when the matter proceeded to the final arguments the Judge-Banking Court, while holding that the Banking Court did not have jurisdiction to adjudicate the matter, returned the plaint with the direction to file the same before the (civil) court of competent jurisdiction---Owner/Appellant approached Appellate / High Court---Validity---Banking Court, undoubtedly, has authority to decide its own jurisdiction as provided in S. 7(4) of the Financial Institutions (Recovery of Finances ) Ordinance, 2001 ('the Ordinance 2001') being a special law; the jurisdiction of which (Banking Court) is only invoked when there is dispute between a financial institution and a customer, as defined under the Ordinance 2001---In the present case, it is an accepted position that the appellant does not fall into either category, which forms the basis of the impugned judgment and return of the plaint---Both the Courts (Civil and Banking), at separate times, have returned the plaint to the appellant, in essence leaving the appellant non-suited; which is contrary to the provisions of law and natural justice, i.e. ubi jus ibi remedium, meaning where there is a right, there is a remedy---Similarly, "actus curiae neminem gravabit" means an act of court should prejudice no man, both the said principles would be called into effect to the aid of the appellant to support him in present matter---Mere technicalities cannot forgo justice, nor can technicalities be allowed to operate as tyrant masters so as to frustrate genuine claims as it remains incumbent upon a court to remedy any wrong suffered by a litigant---Additionally, the High /Appellate Court holds inherent jurisdiction and power, the Court remains duty-bound to ensure that complete justice is done and technicalities are avoided---Such power has been granted vide statute, i.e. under S. 151 as well as O. XLI, R. 33, Code of Civil Procedure, 1908---Additionally, the Appellate Court can also act ex delicto justiciae and supply for an omission in any procedure---The Appellate Court exercises powers to make such orders to cover ostensibly impossible situations for complete dispensation of justice---The appellant has been in pursuit of his property, which has eluded him for nearly 20 years, and the matter to-date remains in limbo---The Appellant is no better off today than he was 20 years ago, despite pursuing his matter before the courts of law---It would by any standard be unjust, if the appellant was not aided to conclude his claim---Thus, to serve a more reasonable and justiciable purpose, High / Appellate Court, while invoking inherent powers, transferred the suit filed by Appellant from the Banking Court to the relevant Civil Court holding pecuniary and territorial jurisdiction over the Property; the matter would commence at the stage of Final Arguments on the basis of evidence already adduced by both the parties---Appeal was disposed of accordingly.

2016 CLD 461; 2003 CLD 1026; 2003 CLD 1843; 2007 CLD 1532; 2004 CLD 689; 2023 SCMR 1451; 2024 CLD 1099; Dr. Asma Noreen Syed v. Government of the Punjab and others 2022 SCMR 1546; Abid Jan v. Ministry of Defence and others 2023 SCMR 1451; Particular reference can be made under Articles 4, 8, 10-A, 23, 24 and 25; Abdul Qudoos v. Commandant Frontier Constabulary KPK, Peshawar and another 2023 SCMR 1334; Messrs Grain System v. Agricultural Development Bank 1993 SCMR 1996, 2004 SCMR 108; 2010 CLD 981; 2009 CLD 172 and 2022 SCMR 870 ref.

(b) Constitution of Pakistan---

----Arts. 4, 8, 10-A, 23, 24 & 25---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 9---Specific Relief Act (I of 1897), Ss. 42 & 54---Suit for a declaration, etc. cancellation, damages and permanent injunction---Right of party---Remedy not granted by the Court---Act(s) of the Subordinate Court(s) not granting relief / right to party---Fundamental rights of litigant---Scope---Owner provided his residential property, through original papers, as a surety in a criminal case on behalf of two accused persons pursuant to their bail order, however, later he did not receive any final outcome on his application for release of surety, i.e. return of his original property papers---Then, owner received a notice from a non-banking finance leasing company ('Leasing Company') stating that the Property was mortgaged to them, and they intended to auction the same---Then the owner filed a Civil Suit for a declaration, etc. before the High Court in its Original Civil Jurisdiction, inter alia, seeking to restraint Leasing Company from auction / sale of the Property but the Single Judge returned the Plaint, with an observation to approach the court of proper jurisdiction---Then the owner approached the Banking Court and filed Suit seeking redressal of his grievance, however , when the matter proceeded to the final arguments the Judge-Banking Court, while holding that it (Banking Court) did not have jurisdiction to adjudicate the matter, returned the Plaint with the direction to file the same before the (civil) court of competent jurisdiction---Owner / Appellant approached Appellate / High Court---Validity---It is abundantly clear that distress has been caused to the Appellant, due to the various courts below sending him from pillar to post in an attempt to safeguard his own Property---Said actions also appear violative to Appellants' rights having been guaranteed under Arts. 4, 8, 10-A, 23, 24 and 25 of the Constitution of Pakistan---Appellant has now been left in a situation whereby his Property appears to be lost in an abyss, not through any fault of his own, but due to actions of the courts below in returning his plaint---Mere technicalities cannot forgo justice, nor can technicalities be allowed to operate as tyrant masters so as to frustrate genuine claims---Thus, to serve a more reasonable and justiciable purpose High/Appellate Court, while invoking inherent powers, the Suit filed by Appellant from the Banking Court to the relevant Civil Court holding pecuniary and territorial jurisdiction over the Property; the matter would commence at the stage of Final Arguments on the basis of evidence already adduced by both the parties---Appeal was disposed of accordingly.

Particular reference can be made under Articles 4, 8, 10-A, 23, 24 and 25 ref.

Abdul Shakoor and Fahad Ali for Appellant.

Nemo for Respondents.

2025 C L C 1607

[Sindh]

Before Muhammad Karim Khan Agha and Adnan-ul-Karim Memon, JJ

NIZAR ALI FAZWANI through Special Attorney ---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary of Interior, Islamabad and 2 others ---Respondents

Constitutional Petition No. D-1231 of 2024, decided on 26th March, 2025.

(a) Exit from Pakistan (Control) Ordinance (XLVI of 1981)---

----S. 2---Passports Act (XX of 1974), Ss. 3 & 8---Passports Rules, 2021, R. 23---Removal of name sought from Exit Control List (ECL) on medical grounds---Right to travel---Fundamental rights, protection of---Mere criminal involvement does not justify ECL placement---Petitioner aged 85-yearswas suffering from serious health conditions and sought removal of his name from the Exit Control List (ECL) to travel abroad for urgent medical treatment---His name had been placed on the ECL in connection with a NAB Reference relating to alleged financial misappropriation in a housing society---The petitioner argued that his continued placement on the ECL was arbitrary, lacked legal basis and violated his fundamental rights under Arts. 4, 9 & 15 of the Constitution---The case was later transferred to Anti-Corruption Establishment and NAB no longer held jurisdiction---Question for determination before the High Court was as to "Whether the placement of the petitioner's name on the Exit Control List (ECL) by the Ministry of Interior, based solely on NAB's request and without independent justification or adherence to legal procedure, violated the petitioner's fundamental rights?"---Held: The superior courts of the country have consistently ruled against belated ECL placements, especially when individuals had previously travelled freely---The case reported as 2017 SCMR 1179 clarified that mere registration of a criminal case was insufficient for ECL placement and reaffirmed that restrictions must align with the Exit from Pakistan (Control) Rules, 2010---Further the Supreme Court emphasized that executive discretion was not absolute and upheld High Court decisions striking down unlawful restrictions---Consequently this being settled law, mere criminal involvement did not justify ECL placement---Citizens had a fundamental right to liberty under Art. 9, which, combined with Arts. 4 & 15, included the right to travel, unless restricted by a law enacted in the public interest---Moreover, mere registration of a crime did not constitute a "public interest" justification for restricting a person's liberty---Therefore, the respondent's actions in placing the petitioner's name on the ECL based on the criminal case were inconsistent with established legal principles---Ministry of Interior's decision to place the petitioner's name on the ECL was deemed arbitrary and automatic---This action was solely driven by instructions from the National Accountability Bureau (NAB), without independent assessment or a reasoned order from the Ministry---Consequently, the Ministry failed to demonstrate a legitimate basis for exercising its authority under S. 2(3) of the Exit from Pakistan (Control) Ordinance, 1981---This lack of due process resulted in a violation of the petitioner's fundamental rights, specifically Arts. 4, 9, and 15 of the Constitution---Furthermore, it unjustly prevented the petitioner from seeking medical treatment---Therefore, because of respondents' actions placing the petitioner on the ECL, barring his international travel, and removing him from the flight, contempt notice was served upon the delinquent officials, as their actions were arbitrary, invalid from the beginning (void ab initio), and beyond their legal authority (without jurisdiction)---Respondents' actions in placing the petitioner's name on the Exit Control List (ECL), or Passport Control List (PCL), if any, were unlawful, therefore, same were overturned by directing the respondents to immediately remove the petitioner's name from the ECL---Constitutional petition was allowed, in circumstances.

Wajid Shamsul Hassan's case PLD 1997 Lahore 617 and Ayyan Ali's case 2017 SCMR 1179 rel.

(b) Passports Act (XX of 1974)---

----Ss. 3 & 8---Passports Rules, 2021, R. 23---Regulatory framework of foreign travel for Pakistani citizens---Recalling, cancellation and impounding of passports---Essence and scope---Issuance of show-cause notice and opportunity of hearing before impounding, requirement of---Exception---Pakistani citizens' travel is regulated by the Passports Act of 1974 and its related rules---Section 3 of the Passports Act, 1974 mandates a valid passport for foreign travel, while S. 8 thereof grants the Federal Government broad authority to manage passports, including recalling, cancellation, and impounding---Section 8 of the Act, 1974 generally requires a show-cause notice before these actions, except in national security cases---A review process is available for such cases---Rule 23 of the Passports Rules, 2021 outlines the procedures for impounding passports, specifying authorized officials and grounds for action, including security threats, avoiding prosecution, and criminal activities---Impounded passports are to be kept in custody, and failure to surrender a passport upon requisition is punishable---Section 8 of the Passports Act, 1974, empowers the Federal Government, through a Secretary or authorized officer, to recall passports for cancellation, impoundment, or confiscation---This requires a show cause notice to the passport holder, as per subsection (2), however, subsection (3) exempts the government from providing notice or a hearing if the passport holder is deemed to be involved in subversive activities or actions detrimental to Pakistan's interests or foreign relations---Subsection (4) then grants the affected person the right to challenge the decision.

Syed Abul Aala Maududi's case PLD 1969 Lah. 908 and Syed Sharifuddin Pirzada's case PLD 1973 Kar. 132 ref.

(c) Exit from Pakistan (Control) Ordinance (XLVI of 1981)---

----S. 2---Foreign travel, restriction on---Inclusion of name in Exit Control List (ECL)---Ministry of Interior passing the order restricting foreign travel of Pakistani citizen---Legality---Power, authority and jurisdiction of Ministry of Interior---Power to restrict travel under the Exit from Pakistan (Control) Ordinance, 1981 resides solely with the Federal Cabinet and not the secretary of the Ministry of Interior---Regardless, the fundamental rights of the people of Pakistan are beyond any form of curtailment.

Mustafa Impex's case PLD 2016 SC 808 rel.

(d) Exit from Pakistan (Control) Ordinance (XLVI of 1981)---

----S. 2---Constitution of Pakistan, Arts. 4, 9 & 15 ---Placing restriction on foreign travel---Inclusion of name in Exit Control List (ECL)---International travel being a fundamental right---Fundamental rights, protection of---Scope---Foreign travel can be restricted despite valid travel documents---Reasons for placing restriction on foreign travel can be withheld---Travel restrictions placed by state must be lawful---Article 4 of the Constitution guarantees legal protection for all---Articles 15, 9 & 4 establish the right to travel, including international travel, as a fundamental right, though it's subject to lawful, reasonable restrictions in the public interest---Arbitrary limitations, like those based on political beliefs, are unacceptable; restrictions must be for genuine national security concerns---Travel is vital for information access and personal liberty, linked to freedom of speech and association---Fundamental rights protect individuals from arbitrary state power and are essential for a free society---Even unenumerated rights integral to named rights are protected---While fundamental rights are crucial, they must be balanced against the State's need to maintain order---The Constitution allows for reasonable restrictions on certain rights in the public interest, but these restrictions must be lawful---The right to travel, a basic human right, is integral to personal liberty---International travel is not merely a convenience but a fundamental right under Art. 9 of our Constitution---Modern society necessitates global mobility for education, employment, and personal fulfillment, making travel a crucial aspect of both liberty and life---Exit from Pakistan (Control) Ordinance, 1981, empowers the Federal Government to restrict travel under S. 2, even with valid documents, if deemed in the public interest---Although S. 2 of the Ordinance 1981 allows restrictions without prior hearings, overriding natural justice, Supreme Court rulings mandate that the Federal Cabinet exercises this authority---While prior hearings are often omitted to prevent immediate departures, the Federal Cabinet can withhold reasons for the ban if deemed against the public interest.

Kashif Khan Tanoli for Petitioner.

Ms. Wajiha Mehdi, Assistant Attorney General and Ghous Bakhsh, Special Prosecutor NAB for Respondents.

2025 C L C 1629

[Sindh (Larkana Bench)]

Before Jan Ali Junejo, J

SUI SOUTHERN GAS COMPANY LIMITED through Sub-Attorney ---Appellant

Versus

TAJUDDIN WAQAR SHAIKH ---Respondent

1st Civil Appeal No. S-03 of 2024, decided on 14th May, 2025.

Gas (Theft Control and Recovery) Act (XI of 2016)---

----Ss. 6, 7 & 13---Gas theft, allegation of---Suit for recovery---Dismissal of suit on the basis of acquittal of accused in a related criminal case---Legality---Judgment acquitting the accused in a criminal case is not binding on civil matters and does not preclude institution and prosecution of a civil suit for recovery of dues---Civil and criminal proceedings---Distinct standard of proof---Appellant/Sui Southern Gas Company Limited (SNGPL), filed a summary suit for recovery against the respondent under S. 6 of the Gas (Theft Control and Recovery) Act, 2016 (the Act) alleging gas theft---The appellant claimed that during an inspection the respondent's gas meter was found tampered with, having a broken index and glass---A joint gas load survey was conducted, and the meter was replaced---The meter was later tested in respondent's presence and again found tampered---An FIR was lodged, and the appellant's claim assessment committee determined a loss of Rs. 439,700/---The appellant prayed for recovery of the amount and other reliefs, however, the Trial Court dismissed the suit in limine, citing the respondent's acquittal in the related criminal case---Pivotal question for determination by the High Court was as to "Whether a civil suit for recovery was maintainable under the Gas (Theft Control and Recovery) Act, 2016, despite the acquittal of the accused in the corresponding criminal proceedings?"---Held: The standard of proof in criminal proceedings (beyond a reasonable doubt) was distinct from the standard of proof in civil proceedings (preponderance of probability)---Acquittal of an accused in a criminal case did not, in itself, preclude the institution and successful prosecution of a civil suit for the recovery of dues---Consequently, the findings of a criminal court were not determinative of the outcome in a civil court addressing related matters---The determinations rendered in criminal proceedings did not ipso facto dictate the adjudication of civil liabilities---In the present case, the Trial Court dismissed the suit in limine based solely on the acquittal of the respondent in the criminal case, without considering the merits of the civil claim or adhering to the due procedure as laid down under Ss. 6 & 7 of the Gas (Theft Control and Recovery) Act, 2016---Section 6 of the Act authorizes both consumers and gas utility companies to file cases before gas utility courts under applicable civil or criminal procedure laws, supported by relevant documents such as gas bills or service agreements---It outlines the procedural requirements for institution of the suits, including specific content to be included in the plaint, particularly for utility companies, and establishes methods for serving summons through personal delivery, postal or courier services, and newspaper publication---Section 7 governs the defendant's right to contest the suit by mandating an application for leave to defend within 21 days of service---This application must be accompanied by a written statement identifying legal or factual disputes and supported by relevant documents---Failure to file such an application, or to meet its requirements, allows the Court to treat the claims as admitted and pass a decree accordingly---The Court may grant leave to defend only if substantial questions of law or fact are raised, and may impose conditions such as the deposit of claimed dues---Utility Court is also empowered to frame issues relating to such substantial questions, attach conditions to the grant of leave, and record evidence on those issues---In these circumstances, the approach adopted by the Trial Court was contrary to the spirit and intent of law---Consequently, the impugned order passed by the Trial Court was unsustainable in law and could not be upheld---Consequently, the impugned order was set aside and the suit was remanded to the trial court to be decided afresh on its own merits, strictly in accordance with the procedure stipulated under the Gas (Theft Control and Recovery) Act, 2016, and in adherence to the principles of natural justice---Appeal was accepted, in circumstances.

Karachi Transport Corporation and another v. Muhammad Hanif and others 2009 SCMR 1005 and Salman Ashraf v. Additional District Judge, Lahore and others 2023 SCMR 1292 rel.

Shakeel Ahmed Abro for Appellant.

Gulsher Junejo for Respondent.

Abdul Waris Bhutto, Assistant Advocate General for Government of Sindh.

2025 C L C 1664

[Sindh]

Before Mohammad Abdur Rahman, J

FAISAL AMJAD ---Plaintiff

Versus

PROVINCE OF SINDH through Chief Secretary and 2 others ---Defendants

Suit No. 666 and C.M.A. No. 9400 of 2024, decided on 7th September, 2024.

Specific Relief Act (I of 1877)---

----Ss. 39, 42 & 54---Sindh Cultural Heritage (Preservation) Act (XII of 1994), Ss. 6 (1), 8, 10 & 18---Sindh Building Control Ordinance (V of 1979), S. 14---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Suit for cancellation, declaration and injunction---Interim injunction, grant of---Dangerous building---Protected heritage---Plaintiff was aggrieved of notification issued by authorities declaring suit property as protected heritage and restraining demolition of the structure, which had already been declared dangerous by Sindh Building Control Authority---Plaintiff sought suspension of the notification restraining demolition of suit property---Validity---No agreement was entered into under S. 8 of Sindh Cultural Heritage (Preservation) Act, 1994, and neither the Provincial Government nor its Committee had any power to restrain demolition of the structure---Only power that the Committee could exercise was to acquire the structure under S. 12 of Sindh Cultural Heritage (Preservation) Act, 1994---It was only where there was a breach of an order that was passed under S. 10(1) of Sindh Cultural Heritage (Preservation) Act, 1994 that action could be taken under S. 10(2) or 18 of Sindh Cultural Heritage (Preservation) Act, 1994---Right to regulate dangerous buildings vested solely within the jurisdiction of Sindh Building Control Ordinance, 1979---Issue of whether or not a "protected heritage" was a "dangerous building" did not need to be referred to Provincial Government whose responsibilities and obligations under Sindh Cultural Heritage (Preservation) Act, 1994 were secured by their nomination on to the "Technical Committee for Dangerous Buildings" and where it could address any concerns at a meeting of that Committee---Sindh Buildings Control Authority was at liberty to issue demolition certificate without obtaining No Objection Certificate of Provincial Government or from the Committee but after passing a speaking order through its Technical Committee for Dangerous Buildings determining whether or not the structure on suit property was a Dangerous Building Category-1 or not---High Court suspended the notice in question issued by Provincial Government and the Committee, and both were restrained from interfering in any manner with the demolition of the structure on suit property, except through it's participation in a meeting of the Technical Committee for Dangerous Buildings for determining whether or not the structure on suit property was a Dangerous Building Category-1 or not---Interim injunction was granted accordingly.

Karachi Property Investment Company Pvt. Limited v. Government of Sindh PLD 2017 Sindh 690 and Saad Aqil v. Province of Sindh and others C.P. No. D-6115 of 2023 ref.

Mirza Moiz Baig for Plaintiff.

Dhani Buksh Lashari for SBCA along with Syed Fahim Murtaza, Secretary TCDB, SBCA for Defendants.

2025 C L C 1733

[Sindh]

Before Muhammad Shafi Siddiqui, CJ and Jawad Akbar Sarwana, J

WORLDCALL CABLE (PRIVATE) LIMITED through Authorized Representative ---Petitioner

Versus

The FEDERATION OF PAKISTAN through Secretary Ministry of Information and Broadcasting, Islamabad and another ---Respondents

Constitutional Petition No. D-3654 of 2019, decided on 22nd August, 2024.

Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002)---

----Ss. 3 & 9---Pakistan Electronic Media Regulatory Authority Rules, 2009, Rr.5, 6(2), 8, 10, 12 & Schedule B---Cable TV---Renewal of licence fee---Petitioner was aggrieved of charging of fee on the basis of category of licence according to number of subscribers tabulated in Table VI, Schedule-B of Pakistan Electronic Media Regulatory Authority Rules, 2009 and not on the basis of actual number of subscribers---Validity---Petitioner could not pick and choose vertical columns of his choice---If any licence was categorized accordingly, then all the nomenclature that it followed would come with it---Notified Rules and the Table which provided for subscriber licensee were not in violation of any rights guaranteed under the licence to petitioner as licensee---Demand raised by Licensing Authority as per Pakistan Electronic Media Regulatory Authority Rules, 2009 could not be suspended or annulled as the same was not solely dependent on the number of subscribers as urged by petitioner---Number of subscribers would come with the category of licence which was enjoyed---Petitioner chose to have a B-10 licence and number of subscribers would come as an inbuilt mechanism as a part of the Table VI to Schedule-B of Pakistan Electronic Media Regulatory Authority Rules, 2009---Petitioner had no choice but to take it or leave it and could not pick and choose as he desired within the Table---Constitutional petition was dismissed, in circumstances.

Fahad Hashmi for Petitioner.

Khaleeq Ahmed, Deputy Attorney General for Respondents.

Khashif Hanif for Respondent No. 2/PEMRA.

2025 C L C 1744

[Sindh (Sukkur Bench)]

Before Nisar Ahmed Bhanbhro, J

RASOOL BUX ---Applicant

Versus

The PROVINCE OF SINDH through Secretary Revenue Department, Karachi and others ---Respondents

Civil Revision Application No. S-193 of 2011, decided on 28th March, 2025.

(a) Colonization and Disposal of Government Lands Act (V of 1912)---

----S. 10---Sindh Land Revenue Act (XVII of 1967), S. 164---Sindh Revenue Jurisdiction Act (X of 1876), S. 11---Civil Procedure Code (V of 1908), O.XLI, R. 31---Constitution of Pakistan, Art. 10-A---State land, grant of---Cancellation of grant by the revenue authorities---Scope---Grant of State land cannot be cancelled after acquisition of proprietary rights---Order passed by Board of Revenue cancelling the grant challenged before the civil court---Jurisdiction of civil court---Scope---Civil court as the court of ultimate jurisdiction---Order passed by Board of Revenue could be challenged before the civil court---Right of fair trial---Issuing notice to affected party and affording opportunity of hearing, principle of---Facts in brevity were that the applicant was granted few acres of agricultural land by the colonization officer in 1991-92 upon full payment of tenancy installments, with subsequent survey, issuance of T.O. Form, and entry in revenue records, however, in 2003, the executive district officer (revenue)/respondent No. 2 cancelled the land grant without issuing notice or affording a hearing, claiming the land was within 20 chains of the village site and reserved for villagers---Petitioner upon facing dispossession threats from private respondents filed a civil suit for declaration along with permanent and mandatory injunction which the Trial Court decreed in his favor---On appeal by private respondents, the appellate court reversed the decree, dismissing the suit as barred under S. 11 of the Sindh Land Revenue Jurisdiction Act, 1876---The applicant then filed a revision petition before the High Court asserting that the cancellation was illegal, done without jurisdiction and in violation of natural justice, and that civil court jurisdiction was not barred in such cases---The moot point involved in the present matter was "the grant of land to the petitioner and its cancellation by the authorities"---Held: The Colonization and Disposal of Government Lands (Sindh) Act, 1912 (the Act 1912) provided a mechanism for grant of state land on harap conditions and cancellation of grants in case of any violation by the allottee---Grant in favor of the applicant was not cancelled on account of any deficiency or breach envisaged in subsection (5) of the S. 10 of the said Act, instead, it was cancelled on the ground that the suit property fell within 20 chains of the village site, hence was not permissible for grant as envisaged in condition 13 of the Statement of Conditions of 1989 issued by Land Utilization Department Government of Sindh for grant of state land---The respondent No. 2 while passing the impugned order lost sight of the important aspect of case that the grant had already matured and applicant had become full owner of the suit property, after issuance of T.O Form, whereby, entries in the record of rights were also maintained in his favor---Moreover, since the omission of S. 30 of the Act, 1912 through Sindh Repealing and Amending Act, 1975 the revenue/colonization authorities did not enjoy the power to cancel grants after acquisition of the proprietary rights as the grant was made prior to such omission of the said provision---The impugned order dated was passed in violation of mandatory provisions of S. 164 of the Sindh Land Revenue Act, 1967---Applicant was condemned unheard and the impugned order was passed behind his back, which violated his rights as to the fair trial thus perverse to the law---The applicant had an inalienable right of hearing and impugned order was passed in violation of principles of natural justice and doctrine of audi alterm partem was applicable to it; on that score alone the impugned order was not sustainable under the law---With regards the jurisdiction of the civil court, since the order of a revenue authority passed under its revision jurisdiction attained finality and no rights of appeal, second revision or review was provided under the law, the petitioner had no other remedy available under the law except to file a civil suit, therefore, embargo contained in S. 11 of the Sindh Revenue Jurisdiction Act, 1876 did not apply---Respondent No. 2 exercised jurisdiction not vested in it under the law and the Appellate Court failed to exercise jurisdiction vested in it---The wrong committed by the respondent No. 2 was rectified by the civil court but the appellate court failed to comprehend the legal sustainability of the impugned order and authenticated the same which resulted in miscarriage of justice---Though the appellate court passed the impugned judgment and decree dated violating the mandatory provisions of R. 31 of O. XLI of C.P.C. without framing the points for determination, however the issue involved in the lis was a legal controversy and an elaborate discussion was made on the said legal controversy in the impugned judgment, therefore it was not in the fitness of things to remand this matter back for decision afresh on appeal, as the parties were under litigation since last about more than 22 years and mere non-mentioning of the points under issue would not otherwise render the judgment nullity when the specific question came under consideration while dealing with the appeal---Judgment and decree passed by the appellate court were set-aside and the revision petition was allowed, in circumstances.

(b) Sindh Revenue Jurisdiction Act (X of 1876)---

----S. 11---Civil Procedure Code (V of 1908), S. 9---Jurisdiction of civil court in revenue matters---Scope---There is no doubt that ordinarily a party in revenue matters should exhaust all his remedies by way of appeal before invoking the aid of the civil court---But there are different considerations where the allegation of party is that the impugned order is nullity in the eye of law---There is ample authority that in such cases the jurisdiction of the civil court is not barred.

Mian Mohammed Latif v. Province of West Pakistan through Deputy Commissioner Khairpur and others PLD 1970 SC 180 rel.

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

----S. 115---Revisional jurisdiction of the High Court---Suo motu powers of High Court under revisional jurisdiction, exercise of---Concurrent findings of the courts below---Scope---To ensure that the subordinates Courts or quasi-judicial forums exercise jurisdiction vested in them in accordance with and within the bounds of law, the High Court has been bestowed with supervisory jurisdiction of superintendence---This supervisory role has its own significance in the dispensation of justice---Whenever it appears to the High Court that the subordinate courts have exercised a jurisdiction not vested in it by law, or have failed to exercise a jurisdiction so vested, or exercised jurisdiction illegally or with material irregularity, it can take cognizance of the matter in exercise of its revision jurisdiction under S. 115 read with S. 151 of C.P.C. in matters relating to civil disputes to rectify the illegalities or/and irregularities in the judgments and orders of the subordinate courts, to secure the ends of justice---If the concurrent findings recorded by the lower fora are found to be in violation of law, or based on misreading, non-reading of evidence, then they cannot be treated as being so sacrosanct or sanctified that cannot be reversed by the High Court in revisional jurisdiction, which is pre-emptively corrective and supervisory in nature---In fact, the Court in its revisional jurisdiction under S. 115 of C.P.C. can even exercise its suo moto powers to correct any jurisdictive errors committed by a subordinate Court to ensure strict adherence to the safe administration of justice---The jurisdiction vested in the High Court under S. 115 C.P.C is to satisfy and reassure that the order is within its jurisdiction---The scope of revisional jurisdiction is restricted to the extent of misreading, non-reading of evidence, jurisdictional error or an illegality in the judgment of the nature which may have a material effect on the result of the case, or if the conclusion drawn therein is perverse or conflicting to the law.

Mst. Faheem Begum (deceased) through Legal Heirs v. Islamuddin (deceased) through Legal Heirs and others 2023 SCMR 1402 rel.

(d) Sindh Land Revenue Act (XVII of 1967)---

----S. 164---Revisional jurisdiction of Board of Revenue---Suo motu powers, exercise of---Scope---No doubt the Board of Revenue may pass appropriate orders at any time of their own motion regarding any of the proceedings pending or disposed of by the subordinate revenue forum but such powers are not unfettered and are subject to certain limitations---Exercise of such powers without affording opportunity of hearing to an interested party would not only be violation of the principles of natural justice but also contrary to the provisions of S. 164 of the Sindh Land Revenue Act, 1967 itself.

Ali Gul Abbasi for Applicant.

Soomer Das R. Permani for Respondents Nos. 6 to 8.

Ghulam Abbas Kuber, Additional Advocate General for Respondents Nos. 1 to 5.

2025 C L C 1791

[Sindh (Mirpurkhas Bench)]

Before Amjad Ali Bohio and Dr. Syed Fiaz ul Hassan Shah, JJ

ALI AKBAR ---Petitioner

Versus

ABDUL JABBAR and 5 others ---Respondents

C.P. No. D-965 of 2024 (old No. D-2487 of 2019), decided on 18th February, 2025.

(a) Qanun-e-Shahadat (10 of 1984)---

----Arts. 59 & 164---Electronic Transactions Ordinance (No. LI of 2002), S. 18---Civil Procedure Code (V of 1908), O. V, R. 20(b) & O. XVIII R. 4---Specific Relief Act (I of 1877), Ss. 12 & 54---Usage of modern devices and scientific technologies as evidence in courts---Scope---Doctrine of "updating construction of statutes"---Scope---Filing of application in suit for specific performance with permanent injunction by the respondents/defendants for calling scanner/modern device to read out the serial number and barcode of stamp paper used by the petitioner/plaintiff for agreement to sell---Delay in proceedings before Trial Court, plea of---Legality---Application was dismissed by the Trial Court, but accepted by the revisional court---Validity---High Court was not persuaded with such contention as the petition was pending for the last 5 years and no efforts were taken by the petitioner to expedite the proceedings rather delay was caused by him and the petition was filed to undermine the law such as Arts. 59 and 164 of the Qanun-e-Shahadat, 1984, O. V, R. 20(b) and O. XVIII R. 4, C.P.C. and the dictum of the Supreme Court of Pakistan on usage of modern devices and scientific technologies as evidence in courts---Status of forensic evidence is corroboration and universally it is not conclusive evidence, but its value is robust explanatory to the direct evidence---Law is guidepost for minimally acceptable behavior in society---In a modern society, the law informs everyday life in a wide variety of ways and is reflected in numerous branches of law with its ultimate object to serve society, as such immense need to use technology with a dynamic and visionary scheme in court proceedings---Petitioner failed to satisfy the High Court as to what prejudice would be caused to him and how he was aggrieved with the order of revisional court in case Art. 164 of Qanun-e-Shahadat, 1984, had been invoked to verify the authenticity of document by usage of modern devices in a transparent manner being helpful to the Trial Court to arrive at just and proper decision to determine the controversy between the parties---Under the doctrine of "updating construction of Statutes" the order of revisional court for the permissibility to use modern device (scanner) to read barcode of disputed document under Art. 164 of Qanun-e-Shahadat, 1984, for determinative steps about birth date, time or seriality order as well as veracity as per Stock Register of Stamps Paper, High Court did not find any illegality or jurisdictional defect in that order---Constitutional petition was dismissed, in circumstances.

Federal Shariat Court PLD 2010 FSC 215; Fakir Muhammad v. Federation of Pakistan PLD 1958 SC 118; Azeem Khan v. Mujahid Khan 2016 SCMR 274; Salman Akram Raja v. Government of Punjab 2013 SCMR 203; 2016 SCMR 2084; Ali Haider alias Pappu v. Jameel Hussain and others PLD 2021 SC 362 and Meera Shafi v. Ali Zafar PLD 2023 SC 211 rel.

(b) Constitution of Pakistan---

----Art. 199(1)(a)---Constitutional jurisdiction of High Court---Object and purpose---Objective of Art. 199 of the Constitution is to foster justice, protect rights and correct any wrongs---Constitution empowers the High Court to rectify wrongful or excessive or colorable exercise of jurisdiction by lower courts or to probe the procedural illegality or jurisdictional error or procedural improprieties that may have prejudiced a case of an aggrieved person.

Mst. Tayyeba Ambareen and another v. Shafqat Ali Kiyani and another 2023 SCMR 246 rel.

(c) Constitution of Pakistan---

----Art. 199(1)(a)---Constitutional petition---Maintainability---Aggrieved person, meaning of---Requirement of being "aggrieved person"---Scope---It is mandatory for a petitioner to demonstrate from the record that he is aggrieved with an order realistically otherwise one should bear in mind that a person cannot be said to be an aggrieved party within the meaning of Art. 199 of the Constitution, if his rights and interests are not adversely affected or if he suffers no loss or injury by a particular order---It is sine quo non for proceeding of writ or judicial review under Art. 199(1)(a) of the Constitution that a person should be aggrieved with an order and in other words a non-aggrieved person does not qualify to invoke extra-ordinary jurisdiction of High Court.

Hafiz Hamadullah v. Saifullah Khan and others PLD 2007 SC 52 rel.

Rao Faisal Ali for Petitioner.

Muhammad Sharif, Assistant Advocate General for Respondent No. 6.

2025 C L C 5

[Lahore (Rawalpindi Bench)]

Before Sadaqat Ali Khan, Mirza Viqas Rauf and Jawad Hassan, JJ

NASIR SHARIF---Petitioner

Versus

SABEELA IMTIAZ and another---Respondents

Writ Petition No.4132 of 2023, decided on 11th November, 2024.

Family Courts Act (XXXV of 1964)---

----Ss. 5, 7, 9 & 17A---Suit for restitution of conjugal rights---Maintenance allowance---Petitioner / husband was aggrieved of fixation of monthly maintenance allowance to respondent / wife during proceedings of suit for restitution of conjugal rights---Validity---Wife while resisting a suit for restitution of conjugal rights can raise any of the permissible claims covered under Family Courts Act, 1964 but in such case Family Court would be obliged to provide opportunity to husband (plaintiff) to file a rejoinder in response thereto, which has to be treated as written statement on his behalf---Family Court allowed respondent / wife to raise her claim of maintenance while responding in suit for restitution of conjugal rights, filed by petitioner / husband but without affording the latter an opportunity to submit rejoinder and had proceeded to fix interim maintenance of respondent / wife which even otherwise, was negation of S. 17A of Family Courts Act, 1964---High Court directed Family Court to permit petitioner / husband to file his rejoinder to claim of maintenance, raised by respondent / wife in her written statement and on receipt of the same, if so filed, proceed to fix interim maintenance---High Court set aside order passed Family Court fixing maintenance allowance---Constitutional petition was allowed accordingly.

Mst. Yasmeen Bibi v. Muhammad Ghazanfar Khan and others PLD 2016 SC 613; Sayed Abbas Taqi Mehdi v. Mst. Sayeda Sabahat Batool and others 2010 SCMR 1840; Major Muhammad Khalid Karim v. Mst. Saadia Yaqub and others PLD 2012 SC 66; Akhtar Kamal v. Mst. Samreen Akhtar and 2 others 2018 CLC 887 and Shehryar Gul v. Mst. Sadaf Bibi 2016 MLD 200 ref.

Haroon Irshad Janjua for Petitioner.

Khawaja Khalid Farooq for Respondent No.1.

Khalid Ishaq, Advocate General, Punjab.

2025 C L C 32

[Lahore]

Before Sultan Tanvir Ahmad, J

NAZIR AHMAD and another---Petitioners

Versus

MUHAMMAD SIDDIQUE---Respondents

Civil Revision No.849 of 2011, decided on 19th january, 2024.

(a) Specific Relief Act (I of 1877)---

----Ss. 42 & 39---Suit for declaration and cancellation of mutation---Oral bargain, assertion of---Proof---Deficiency---Petitioners/defendants assailed judgment and decree passed in favour of the respondent / plaintiff by the District Court while reversing dismissal of suit by the Civil Court---Claim of the respondent / plaintiff was that he is owner of suit-property, however, the petitioners / defendants managed verbal mutation (the 'mutation') in their favour in connivance with revenue officials---Defence set-up by the petitioners / defendants in their pleading included oral bargain between the parties---Validity---Record revealed that the written statement was silent about the names of the witnesses of oral bargain, the agreement as well as the place and time when the bargain took place---The defence was setup in preliminary objections, whereas, on merit paragraphs of the plaint were evasively denied by simply stating that the facts stated therein are incorrect---Written statement was silent as to the witnesses of oral bargain; later one witness for defendants' side (claimed to be their tenant ) was introduced to fill the said gap, who also failed to produce any receipt of rent or payment of utility bills by him of the premises-in-question ; he claimed that documents reflecting payments of rents or utility charges were at his home but never bothered to produce such documents until today---On the other hand, the respondent / plaintiff stood by his pleadings in examination-in-chief, who was cross-examined but his answers to all the questions put to him remained reasonable---Respondent/plaintiff, inter alia, deposed that the petitioners were part of gang of land grabbers; his statement was supported by the lambardar as Plaintiff's Witness, through coherent evidence---Petitioners had failed to convince about any infirmity in the impugned judgment passed by the District Court warranting interference by the High Court in revisional jurisdiction---Revision petition was dismissed, in circumstance.

(b) Specific Relief Act (I of 1877)---

----Ss. 42 & 39---Suit for declaration and cancellation of mutation ---Genuineness of impugned- mutation---Proof---Deficiency---Petitioners/ defendants assailed judgment and decree passed in favour of the respondent / plaintiff by the District Court while reversing dismissal of suit by the Civil Court---Claim of the respondent / plaintiff was that he is owner of suit-property, however, the petitioners / defendants managed verbal mutation (the 'mutation') in their favour in connivance with revenue officials---Defence set-up by the petitioners / defendants in their pleading include genuineness of the mutation---Validity---Record reveal that though the relevant Tehsildar and Patwari appeared as witnesses of defendants, however, mutation-in-question was witnessed by lambardar and Patidar, who were never produced by the petitioners ; somehow, the lambardar appeared from the respondent-side as Plaintiff's Witness and he denied his signatures on the mutation as well as passing of the mutation in his presence; his evidence remained coherent during cross-examination---There was no explanation on record for not producing the second preferred witness i.e. Patidar---Revenue law and the rules framed thereunder prefer mutation to be sanctioned in the presence of lambardar and respectable(s) of the relevant village, having clear rationale that such transactions have some inviolability and when required such respectable(s) can depose accordingly---In course of evidence, Tehsildar and Patwari as DWs stated that lambardar identified the respondent and witnessed the mutation, who already denied the event when he appeared as Plaintiff's Witness---Tehsildar or Patwari during the trial could not explain the reasons for not bringing pert-sarkar with them---No application for comparison of signatures of lambardar (Plaintiff's Witness) on the mutation was instituted---On the other hand, the respondent / plaintiff stood by his pleadings in examination-in-chief, who was cross-examined but his answers to all the questions put to him remained reasonable---Respondent/plaintiff, inter alia, deposed that the petitioners were the part of gang of land grabbers; his statement was supported by the lambardar as a Plaintiff Witness, through coherent evidence---Petitioners had failed to convince as to any infirmity in the impugned judgment passed by the District Court warranting interference by the High Court in revisional jurisdiction---Revision petition was dismissed, in circumstances.

(c) Specific Relief Act (I of 1877)---

----Ss. 42 & 39---Suit for declaration and cancellation of mutation---Agreement, non-production of---Effect---Petitioners/ defendants assailed judgment and decree passed in favour of the respondent / plaintiff by the District Court while reversing dismissal of suit by the Civil Court---Claim of the respondent / plaintiff was that he is owner of suit- property, however, the petitioners / defendants managed verbal mutation (the 'mutation') in their favour in connivance with revenue officials---Defence set-up by the petitioners / defendants in their pleading included agreement having been executed between the parties---Validity---Record reveals that somehow, the agreement, one of the most crucial documents, was not produced during the trial or proceedings of appeal and then nine (09) years of present revision-petition---Thereafter, a miscellaneous application was instituted, in the year 2020, seeking permission to produce the agreement---The same reflected two witnesses as stamp-vendor---The names of the said persons were not only missing in the pleadings but there remained complete silence regarding them for 13 years---Miscellaneous application and the accompanied agreement was not just an attempt to derail the proceedings and to fill in lacuna but at the same time it was an attempt to prolong the status quo as to the suit property---On the other hand, the respondent / plaintiff stood by his pleadings in examination-in-chief, who was cross-examined but his answers to all the questions put to him remained reasonable---Respondent/plaintiff, inter alia, deposed that the petitioners are part of gang of land grabbers; his statement was supported by the lambardar as a Plaintiff's Witness, through coherent evidence---Petitioners failed to convince as to any infirmity in the impugned judgment passed by the District Court warranting interference by the High Court in revisional jurisdiction---Revision petition was dismissed, in circumstances.

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

----O.XLI, R.31---Judgment passed by District (First Appellate) Court---Points for determination and issue-wise finding not recorded---Effect---Contention of the petitioners was that the points for determination had not been formulated in a sequential manner or issue-wise finding was not recorded---Validity ---Order XLI, R. 31 of the Civil Procedure Code, 1908 requires the written judgment of the Appellate Court to state (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled---Undeniably, non-adherence of the said provision can be fatal and the same can only be ignored if there has been a substantial compliance of the provision---Rationale behind the said provision is that not only the party losing the case but the next higher forum should know what weighed with the Court in deciding the lis against one party and in favour of the other---In the present case, the Appellate Court recorded the points raised by the two sides and gave findings of facts on the basis of correct appreciation of evidence and law applicable thereupon---The reasonings rendered by the Appellate Court were though brief but they were pertinent---Appellate Court had correctly allowed the suit---Thus, the contention of the petitioners had lost force since the material questions had already been answered in substantial compliance---Petitioners had failed to convince as to any infirmity in the impugned judgment passed by the District Court warranting interference by the High Court in revisional jurisdiction---Revision petition was dismissed, in circumstances.

Pakistan Refinery Ltd., Karachi v. Barrett Hodgson Pakistan (Pvt.) Ltd. and others 2019 SCMR 1726; Ch. Abdul Kabeer v. Mian Abdul Wahid and others 1968 SCMR 464; Mst. Roshi and others v. Mst. Fateh and others 1982 SCMR 542 and Qadir Bakhsh (deceased) through L.Rs v. Allah Dewaya and another 2011 SCMR 1162 ref.

Fida Hussain Rana for Petitioners.

Amir Wakeel Butt, Syed Hassan Ali Gillani and Sahibzada Saleem Raza for Respondents along with Muhammad Siddique respondent in person.

2025 C L C 56

[Lahore]

Before Shahid Karim, J

SALMAN AKRAM RAJA---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner and others---Respondents

Writ Petition No.28985 of 2024, decided on 29th May, 2024.

Elections Act (XXXIII of 2017)---

----S.140(3)---Election Tribunal, appointment of---Consultative process---Scope---Petitioner / candidate was aggrieved of refusal of Election Commission to appoint Judges of High Court so nominated by Chief Justice of High Court to act as Election Tribunals---Validity---Provision of S. 140(3) of Elections Act, 2017 refers to a stage prior to appointment of Election Tribunals by Election Commission---Such stage contemplates appointment of a sitting Judge as Election Tribunal in consultation with Chief Justice of High Court concerned---Consultative process has to precede appointment to be made by Election Commission---Election Commission is not tasked with determining their fitness and suitability and has no power at all to pick and choose Judges out of a panel which suits its cause---Such act of Election Commission is not only offensive but strikes at the concept of judicial integrity and comity---In matters of appointment of Election Tribunals under S. 140 of Elections Act, 2017 the opinion of Chief Justice of a High Court had pre-eminence over a contrary view of Election Commission, which was bound to appoint Judges nominated by the Chief Justice---High Court set aside notification issued by Election Commission assigning areas of jurisdiction to Election Tribunals---Territorial jurisdiction and areas to be assigned was exclusive domain of Chief Justice of a High Court---High Court declared letter issued by Election Commission requiring Chief Justice of High Court to provide panel of Judges to Election Commission for their appointment as Election Tribunals, as unlawful and beyond its powers---High Court also set-aside notification issued by Election Commission assigning territorial jurisdictions of Election Tribunals---Election Commission was under obligation to appoint as Election Tribunals all Judges of High Court who were nominated by Chief Justice unless the Chief Justice would withdraw any name or substitute it---Constitutional petition was allowed accordingly.

Gul Taiz Khan Marwat v. The Registrar, Peshawar High Court PLD 2021 SC 391; Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahab-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Reading Law: The Interpretation of Legal Texts by Antonin Scalia and Bryan A. Garner; Shapiro v. United States 335 U.S. 1, 16 (1948); [1870] L.R. 5 Ch. App. 703 and Sh. Ria ul Haq and another v. Federation of Pakistan through Ministry of Law and others PLD 2013 SC 501 rel.

Sameer Khosa and Ms. Momal Malik for Petitioners.

Asad Ali Bajwa, D.A.G. for Respondent.

Sikandar Bashir Mahmood for Respondent-ECP with Khurram Shahzad, Addl. D.G. Law, Haroon Kasi, Director (Law), Ms. Bushra Rasheed, Deputy Director (Law) and Imran Arif Ranjha, Legal Advisor for ECP.

2025 C L C 95

[Lahore]

Before Ahmad Nadeem Arshad, J

Messrs STACO-SHAHID BUILDERS JOINT VENTURE (JV)---Appellant

Versus

LAHORE CANTONMENT BOARD---Respondent

F.A.O. No.24690 of 2024, decided on 3rd September, 2024.

(a) Arbitration Act (X of 1940)---

----S.20(4)---Cantonments Act (II of 1924), S.84---Appointment of arbitrator---Dispute arose between the parties with regard to initial work order and subsequent changes/enhancement in the costs for the project---Appointment of arbitrator was to be made in such manner as may be agreed upon between the parties in terms of the contract---Contention of the appellant was that an independent arbitrator ought to have been appointed instead of appointment of the arbitrator in terms of the contract owing to his biasness and partiality being part of the respondent-department as its appellate authority---Validity---Whole object underlying the Arbitration Act, 1940 (Act) is to enforce the arbitration agreement whereby the parties bind themselves down to have their disputes, arising out of transaction to which such an agreement is applicable, adjudicated upon and decided by the domestic tribunal---Under clause 4 of S.20 of the Act, power of the Court to order reference to an arbitrator appointed by itself did not confer the authority on the Court to substitute the original agreement of the parties by an entirely new agreement of its own choice---If the parties out of their free-will and consent appointed a third person knowing fully well his relation with any one of the parties to dispute, such arbitration agreement shall not be invalided on the principle of bias and the arbitrator cannot be removed on this ground---Known interest of an arbitrator did not in any way invalidate his appointment, and it was only in a case where such an interest was concealed or came into existence after the appointment, that the appointment was rendered invalid or was liable to be revoked---Appellant was well aware of the authority and department of the arbitrator from the very first date and the Arbitrator was not the official of the respondent-department rather he was an Appellate Authority under S.84 of the Cantonments Act, 1924, who was appointed by the Government as defined under Pakistan Cantonment Service Rules, 1952---Arbitrator was not a participant in the meetings of Cantonment Board, therefore, any kind of allegation of biasness or partiality on his part was purely hypothetical and presumptuous, without any kind of evidence at all---Parties had already appointed the arbitrator for adjudication of the disputes arising out of the agreement and the appellant could not wriggle out from his commitment, and was precluded from approaching the court for appointing an arbitrator other than the arbitrator named in the agreement---Appellant could approach the already appointed arbitrator for redressal of his grievance and thereafter if there appeared any instance of biasness he could approach the Court for redressal of his grievance under relevant provisions of law---Appeal was dismissed, in circumstances.

Messrs Commodities Trading International Corporation v. Trading Corporation of Pakistan Ltd. and another 1987 CLC 2063; Messrs Allied Engineering Consultants (Pvt.) Ltd., Lahore v. Messrs Sui Gas Transmission Company Ltd. 1989 CLC 1143; Director Housing, A.G'S Branch, Rawalpindi v. Messrs Makhdum Consultants Engineers and Architects 1997 SCMR 988; Engr. Inam Ahmad Osmani v. Federation of Pakistan and others 2013 MLD 1132 and University of Engineering and Technology, Lahore and another v. Messrs Upright Engineers (Pvt.) Ltd. 2021 CLC 596 distinguished.

Messrs Hafiz Abdul Aziz Cotton Jinning Factory v. "Messrs Haji Ali Muhammad Abdullah & Co. and another PLD 1966 (W.P) Kar. 197; Saudi Pak Industrial and Agricultural Investment Company (Pvt.) Limited, Islamabad v. M/s Allied Bank of Pakistan and another PLD 2003 SC 215; Lahore Stock Exchange Limited v. Fredrick J. Whyte Group, Pakistan Ltd. and others PLD 1990 SC 48; M.A. Ghani Sufi & Sons v. Federation of Pakistan PLD 1957 (W.P) Lahore 363 and Pakistan Medical Commission (PMC) through Secretary (Successor of Registrar, PMDC), Islamabad Capital Territory v. Construction Experts (Pvt.) Limited through Chief Executive/Director, Islamabad and another PLD 2023 Isl. 01 rel.

(b) Interpretation of document---

----Documents or statutes are to be interpreted in their entire context following a full consideration of all provisions of the documents or statute, as the case may be---Every attempt must be made to save the document and for this purpose a difference between general statements and particular statements of the document should be differentiated properly to save the document rather to nullify it---No provision of the document should be read in isolation or in bits or pieces, but the entire document is to be read as a whole to gather the intention of the parties---Court for this purpose can resort to the correspondence exchange between the parties---Court should lean towards an interpretation, which effectuates rather than one which invalidates an instrument.

Saudi Pak Industrial and Agricultural Investment Company (Pvt.) Limited, Islamabad v. M/s Allied Bank of Pakistan and another" PLD 2003 SC 215 rel.

Zahid Saleem for Appellant.

Shahzada Muzaffar Ali with Sidra Azmat and Hanan Masood on behalf of LCB / Respondent.

2025 C L C 121

[Lahore]

Before Shahid Karim, J

NOORUDDIN FEERASTA and others---Petitioners

Versus

LAHORE DEVELOPMENT AUTHORITY (LDA) and others---Respondents

Writ Petition No.17085 of 2022, decided on 29th February, 2024.

(a) Lahore Development Authority Building and Zoning Regulations, 2019---

----Regln. 2.5---Right of way---Connotation---Right of way means width of street between two opposite property lines---It does not mean merely the road on which vehicles are intended to ply---It also includes footpaths for passengers and also green areas which are required to be maintained outside buildings by owners.

(b) Lahore Development Authority Building and Zoning Regulations, 2019---

----Regln. 10.3.3 (g)---Pakistan Environmental Protection Act (XXXIV of 1997), S. 12---Initial Environmental Examination (IEE) and Environmental Impact Assessment (EIA)---No Objection Certificate from Environmental Protection Agency---Petitioners were aggrieved of construction of a multi-storeyed Apartment Building by the respondent which required no objection certificate from Environmental Protection Agency---Validity---Decision to require EIA or IEE was for LDA to make and Regln. 10.3.3 of Lahore Development Authority Building and Zoning Regulations, 2019, did in fact require an EIA, but for this condition ('Condition')---Policy regarding Apartment Buildings could not be viewed in insolation and in the setting of one particular building only---Canvas had to be widened and entire array of building which were under construction and their impact on environment had to be at the heart of the policy---Such condition was a serious clog on such effort which had to be struck down---High Court directed Lahore Development Authority to issue revised edition of Lahore Development Authority Building and Zoning Regulations, 2019 by deleting such condition---High Court further directed that henceforth any construction of Apartment Building would require EIA and NOC from EPA---Constitutional petition was dismissed, in circumstances.

Standard Chartered Bank Limited through Constituted Attorney v. Karachi Municipal Corporation through Administrator and 9 others 2015 YLR 1303 rel.

Syed Ali Zafar, Jahanzeb Sukhaira, Talib Hussain, Asfand Waheed, Muhammad Adeel Chaudhry and Abdul Latif for Petitioners.

Muhammad Iftikhar ud Din Riaz, Ahmad Abdul Rehman and Muhammad Umer Rafiq for Respondent No.3.

Sahibzada Muzaffar Ali for Respondent-LDA.

Hassan Ijaz Cheema, A.A.G.

2025 C L C 140

[Lahore]

Before Shahid Bilal Hassan, J

ABDUL KARIM---Petitioner

Versus

Mst. RUQQIA BEGUM (Deceased) through L.Rs. and others---Respondents

Civil Revision No.77 of 2010, decided on 31st March, 2023.

(a) Qanun-e-Shahadat (10 of 1984)---

----Arts.79 & 129(g)---Gift made by attorney---Scope and proof---Document lacked clear clause for gifting suit property to the petitioner---Attorney cannot gift property without principal's intentions and directions to gift the property---Document was not proved as per the mandate of Art.79 of Qanun-e-Shahadat, 1984 as a second marginal witness was not brought into the witness box---Adverse presumption arises against petitioner as per the mandate of Art.129(g) of Qanun-e-Shahadat, 1984---Petitioner could not provide evidence of when, where and in whose presence donor made an offer to gift property in dispute---Necessary to plead and prove these ingredients, especially when other legal heirs are being deprived of inheritance rights in deceased's estate.

Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal Heirs and others PLD 1985 SC 341; Mst. Naila Kausar and another v. Sardar Muhammad Bakhsh and others 2016 SCMR 1781; Faqir Ali and others v. Sakina Bibi and others PLD 2022 SC 85 and Fareed and others v. Muhammad Tufail and another 2018 SCMR 139 ref.

(b) Punjab Land Revenue Act (XVII of 1967)---

----S.42---Mutation---Scope and effect---Mutation per se is not a deed of title and is merely indicative of some previous oral transaction between the parties; so, whenever any mutation is challenged burden squarely lies upon the beneficiary of such mutation to prove not only the mutation but also the original transaction.

(c) Appeal---

----Judgment of Trial Court and Appellate Court---Inconsistency in findings---Principle---In case of such inconsistency findings of Appellate Court must be given preference in the absence of any cogent reason to the contrary.

Muhammad Shahzad Shaukat and Taha Shaukat for Petitioner.

Malik Noor Muhammad Awan, Ejaz Khalid Khan and Saima Hanif for Respondents Nos.1 to 3.

Shahzad Mahmood Butt for Respondent No.4(a).

Mirza Hafeez ur Rehman and Mian Ejaz Latif for Respondents Nos.4(c to e).

Muhammad Mahmood Chaudhry and Muhammad Zeeshan for Respondent No.4(ii).

Azmat Ullah Chaudhry for Respondent No.4(vi to viii).

2025 C L C 168

[Lahore (Rawalpindi Bench)]

Before Muhammad Sajid Mehmood Sethi, J

Syed MONIS RAZA and 3 others---Petitioners

Versus

Mst. ASIA BANO and others---Respondents

Civil Revision No.314-D of 2015, decided on 4th September, 2024.

Contract Act (IX of 1872)---

----Ss.202 & 206---Specific Relief Act (I of 1877), Ss. 8, 39, 42 & 54---Suit for declaration, possession and cancellation of mutation with mandatory injunction---Power of attorney, revocation of---Burden of proof---Predecessors of petitioners not challenging the mutation in his life time---Delay in challenging the mutation by the petitioners despite having knowledge---Locus standi of petitioners---Application of principles of waiver, estoppel and acquiescence---Contention of the petitioners was that since the power of attorney executed by their predecessor in favour of respondent had been revoked, therefore, disputed mutation could not have been executed by the respondent in favour of her husband---Validity---Petitioners were under legal burden to prove valid execution of revocation deed by producing confidence inspiring oral evidence, however, such course of action was not adopted, which was fatal to their stance---Under S.202 read with S.206 of the Contract Act, 1872, the principal is duty bound to give notice to the agent before cancellation of the power of attorney---Power of attorney could only be rescinded after serving a notice upon the attorney any revocation without notice to the attorney would be illegal--Disputed mutation was attested in the year 2001 and PW.2 during his cross-examination conceded that predecessor of petitioners was well aware of the disputed mutation and petitioners got knowledge of the same immediately after its execution, however, neither predecessor of petitioners nor petitioners themselves agitated the same and the suit was filed in the year 2009 i.e. after 08 years without any explanation for their inaction to do the needful, which created certain rights in favour of respondent, thus, petitioners had no locus standi to challenge the disputed mutation independently, for the reason that their predecessor himself had not challenged the same during his lifetime---Inaction on part of petitioners also invited applicability of the principles of waiver, estoppel and acquiescence---Implied consent in accepting the mutation in question constituted abandonment of rights on account of failure to enforce it---Agent can claim ownership rights in land of the principal for himself or for his own kith and kin on the basis of agency document with the approval of principal, failing which principal is at liberty to repudiate the transaction---Such course was not adopted by the principal/predecessor of petitioners despite having knowledge of the disputed mutation, thus, the plea of the petitioner was repelled by High Court---Revision petition was dismissed, in circumstances.

Fida Muhammad v. Pir Muhammad Khan (Deceased) through legal heirs and others PLD 1985 SC 341; Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818; Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811; Muhammad Yasin and another v. Dost Muhammad through Legal Heirs and another PLD 2002 SC 71; Mst. Ghulam Fatima v. Muhammad Din and others 2004 SCMR 618; Ghulam Muhammad v. Zohran Bibi and others 2021 SCMR 19; Atta Muhammad and others v. Mst. Munir Sultan (Deceased) through her LRs and others 2021 SCMR 73 and Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others PLD 2021 SC 715 ref.

Raza Munir and another v. Mst. Sardar Bibi and 3 others 2005 SCMR 1315; Jamila Khatoon and others v. Aish Muhammad and others 2011 SCMR 222; Fayyaz-ul-Haq and others v. Ghulam Nabi (Deceased) through his legal heirs and others 2022 MLD 688; Abdul Haq and another v. Mst. Surrya Begum and others 2002 SCMR 1330; Nazar Gul v. Islam and 3 others 1998 SCMR 1223; Muhammad Rustam and another v. Mst. Makhan Jan and others 2013 SCMR 299; Agha Syed Mushtaque Ali Shah v. Mst. Bibi Gul Jan and others 2016 SCMR 910; Anjum Mahmood and 5 others v. Rizwan Ahmad and 7 others 2006 CLC 876; Shero v. Muhammad Ramzan and 2 others 2006 YLR 2632 and Muhammad Arshad and 2 others v. Haq Nawaz and 9 others 2019 YLR 958 rel.

Syed Kazim Raza Naqvi for Petitioners.

Dr. Muhammad Aslam Khakhi and Yasmin Haider for Respondents.

Imran Shaukat Rao, Assistant Advocate General.

2025 C L C 177

[Lahore]

Before Safdar Saleem Shahid, J

Mst. SHAHIDA PARVEEN and others---Petitioners

Versus

MUHAMMAD AKRAM BAIG---Respondent

Civil Revision No.2335 of 2016, heard on 4th May, 2023.

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

----O.XLI, R. 27 & O.VII, R.14---Production of additional evidence in appeal---Filing of application at belated stage---Contention of--- Legal notices sought to be brought on record through additional evidence were duly mentioned in the list of reliance filed under O. VII, R. 14, C.P.C. and same were found helpful by the court for a just decision of the case.

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

----O.XLI, Rr.23, 23-A & O.XLII, R.1---Remand---Appeals from original decree---Case remanded by Appellate Court---Precondition---- Case is remanded when a decree is reversed in appeal and a re-trial is considered necessary.

Abdul Majid v. Syed Muhammad Ali Shamim and 10 others 2000 SCMR 1391 ref.

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

----O. XLI, Rr.27 & 28---Production of additional evidence in Appellate Court---Mode of taking---As per O.XLI, R.28, C.P.C., the appellate court is required to decide the application for adducing additional evidence itself and has to give the reasons for allowing such an application within the parameters of R. 27---In case the application is allowed, then the appellate court may record the additional evidence itself or direct the Trial Court to record such evidence and remit the same to the appellate Court---Effect of additional evidence is to be considered by the Appellate Court and not by the Court whose decree is under appeal.

Muhammad Siddique v. Gul Nawaz and others 2021 SCMR 1480 and Khalid Ibrahim through L.Rs. and others v. Chaudhry Mazhar Hussain and others 2015 CLC 761 ref.

Shahid Mehmood Minhas for Petitioners.

Ch. Muhammad Rafique for Respondent.

2025 C L C 196

[Lahore]

Before Shahid Bilal Hassan and Rasaal Hasan Syed, JJ

GHULAM HASSAN and others---Appellants

Versus

IJAZ NASEER and others---Respondents

R.F.As. Nos.67289 and 74715 of 2019, decided on 31st May, 2023.

(a) Specific Relief Act (I of 1877)---

----Ss. 21 & 22---Qanun-e-Shahadat (10 of 1984), Arts. 102 & 103---Specific performance of agreement to sell, refusal of---Discretion---Documentary and oral evidence---Effect---Appellants / defendants were aggrieved of judgment and decree passed by Trial Court in favour of respondent / plaintiff---Validity---Neither in plaint nor in agreement between parties there was any reference of previous litigation or plea of execution of agreement after such litigation or settlement of issue nor was the property described with reference to any previous litigation---In absence of foundation in plaint of facts pertaining to previous litigation and also particulars of revenue record and that of Excise and Taxation Department, with reference to such previous litigation either in agreement or in plaint, any evidence produced by respondent / plaintiff for such fact was inadmissible---Such important aspects of the matter and deficiency in agreement were ignored by Trial Court which had serious reflection on the fate of the claim under adjudication---Plea of oral agreement as to alleged commercialization of property or commitment to allow adjustment of commercialization expenses from sale consideration was not part of agreement, therefore, was inadmissible---Respondent / plaintiff did not prove that he had funds to pay balance consideration as relevant statement of accounts were not produced and only account statement pertaining to earnest money was produced---Respondent / plaintiff did not even tender amount in Court nor ever attempted to deposit balance consideration till passing of decree---Respondent / plaintiff's intention was visible and he had not proved his readiness and willingness to perform the contract by paying balance consideration, therefore, relief of specific performance could not be granted---High Court dismissed suit filed by respondent / plaintiff and set aside judgment and decree passed by Trial Court---Appeal was allowed, in circumstances.

Fida Hussain v. Jalal Khan 2002 CLC 1339; Muhammad Miskeen v. District Judge Attack and others 2020 SCMR 406; Mst. Jannat Bibi v. Sher Muhammad and others 1988 SCMR 1696; Sinaullah and others v. Muhammad Rafique and others 2005 SCMR 1408; Muhammad Hanif v. Abdus Samad and others PLD 2009 SC 751; Muhammad Ali through L.Rs. and others v. Manzoor Ahmad 2008 SCMR 1031; Abdul Hamid v. Abbas Bhai-Abdul Hussain PLD 1959 (W.P.) Kar. 629; Nazar Hussain and another v. Syed lqbal Ahmad Qadri (deceased) through his L.Rs. and another 2022 SCMR 1216 and Mst. Noor Jehan and others v. Saleem Shahadat 2022 SCMR 918 ref.

(b) Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance of agreement to sell---Principle---From the date of agreement till filing of suit and thereafter, buyer has to prove his readiness and willingness to perform the agreement.

Zubda-tul-Hussain, Irfan Ghaus Ghumman, Mian Ejaz Latif and Nusrat Ali Joyia for Appellant.

Tallat Farooq Sheikh, Maqbool Hussain Shaikh, Tahir Pervaiz, Shahrukh Sharif and Ahmad Ashfaq Sheikh for Respondents.

2025 C L C 209

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

Dr. SHAHIDA MANSOOR ---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Defence and 3 others ---Respondents

Writ Petition No. 98 of 2014, decided on 30th October, 2024.

Cantonment Land Administration Rules, 1937---

----Sched.IX-A, Cls. 2 & 3(h)---Cantonment land---Evacuee property---Lease hold rights---Conversion of status---Rate of premium chargeable for conversion of residential property to commercial property---Determination---Petitioner successively applied for sanction of conversion of residential property into commercial property as a clinic---Competent authority conveyed requisite sanction on the application filed by the petitioner in 2011 subject to deposit of premium at the rates of prevalent policy instead of the rate of the previous policy prevalent at the time of filing of first application of petitioner in 1983---Validity---Government of Pakistan, Ministry of Defence, in terms of power conferred under the Cantonment Land Administration Rules, 1937, (Rules) issued policies from time to time for conversion of properties held on old grant/cantonment code leases into regular leases, including conversion/change of purpose of regular leases into fresh leases, thus, previously policy was introduced in 1996, which was then superseded by another policy in 2007 and at the time of moving of application in 2011 later Policy of 2007 was in vogue so the case of the petitioner was considered thereunder---In terms of that policy leases for Hospitals, Educational/Training Institutions (including Hostel facilities), Museums and Libraries were to be executed under Sched-IX-A of the Rules for perpetuity---After rejection of previous application the petitioner instead of challenging the orders of rejection opted to apply afresh in 2011, so her case being not pending clearly fell under the Policy-2007, thus, petitioner was precluded to claim the benefits of previous policy---Constitution petition was dismissed in limine, in circumstances.

Constitutional Petitions Nos. D-2314 and 2315 of 2008 Disting.

Mst. Saeeda Bano Siddiqui v. Cantonment Executive Officer Cantonment Board Malir Karachi 2018 SCMR 1616 Rel.

Abdul Rasheed Awan for Petitioner.

2025 C L C 228

[Lahore]

Before Sultan Tanvir Ahmad, J

MUHAMMAD KHAN deceased through L.Rs. ---Petitioner

Versus

MUHAMMAD AKRAM ---Respondent

Civil Revision No. 1750 of 2015, heard on 9th October, 2024.

(a) Specific Relief Act (I of 1877)---

----Ss.42, 39---Civil Procedure Code (V of 1908), O.VI, R.4---Suit for declaration and cancellation of mutation---Sale mutation---Proof---Non-mentioning of particular/details of fraud---Admission as to execution of mutation---Discrepancy in evidence as to accrual of cause of action---Absence of prosecution witnesses at the time of proceedings of mutation---Predecessor-in-interest of petitioners/plaintiff had never denied the execution of mutation passed on his statement and in the presence of those who had signed the mutation---Consideration was paid for the total property, which was subject matter of the mutation---PW.1 deposed that he gained the knowledge about eight years after the mutation---PW.1 and PW.2 in their examination-in-chief did not state particular manners and mode of fraud and in their cross-examination they admitted that they were not present at the time of proceedings of mutation, thus, most part of their statements were comprised of hearsay evidence---There was discrepancy about the period of accrual of cause of action in the statement of PW.2 and in the plaint---Civil revision was dismissed, in circumstances.

(b) Qanun-e-Shahadat (10 of 1984)---

----Arts.49, 70, 72, 91, 92 129---Mutation---Onus to proof---Oral and documentary evidence---Preference---Scope---Presumption of genuineness attached to documentary evidence---Scope---Once a document has been proved in accordance with law, the genuineness of its contents could be presumed and the rule that the "document speaks for itself' (acta probant sese ipsa) could be deployed---Rationale behind the presumptions attached to written documents stem out of both principles as well as policy---Presumptions are a matter of principle because written documents are, by their very nature, to be accorded a higher degree of credibility as opposed to oral evidence; otherwise, it would bring uncertainty and chaos if written documents (and valuable rights, if any, attached to them) are allowed to be set aside on the basis of oral evidence.

Muhammad Mumtaz Shah (deceased) through LRs. and others v. Ghulam Hussain Shah (deceased) through LRs. and others 2023 SCMR 1155 rel.

(c) Qanun-e-Shahadat (10 of 1984)---

----Arts. 17, 72 81---Punjab Land Revenue Act (XVII of 1967), S.42(7)---Transfer of Property Act (V of 1882), S.54---Mutation---Proof---Execution of mutation not denied by its executant ---Requirement of production of attesting witnesses of mutation---Scope---Execution of the mutation was not denied by the plaintiff/executant himself, thus, examination of attesting witness was not fatal---Best evidence about the contents of a document is the document itself.

Muhammad Afzal (Decd.) through LRs. and others v. Muhammad Bashir and anothers 2020 SCMR 197; Abdul Aziz v. Abdul Hameed (deceased) through LRs. 2022 SCMR 842 and Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1 rel.

Ch. Muhammad Rafique Warraich for Petitioner.

Ch. Irshad Ullah Chattha for Respondent.

2025 C L C 243

[Lahore]

Before Shujaat Ali Khan, J

MUHAMMAD WILAYAT KHAN ---Petitioner

Versus

ISMAIL KHAN and 4 others ---Respondents

Writ Petition No. 9346 of 2024, decided on 19th February, 2024.

(a) Punjab Consolidation of Holdings Ordinance (VI of 1960)---

----Ss.11 & 13---Constitution of Pakistan, Art. 199---Constitutional petition---Consolidation of land---Alternate and efficacious remedy, non-availing of---Petitioner assailed allotment of land in favour of private persons as a result of consolidation proceedings conducted in year 1984-85---Validity---Any aggrieved person could challenge under S.11 of Punjab Consolidation of Holdings Ordinance, 1961, an order of Consolidation Officer confirming the scheme within sixty days before Collector and second appeal laid before Commissioner---Board of Revenue under S.13 of Punjab Consolidation of Holdings Ordinance, 1960 was empowered to call for and examine record of proceedings at any time suo motu or on application of aggrieved person---High Court declined to interfere in order of Consolidation Officer, as petitioner did not avail any of such remedies---Constitutional petition was dismissed, in circumstances.

(b) Jurisdiction---

----Consent of parties---Scope---When a forum has not been blessed with jurisdiction to hear a matter, same cannot be bestowed even with the consent of opponent side.

Karachi Dock Labour, Labour Board v. Messrs Quality Builders Ltd. PLD 2016 SC 121 rel.

Zafar Iqbal Chohan for Petitioner.

2025 C L C 259

[Lahore]

Before Ahmed Nadeem Arshad, J

AHMED YAR and others ---Petitioners

Versus

CHAN PIR SHAH and others ---Respondents

Civil Revision No. 1415 of 2011, heard on 5th September, 2024.

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss.3, 13 & 14---Qanun-e-Shahadat (10 of 1984), Art.71---Civil Procedure Code (V of 1908), O.XXXII---Suit for possession through pre-emption---Talbs made by brother of minor plaintiff/shafi without being appointed as legal guardian---Legality---Right of pre-emption is a property based right, thus, the legal guardian of the property of the minor can be the only person, who can decide the exercise of this right and not the "next friend" as identified in O.XXXII of CPC---Father of minor pre-emptor being legal guardian was obliged by law to perform all the Talbs under S.13 of the Act---Suit was also to be instituted by the person, who made any demand---Plaint as well as notice of Talb-i-Ishhad was silent with regard to performance of Talb-i-Muwathibat and Talb-i-Ishhad on behalf of the minor and no evidence was produced in that regard---Brother of plaintiff had no authority to perform Talb-i-Muwathibat, Talb-i-Ishhad and Talb-i- Khusumat on behalf of his minor brother (one of the plaintiffs), meaning thereby that neither any Talbs were performed on behalf of the minor nor suit was instituted on his behalf---Demand made by father or a brother of the pre-emptor is not sufficient, even if he has a right to pre-empt, unless he has been previously authorized to make the demand---Civil revision was allowed, in circumstances.

(b) Punjab Pre-emption Act (IX of 1991)---

----Ss.5 & 33---Suit for possession through pre-emption---Actual sale price of suit land----Proof---Unsubstantiated statement by pre-emptor---Contravention of Shariah---Disentitlement to claim of pre-emption---Respondent intentionally mentioned a lower price of the suit property in order to obtain an undue advantage and when an undue advantage is sought to be gained on the basis of a completely unsubstantiated statement, the same is not permissible as it can contravene the provisions of Shari'ah which have been made specifically applicable to pre-emption cases and it would disentitle a Shafi to claim pre-emption---Civil revision was allowed, in circumstances.

Subhanuddin and others v. Pir Ghulam PLD 2015 SC 69 rel.

(c) Punjab Pre-emption Act (IX of 1991)---

----S.13---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 129(g)---Suit for pre-emption---Out of seven only one pre-emptor appearing as a witness before the Trial Court to substantiate his claim---Effect---There is no specific provision either in the C.P.C. or Qanun-e-Shahadat, 1984 (QSO), requiring personal appearance of all the plaintiffs, however, where a "fact" is required to be proved through oral evidence, such evidence must be direct and of the primary source---Article 71 of the QSO provides the instances of the direct oral evidence regarding the proof of a fact---Foundation of direct evidence about the proof of the "fact" of Talb-i-Muwathibat, is the "person", who has made the Talb and it is he, who should appear enabling himself for the cross-examination of the other side---Article 129(g) of QSO enables the court to draw adverse inference in the eventuality of withholding the best evidence---Non-appearance of a party as his own witness, ordinarily discredits his case---Where the fact is in the personal knowledge of a person himself and he is the primary source to prove the "fact", if such person, without any sufficient cause, abstains from appearance in the court, the requisite inference shall be drawn---Civil revision was allowed, in circumstances.

Abdul Qayyum v. Muhammad Sadiq 2007 SCMR 957 and Dilshad Begum v. Mst. Nisar Akhtar 2012 SCMR 1106 rel.

(d) Punjab Pre-emption Act (IX of 1991)---

----S. 13(2)---Talb-i-Muwathibat---Burden of Proof---Person conveying sale/informer not produced as witness---Effect---Respondent failed to produce the informer from whom they got information about the sale transaction--- Production of informer in pre-emption cases is imperative for the pre-emptor to prove the fulfilment of first demand of Talb-i-Muwathibat, whose deposition being a star witness is considered to be relevant having direct bearing qua the proof of said fact---Informer is the person who sets off the events leading to the institution of a suit for pre-emption, and if he is not examined or he refuses to enter in the witness box, the inescapable conclusion would be that he is not willing and ready to support the assertions made by the plaintiffs---Civil revision was allowed, in circumstances.

Muhammad Mal Khan v. Allah Yar Khan 2002 SCMR 235 and Abdul Rehman v. Haji Ghazan Khan 2007 SCMR 1491 rel.

(e) Punjab Pre-emption Act (IX of 1991)---

----S.13(1)(a)---Talb-i-muwathibat---Proof---Complete chain of source of information---Chain of the source of information, as to the fact of sale, from the very first person, who has the direct knowledge thereof and passes on the same to the person who lastly informs the pre-emptor, must be complete---Only the complete chain of the source of information of the sale can establish the essential elements of Talb-i-Muwathibat, which are: (i) the time, date and place when the pre-emptor obtained the first information of the sale, and; (ii) the immediate declaration of his intention by the pre-emptor to exercise his right of pre-emption, then and there, on obtaining such information---Respondents failed to prove the performance of requisite Talbs as prescribed under the law and there were material discrepancies in the evidence of their witnesses---Civil revision was allowed and suit for pre-emption was dismissed, in circumstances.

Farid Ullah Khan v. Irfan Ullah Khan 2022 SCMR 1231 and Muhammad Riaz v. Muhammad Akram and others 2024 SCMR 692 rel.

Ch. M. Lehrasib Khan and Muhammad Zaman Mangat for Petitioners.

Respondents: Exparte (8.2.2021)

2025 C L C 280

[Lahore]

Before Shahid Karim, J

HAROON FAROOQ ---Petitioner

Versus

GOVERNMENT OF THE PUNJAB and others ---Respondents

Case No.227807 of 2018, decided on 29th December, 2023.

Constitution of Pakistan---

----Art.199(1)(a)(i) & (ii)---Supervisory jurisdiction of High Court---Scope---Climate justice----Writ of mandamus for enforcement of climate justice---Judicial review---Scope---Elimination of climate chaos and enforcement of climate justice by the Water and Environment Commission appointed by High Court to compel implementation of actions taken for water reservation and environmental issues in Punjab particularly in Lahore---High Court exercised its ssupervisory jurisdiction with strong commitment of environmental protection and sustainable development by way of proactive measures and enforcement of strict regulations---Substantial and practical steps had been taken to control air pollution and to preserve groundwater---During the winter season those steps largely contributed to lowering Air Quality Index at different places in Lahore and thereby smog was controlled which had initially assumed dangerous proportions---This was an illustration of judicial review in action, and enforcement of climate justice---These actions were beyond mere judgments which adorn law journals and fail to address in actual terms, the climate chaos, which surrounds the inhabitants---In essence, it was a case of continuing mandamus or supervisory jurisdiction where orders of High Court were enforced by a Commission set up to compel implementation---Departments in turn, came back with reports of compliance and further orders were issued for complete climate justice and to protect fundamental rights of persons---Unique tool was employed by High Court which had yielded substantial results and same would not have been possible without the selfless and untiring efforts of the members of the Commission, who had devoted their energies to the monumental task---Counsel of different Departments and Regulatory Authorities had also come on board as friends of the Court and environment to lend a hand in the enterprise---Constitutional petition was adjourned for further proceedings, accordingly.

Mrs. Hina Hafeez Ullah Ishaq, Sayed Kamal Ali Haider and Ch. Zulfiqar Ali, Members Judicial Commission.

Faiz Ullah Khan Niazi, for counsel for the Petitioner.

M. Azhar Siddique, Talaat Farooq Sh. and M. Yasin Hatif, for the Petitioners (in connected petitions)

Shazib Masood, for counsel for CBD.

Sahibzada Muzaffar Ali and Abdul Hanan, for Lahore Development Authority.

Haris Azmat and Maryam Hayat Advocates for respondent-PHA.

Mian Irfan Akram and Mohsin Mumtaz, for WASA.

Dilnawaz Ahmad Cheema, Mian Ejaz Latif, Rana M. Afzal Razzaq Khan, Ghulam Abbas Haral, Umar Rafiq, Abdul Latif, M. Adeel Ch., Qari Zuhaib ur Rehman Zubairi and Mian M. Waseem, for the Applicants.

Asad Ali Bajwa, Deputy Attorney General.

Hassan Ejaz Cheema, Assistant Advocate General, M. Nawaz Manik, Director Law, EPA, Touqeer M. Wattoo, Director (Coord.) PDMA, Shahzad Khan, DSP Traffic, Umer Hayat, Law Officer and Ghulam Akhtar, Law Officer.

Irfan Sana Ullah Khan Kakar, (in C.M No.74 of 2023).

2025 C L C 306

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

MANZOOR ELAHI ---Petitioner

Versus

REHMAT ALI ---Respondent

Civil Revision No. 530 of 2023, heard on 18th September, 2024.

(a) Specific Relief Act (I of 1877)---

----Ss. 8, 42---Civil Procedure Code (V of 1908), O.VII, R.11 & O.XIV, R.2---Suit for declaration and recovery of possession---Decision on issues of law and facts---Scope---Legal issue remaining undecided being not pressed by the parties---Legality---Contention of the petitioner was that at preliminary stage although an objection as to maintainability of the suit being barred by law, limitation and jurisdiction was raised and an issue to that effect had also been framed, yet the same remained unattended being not pressed by the petitioner---Validity---Petitioner agitated in the written statement that the suit of respondent/plaintiff was liable to be dismissed being barred by law, thus, Trial Court framed Issue No.4 in that respect in order to enable the parties, particularly petitioner, to put forth the available evidence---Although questions of limitation and maintainability were covered in Issue No.4, yet Trial Court while deciding the same simply said that "this issue is neither pressed nor argued by learned counsel for the defendant."---Petitioner did not produce any evidence on this issue, however, as the issue was based on a question of law, the Trial Court was duty bound to examine and decide it in light of the law and the judgments of the superior Courts---Trial Court committed a legal error by deciding this significant issue in a few words, which was impermissible in the eyes of the law---Civil revision was allowed, in circumstances.

Muhammad Chuttal v. Ata Muhammad through L.Rs 2007 SCMR 373 and Fancy Foundation v. Commissioner of Income Tax, Karachi 2017 PTD 1687 rel.

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

----O.XIV, R.2---Issues of law---Framing of---Scope---Issues of law which go to the root of the whole case and are capable to be decided without evidence, the Court should decide such issue first---If issues are not framed but allegations are made in the plaint and they are rebutted in the written statement, it is open to the Court to allow the parties to lead evidence on such point and to give decision on it without framing any issue---It is the discretion of the Trial Court to frame and decide the legal issue first or together with the issues pertaining to factual controversy

The Province of East Pakistan v. Hassan Askary PLD 1971 SC 82 and Messrs Zarkhaiz Agro Engineering and Services (Pvt.) Ltd. v. Messrs Sargodha Farms Aids (Pvt.) Ltd. 2005 YLR 200 rel.

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

----O.VII, R.11---Rejection of plaint---Limitation---Issue, framing of---Limitation is also one of the grounds, which may bar filing of suit after lapse of the provided time---There is no express direction of law to frame a specific issue in respect of limitation, provided an issue in respect of O.VII, R.11, C.P.C., is framed since it not only covers barring of the suit by any law under Clause (d) rather it covers Clauses (a), (b) and (c) of O.VII, R.11, C.P.C. as well.

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

----O.VII, R.11---"Barred by law"---Word "law"---Meaning---"Law" means written law or statute law and is used in generic sense---Law includes Constitution, statutes, judicial principles, rules, by-laws, etc., which squarely fall within the ambit of Clause (d) of R. 11 of O.VII, C.P.C.

Malik Khurram Shehzad and Arshad Mahmood for Petitioner.

Tariq Mehmood Khan for Respondent.

2025 C L C 323

[Lahore]

Before Shahid Bilal Hassan and Masud Abid Naqvi, JJ

ABDUL RAHMAN and others ---Appellants

Versus

MUHAMMAD FAROOQ and others ---Respondents

R.F.A. No.14953 of 2022, heard on 20th February, 2024.

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

----O. XIV, R. 1, O. XV, R. 1, O. XVIII, R. 2, O. XX, R. 5 & O.XLI, R. 31--- Issues, framing of---Object, purpose and scope---Main object of framing of issues is to ascertain the real dispute between parties by narrowing down area of conflict and determine where parties differ---Obligation is cast on Court to read plaint and written statement and then determine with assistance of counsel for parties, material propositions of fact or of law on which parties are at variance---Issue is formed on which decision of case depends---Object of an "issue" is to tie down evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is---Judgment then proceeding issue-wise is able to tell precisely how the dispute was decided---It is duty of Court to frame issues from material propositions---To frame issues, Court is to find out questions of fact, questions of law and mixed questions of fact and law from pleading of parties and other materials, which are produced with the pleadings---Parties are to produce their evidence to prove or disprove framed issues.

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

----O. XIV, R. 5---Amendment of issues---Stage---Court at any time before passing of decree, can amend framed issues on those terms, which it thinks fit---Such amendment of framed issues should be necessary for determination of matters in controversy between the parties.

(c) Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O. XIV, R. 1---Suit for declaration and recovery of mesne profits---Failure to frame proper issues---Suit filed by appellants/plaintiffs for declaration and recovery of mesne profits was dismissed by Trial Court---Validity---Issues were not according to pleadings of parties---Trial Court was not acquainted with the real myth of framing of issues---Parties had to lead evidence keeping in mind burden of proof placed upon their shoulders while formulating issues---Issues framed by Trial Court did not cover real controversy and provisions of O. XIV, R. 1, C.P.C. had been defiled---High Court set aside judgment and decree handed down by Trial Court and case was remanded for decision afresh after reframing issues---Appeal was allowed accordingly.

Muhammad Yousaf and others v. Haji Murad Muhammad and others PLD 2003 SC 184 and Mst. Rasheeda Bibi and others v. Mukhtar Ahmad and others PLJ 2010 SC 530 rel.

Syed Muhammad Usman Tirmizi for Petitioners.

Asif Siddique Chaudhary for Respondents.

2025 C L C 344

[Lahore]

Before Ch. Muhammad Iqbal, J

MUHAMMAD ARSHAD (deceased) through Legal Heirs ---Petitioner

Versus

Haji ABDUL GHAFOOR and others ---Respondents

C.R. No. 48464 of 2019, heard on 25th November, 2024.

Civil Procedure Code ( V of 1908)---

----Ss. 47 & 48 ---Limitation Act (IX of 1908) First Sched., Art. 181---Specific Relief Act (I of 1877), S. 12---Decree of specific performance---Second execution petition---Limitation---Scope---Executing Court dismissed the objection petition of the respondents, however, the same was accepted by the District (First Appellate) Court and execution petition, being second one, filed by the petitioners/decree-holders was dismissed declaring the same barred by limitation---Plea of the judgment-debtor (objection petitioner/respondent) was that earlier decree-holder filed execution petition which was dismissed for non-prosecution, then second execution petition was filed beyond limitation prescribed by law---Validity---Admittedly, suit for specific performance of the petitioners (decree-holders/plaintiffs) was decreed on 22.12.1999 and they filed execution petition on 13.01.2000 for satisfaction of said judgment and decree which petition was dismissed due to non-prosecution on 26.04.2002---However, record revealed that, against the original judgment and decree, the respondents (defendants/judgment debtors) preferred first appeal which was dismissed by the District (First Appellate) Court on 25.05.2009 and their Regular Second Appeal was dismissed on 05.10.2009, which was not further challenged by the respondent---It was after the dismissal of the appeal of the respondents by the District(first Appellate) Court ( on 25.05.2009 ) that the petitioner/ decree-holder promptly filed second execution petition on 05.06.2009 for execution of decree (dated 22.12.1999)---Under Article 181 of the Limitation Act, 1908, the period provided for first execution petition was three years from passing of the decree and under S. 48, C.P.C, the second execution petition had to be filed within 6 years of the judgment and decree---If the decree has been challenged before the higher forum and stay is granted, then filing of execution petition subsequently cannot be held to be barred by time---Thus, in the present case, execution petition of the petitioners was well within time---High Court set-aside the impugned judgment passed by the District Court; consequently, the order passed by the Civil/Executing Court was upheld---Revision was allowed, in circumstances.

Anjuman Ghulaman Mustafa v. Darul Islamia Society and others PLD 2024 SC 489; F.A. Khan v. The Government of Pakistan PLD 1964 SC 520; Mahboob Khan v. Hassan Khan Durrani PLD 1990 SC 778; Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241 and Nazim-ud-Din and others v. Sheikh Zia-Ul-Qamar and others 2016 SCMR 24 ref.

Usman Nasir Awan, for Petitioner.

Ch. Ali Muhammad, for Respondents.

2025 C L C 352

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

Mst. QAMAR BIBI through LRs, and others ---Petitioners

Versus

SHAHAB-UD-DIN and others ---Respondents

C.Rs. Nos. 233690 and 222680 of 2018, decided on 25th March, 2024.

(a) Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance of agreement to sell---Balance sale consideration, non-deposit of---Effect---Petitioner/defendant assailed judgment and decree passed by Lower Appellate Court in favour of respondent/plaintiff, decreeing his case despite non-deposit of balance sale consideration in Court---Validity---Where vendor refuses to accept sale consideration amount, vendee seeking specific performance of agreement to sell is essentially required to deposit the amount in Court, which demonstrates his/her capability, readiness and willingness to perform the obligation---Such elements were missing in the present case and failure on the part of respondent/plaintiff to meet the essential requirement had disentitled him from relief of specific performance---High Court in exercise of revisional jurisdiction set aside judgment and decree passed by Lower Appellate Court and restored that of Trial Court---Revision petition was allowed in circumstances.

Abdul Karim v. Haji Noor Badshah 2012 SCMR 212; Mst. Sardar Begum and 5 others v. Muhammad Ilyas and another 2013 CLC 1013; Miran Bakhsh through L.Rs. and 6 others v. Ali Muhammad 2013 MLD 142; Muhammad Bakhash and 2 others v. Inayat Bi and 13 others 2021 YLR 1562 and Iftikhar Ali and others v. Riaz-ul-Haq alias Riaz Ahmed and others 2023 YLR 854 dist.

Muhammad Yousaf v. Allah Ditta and others 2021 SCMR 1241; Masood Ahmad Bhatti and another v. Khan Badshah and another 2024 SCMR 168; Muhammad Asif Awan v. Dawood Khan and others 2021 SCMR 1270; Muhammad Aslam and others v. Muhammad Anwar 2023 SCMR 1371 and Muhammad Ramzan v. Muhammad Ali and 13 others 2016 MLD 1255 rel.

(b) Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement to sell---Balance sale consideration, deposit of---Object, purpose and scope---There is no provision in Specific Relief Act, 1877, which casts any duty on Court or requires vendee to first deposit balance sale consideration upon filing of suit seeking specific performance of agreement in respect of an immovable property---Relief of specific performance is discretionary and based on principles of equity, thus, it cannot be claimed as a matter of right---Court in order to ensure bona fide of vendee at any stage of proceedings may put him to terms.

(c) Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement to sell---Balance sale consideration, deposit of---Duty of Court---Scope---In a suit for specific performance of land, if seller/vendor has refused to receive sale consideration, or any part thereof, it should be deposited in Court and invested in some government protected security (such as Defence or National Savings Certificates)---In case suit is decreed, the seller would receive value of money which prevailed at the time of the contract and in case buyer loses he can similarly retrieve deposited amount.

(d) Qanun-e-Shahadat (10 of 1984)---

----Art. 17---Attesting of document---Number of witnesses---Scribe, status of---Scope---Words "two attesting witnesses at least" show that calling two attesting witnesses for the purpose of proving its execution is a bare minimum---Nothing short of two attesting witnesses, if alive and capable of giving evidence, can even be imagined for proving execution of such document---Construing requirement of Art. 17 of Qanun-e-Shahadat 1984, as being procedural rather than substantive and equating testimony of a scribe with that of an attesting witness would not only defeat letter and spirit of the said Article but reduce the whole exercise of re- enacting it to a farce---Scribe of a document can only be a competent witness if he has fixed his signature as an attesting witness of the document and not otherwise--- Signing of document by scribe in the capacity of a writer does not fulfil and meet mandatory requirement of attestation by him separately, however, scribe may be examined by concerned party for corroboration of evidence of marginal witnesses, or in the eventuality those are conceived by Art. 79 of Qanun-e-Shahadat, 1984 itself not as a substitute---Purpose and object of attestation of a document by a certain number of witnesses and its proof through them is also meant to eliminate possibility of fraud and purported attempt to create and fabricate false evidence for the proof thereof---Legislature in its wisdom has established a class of documents which are specified, in Art. 17 of Qanun-e-Shahadat, 1984.

Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others PLD 2011 SC 241; Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187; Farid Bakhsh v. Jind Wadda and others 2015 SCMR 1044; Sheikh Muhammad Muneer v. Mst. Feezan PLD 2021 SC 538 and Muhammad Ghaffar (Deceased) through LRs and others v. Arif Muhammad 2023 SCMR 344 rel.

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

----O.XLI, R. 31---Judgment by Appellate Court---Points for determination---Issue wise findings---Scope---Judgment should discuss and cover all substantial points involved in the case and also should reflect that Court has scanned and examined material available on record minutely as well as evidence adduced by parties supported with relevant documents pragmatically---Compliance of O. XLI R. 31 C.P.C. is mandatory in its nature and Appellate Court cannot evade such provisions by taking divergent view on erroneous surmises and conjectural presumptions.

Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494; Province of the Punjab through Collector District Khushab, Jauharabad and others v. Haji Yaqoob Khan and others 2007 SCMR 554; Minhaj-ul-Islam Sabri through General Attorney v. Soofia Munir and 7 others 2006 CLC 1352; Mst. Sikandar Jahan and 4 others v. Mst. Ghulam Zainab and 10 others 2013 CLC 228 and Syed Ayoob Ali Shah v. Mst. Rabia Begum 2013 CLC 419 ref.

Pakistan Refinery Ltd., Karachi v. Barrett Hodgson Pakistan (Pvt.) Ltd. and others 2019 SCMR 1726; Muhammad Iftikhar v. Nazakat Ali 2010 SCMR 1868; Muzafar Iqbal v. Mst. Riffat Parveen and others 2023 SCMR 1652; Saeed Ullah Khan v. Muhammad Khalid and 3 others 2018 CLC 648; Muhammad Yousuf through Legal Heirs and 6 others v. Abdul Jabbar Qureshi through Legal heirs and 18 others 2019 YLR 1558 and Ali Muhammad and 4 others v. Learned Additional District Judge-III, Dadu and 14 others 2020 CLC 365 rel.

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

----O.XII, R. 6---Qanun-e-Shahadat (10 of 1984), Art. 113---Admission---Effect---Provision of O. XII, R. 6 C.P.C. provides for power of Court to pass judgment on admissions---For returning such judgment, admission has to be clear, unambiguous, unqualified and unequivocal---Court can even require evidence regarding admission, in its discretion as provided by Art. 113 of Qanun-e Shahadat, 1984.

Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another 2020 SCMR 171; Zafar Ali v. Allah Bachayo PLD 1989 SC 294 and Muhammad Zarin v. Amir Dil Khan and others 2022 MLD 1439 rel.

Hyder Ali Khan for Petitioners.

Ch. Zulfiqar Ali and Ch. Javed Bashir Gujjar for Respondent No. 1.

Ghulam Farid Sanotra for Respondent No. 2 (petitioner in connected case i.e. C.R. No. 222680 of 2018).

2025 C L C 386

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

CHAKLALA CANTONMENT BOARD through Executive Officer, Rawalpindi---Petitioner

Versus

Messrs UMAR KHAN & CO. and others ---Respondents

Civil Revision No. 1004 of 2015, heard on 28th March, 2024.

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

----S. 47---Execution proceedings---Objection petition being vexatious and baseless---Scope and effect---Objection petition moved by Judgment-debtor/ Cantonment-Board was dismissed by the Executing Court, which judgment was maintained by the Appellate Court---Objection raised by the Judgment-debtor/Cantonment-Board (petitioner-Board) was that during proceedings of the execution, decree-holder /respondent succeeded in getting transfer of the land of the Federation in his favour through registered sale deed and possession in consequence thereof had also been delivered to him, which was against the terms of the decree and as such, it was duty of the Executing Court to inquire how the registered sale deed was executed against the spirit of the decree---Validity---Pertinently, initially in the suit, alon gwith Cantonment Board (petitioner-Board), the Federal Government and other entities were also party and decree was directed against all of them---Record revealed that petitioner-Board after exhausting all available remedies (upto the Supreme Court , including moving various petitions continually) and failing to achieve its design, moved objection petition before the Executing Court as a last resort to frustrate the process of the execution in terms of decree passed way back in the year 1990 so as to deprive the decree holder from the fruits of the decree---This is a classic case demonstrating that actual misery of the decree holder starts with the execution---It is not expected from a public office/public officer to carve means for frustrating the process of law---Objection petition , in the present case, was moved without any reasonable cause to thwart the execution process---On dismissal of the objection petition, it was expected that the petitioner-Board should realize its duty and not indulge in unnecessary litigation with the public, which has confidence and trust that being a public body, petitioner-Board shall guard its rights---After dismissal of objection petition, an appeal was filed before the District Court which too was dismissed and rightly so---Objection petition at the face of it is vexatious and baseless---Revision petition filed by the Judgment-debtor/Cantonment-Board, being frivolous and vexatious, was dismissed with special costs of Rs.5,00,000/-, in circumstances.

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

----Ss. 115 & 47---Execution proceedings---Objection petition, concurrent dismissal of---Revisional jurisdiction---Scope---Revisional jurisdiction under S.115 of Civil Procedure Code, 1908 can only be invoked in the eventualities mentioned in the said provision of law---It cannot be resorted to in an omnibus fashion---Revision petition filed by the Judgment-debtor/Cantonment-Board, being frivolous and vexatious, was dismissed with special costs of Rs.5,00,000/-, in circumstances.

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

----Ss. 35-A, 47 & 115---Execution proceedings---Objection petition being vexatious and baseless--- Scope and effect---Costs, imposing of---Objection petition moved by judgment-debtor/Cantonment-Board was dismissed by the Executing Court, which judgment was maintained by the Appellate Court---Validity---In the present case, (revision) petition, after filing, remained pending for the last about nine years adding burden to the docket of the Court on the one end and on the other consumed a lot of time reserved for matters requiring attention of this/High court in actual---Such frivolous, vexatious and speculative litigation unduly burdens the courts giving artificial rise to pendency of cases which in turn clogs the justice system and delays the resolution of genuine disputes---Such litigation is required to be rooted out of the system and one of the ways to curb such practice of instituting frivolous and vexatious cases is imposing of costs---Revision petition filed by the Judgment-debtor/Cantonment-Board, being frivolous and vexatious, was dismissed with special costs of Rs.5,00,000/-, in circumstances.

Qazi Naveed Ul Islam v. District Judge, Gujrat and others PLD 2023 SC 298; Zakir Mehmood v. Secretary, Ministry of Defence (D.P), Pakistan Secretariate, Rawalpindi and others 2023 SCMR 960 and Capital Development Authority, CDA through Chairman, CDA, Islamabad v. Ahmed Murtaza and another 2013 SCMR 61 ref.

Babar Ali for Petitioner.

Arfan Ullah Malik for Respondent No. 1.

Sarfraz Rauf, Assistant Attorney General for Respondent No. 2.

2025 C L C 420

[Lahore]

Before Rasaal Hasan Syed, J

MUHAMMAD ARIF ---Petitioner

Versus

PROVINCE OF PUNJAB through Collector, Sargodha and others ---Respondents

Civil Revision No. 23580 of 2022, decided on 28th October, 2022.

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

----O. XVI, Rr. 19, 20 & 21---Qanun-e-Shahadat (10 of 1984), Art. 131 ---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Opposing party to be produced as own witness---Scope---Plaintiffs made attempt to produce one of the defendants ('defendant-in-question') as a Plaintiff' Witness (P.W.); the objection against it did not sustain with the Civil Court which passed the order against the defendants, however, District Court set-aside said the order---Validity---Perusal of the order of the Civil Judge shows that it was perfunctory which was passed without application of judicial mind, as the objection was declined simply for the reason that respondent could not produce any legal precedent, not realizing that it was the duty of court to decide the points raised before it in accordance with law and this duty could not be declined to be exercised for the reason that proper assistance was wanting---District Court, after examining the whole case, observed that defendant-in-question was a rival party against whom the allegations of breach of alleged rights claimed by the petitioner/plaintiff were raised in the plaint and that having been arrayed as defendant, he could not possibly be produced as a witness of plaintiff---Since no specific reason or explanation has been given for producing defendant-in-question as a witness by the petitioner/plaintiff, the District Court justifiably interfered with the order of the Civil/Trial Court and set it aside and in doing so no error of law was committed---Revision petition was dismissed, in circumstances.

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

----O. XVI, Rr. 19, 20 & 21---Qanun-e-Shahadat (10 of 1984), Art.131 ---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Opposing party to be produced as own witness---Scope---Oral gift---Proof---Plaintiffs made attempt to produce one of the defendants ('defendant-in-question') as a Plaintiff' Witness (P.W.); the objection against it did not sustain with the Civil Court which passed the order against the defendants , however, District Court set-aside the said order---Validity---As the plea of oral gift was specifically denied by the defendants/respondents in the suit, so the petitioner/plaintiff would have been expected to produce the evidence of persons who were alleged witnesses of transaction of oral gift---However, instead of producing said witnesses, the petitioner opted to produce one of the defendants as P.W. in evidence which was objected to---Petitioner/plaintiff did not claim in the plaint that the respondents/defendants were either witnesses to the alleged oral gift or they had ever acknowledged the same or that they were privy to any instrument in respect of the oral gift or were witnesses therein and, being so, propriety demanded that the petitioner and his co-plaintiffs shall in the first instance complete their oral evidence in support of their plea of oral gift and, thereafter, if the court felt that the recording of evidence of any of the defendants who had not entered appearance in the suit as a witness would be necessary or material it would not be denuded of its jurisdiction under O. XVI, Rr. 20 & 21, C.P.C., to compel the attendance of such party to record their statement---Permission to produce adversary may be accorded under O. XVI, R. 21, C.P.C., if such person was an executant of the document---Since no specific reason or explanation has been given for producing defendant -in-question as a witness by the petitioner/plaintiff, the District Court justifiably interfered with the order of the Civil/Trial Court and set it aside and in doing so no error of law was committed---Revision petition was dismissed , in circumstances.

Muhammad Tahir Adil and 9 others v. Bakhtiar Asad 2013 CLC 516 distinguished.

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

----O. XVI, Rr. 19, 20 & 21---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Opposing party to be produced as own witness---Scope---Plaintiffs made attempt to produce one of the defendants ('defendant-in-question') as a Plaintiff' Witness (P.W.); the objection against it did not sustain with the Civil Court which passed order against the defendants, however , District Court set-aside said the order---Petitioner placed reliance on the case of "Sri Awadh Kishore Singh and another v. Sri Brij Bihari Singh and others" (AIR 1993 Patna 122) to maintain that there was no provision to show that a party is debarred from examining its adversary as a witness and that the petitioner could legitimately produce defendant-in-question as a witness in the case---Validity---Though it is correct that Civil Procedure Code, 1908, (C.P.C.) does not contain any specific provision that bars the production of adversary by a party as their own witness but at the same time it is also true that there is no provision therein that permits such an exercise---Practice of summoning or producing an adversary as witness by the opposite party, in the ordinary course, has not been approved as it leads to unnecessary embarrassment for the opponent to face the cross-examination of his own counsel or the counsel of his co-defendants having common interest and, thereafter, reappear as a witness in support of their own case---Since no specific reason or explanation has been given for producing defendant -in-question as a witness by the petitioner/plaintiff, the District Court justifiably interfered with the order of the Civil /Trial Court and set it aside and in doing so no error of law was committed---Revision petition was dismissed, in circumstances.

Sri Awadh Kishore Singh and another v. Sri Brij Bihari Singh and others AIR 1993 Patna 122 distinguished.

(d) Qanun-e-Shahadat (10 of 1984)---

----Art. 131---Civil Procedure Code (V of 1908), O. XVI, Rr. 19, 20 & 21---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Opposing party to be produced as own witness---Scope---Plaintiffs made attempt to produce one of the defendants ('defendant-in-question') as a Plaintiff' Witness (P.W.); the objection against it did not sustain with the Civil Court which passed order against the defendants, however, District Court set-aside said order---Argument of the petitioner/plaintiff was that he has choice to decide which witness he shall opt to produce---Validity---Article 131 of Qanun-e-Shahadat, 1984 ('the Order 1984') empowers the court to disallow irrelevant or inadmissible evidence and to regulate the process of production of evidence---In the present case, the petitioner and his co-plaintiffs were expected to produce their own evidence in the affirmative in support of the alleged plea of oral gift and they could not be allowed to produce the opponent as a witness simply for the purpose of causing embarrassment of undergoing cross-examination by counsel for the petitioner as also by counsel for the co-defendants---If examination of any of the parties, who has not entered appearance in the witness-box, is necessary, Court can exercise its jurisdiction under O. XVI, R. 20, C.P.C., to direct any of the parties in the suit to appear in the court and give evidence or produce documents in their possession and power and the rules regulating the witnesses shall apply in such eventuality---Since no specific reason or explanation had been given for producing defendant -in-question as a witness by the petitioner/plaintiff, the District Court justifiably interfered with the order of the Civil /Trial Court and set it aside and in doing so no error of law was committed---Revision petition was dismissed, in circumstances.

Afrasiab Mohal for Petitioner.

Muhammad Shahzad Awan for Respondent No.1.

Ex parte for Respondents Nos.2 to 10.

2025 C L C 434

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

SARFRAZ KHAN ---Petitioner

Versus

PROVINCE OF PUNJAB through D.O.R. District Jhang and others ---Respondents

Civil Revision No. 155763 of 2018, decided on 5th November, 2024.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Colonization of Government Lands (Punjab) Act (V of 1912), Ss. 10, 24 & 30 (2)---Suit for declaration and injunction---Confirmation of proprietary rights and registration of conveyance deed---Resumption of land---Principle---Petitioner/plaintiff claimed to be owner of suit land having property rights issued in his favour but authorities illegally passed resumption order---Trial Court and Lower Appellate Court concurrently decided suit and appeal against petitioner/plaintiff---Validity---Once sale price was deposited and possession was handed over to allottees by Collector, no other Revenue Authorities, even superior to the Collector, could intervene to reverse Collector's decision---If allotment was cancelled by Revenue Appellate Court, Civil Court had jurisdiction to set aside such cancellation, especially if it was found to be in violation of terms of sale or the provisions of Colonization of Government Lands (Punjab) Act, 1912---Board of Revenue was not equipped with any authority even to cancel allotment in favour of petitioner/plaintiff, once the price was received and sale deed had been executed---Where transferee had conveyed land to a bona fide purchaser, the power to resume land, for which proprietary rights had already been granted, could not be exercised---After confirmation of proprietary rights and registration of conveyance deed, allottee would become absolute owner of the land---High Court in exercise of revisional jurisdiction set aside concurrent judgments and decrees passed by two Courts below---Revision was allowed, in circumstances.

Province of the Punjab, through District Officer, Toba Tek Singh and others v. Nazir Ahmed and 9 others 2008 SCMR 749; Province of Punjab through Collector and 4 others v. Haji Wali Muhammad and 4 others 2004 MLD 441; Rulya v. Province of Punjab through District Collector, Sargodha and others 2006 YLR 1915; Abdul Ghafoor and others v. Mst. Rasoolan Bibi and others 2009 YLR 1593 and Province of the Punjab through Collector and 2 others v. Mst. Nabeela Taj and others 2015 YLR 1635 ref.

Muhammad Ishaq v. Abdul Ghani and 3 others 2000 SCMR 1083; Abdul Ghafar and others v. Government of West Pakistan and others PLD 1963 (W.P.) Karachi 215 and Province of Punjab through Collector and 2 others v. Muhammad Farooq and 2 others 2017 YLR Note 362 distinguished.

Muhammad Liaquat and 5 others v. Member Board of Revenue (Colonies), Punjab, Lahore and 3 others 2000 CLC 953; Province of Punjab and others v. Waseem Arshad and others PLD 2023 Lah. 564; Anjuman-e-Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha and another PLD 1966 SC 639 and Karim Khan and 130 others v. The Additional Settlement Commissioner (Land) and 3 others 1993 SCMR 2344 rel.

Asim Mahmood Malik for Petitioner.

Muhammad Saad Bin Ghazi, Assistant Advocate General along with Aman Ullah Joiya, Tehsildar Jhang for Respondents.

Respondent No. 3: Ex parte.

2025 C L C 452

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

Mst. ILYAS AKHTAR and others ---Petitioners

Versus

PROVINCE OF PUNJAB and others ---Respondents

Civil Revision No. 250 of 2017, decided on 13th December, 2022.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 27---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction---Additional evidence, production of---Pre-condition---Appellate Court, jurisdiction of---Filling in lacuna---Scope---Suit filed by respondents/plaintiffs was decreed in their favour by Trial Court---During appeal, petitioners/defendants sought permission to adduce additional evidence but Lower Appellate Court declined the request---Validity---Where interest of justice and requirement of Court in adjudicating on the matter demand that such additional evidence is necessary, then the same should be allowed and recorded---Courts are not denuded of the power to summon all necessary record and also to summon witnesses so as to supply omissions from both sides---If a piece of evidence is relevant and pertinent for the decision of any issue, and it is genuine and reliable, it should not be stopped from being brought on record merely because in process employed for collection of material an irregularity or an illegality was committed---Concept of bar against filling gaps is no more available in jurisprudence of Pakistan---Courts should collect and record evidence which is authentic, consistent with pleadings and relevant to findings so as to advance and do complete justice between the parties---Interest of justice demanded that petitioners/defendant could have been allowed to bring on record documents as well as oral evidence which were otherwise of unimpeachable authenticity for resolving controversy and meeting ends of justice---Lower Appellate Court failed to exercise jurisdiction in accordance with law by disallowing the application---High Court in exercise of revisional jurisdiction set aside order passed by Lower Appellate Court and allowed application for additional evidence filed by petitioners/defendants---High Court directed Lower Appellate Court to record additional evidence of petitioners/defendants and respondents/plaintiffs would have a right to produce any lawful evidence in rebuttal---Revision was allowed accordingly.

Asadullah Khan v. Abdul Karim 2001 AC 290; Defence Science and Technology Organization through Director General v. Arif Engineering International through Sole Proprietor 2021 CLC 103; Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213; Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 5; H.M. Saya and Co v. Wazir Ali Industries Limited PLD 1969 SC 65; Bisvil Spinners (Pvt) Ltd. v. Pakistan through Secretary Ministry of Finance, Islamabad and others PLD 1992 SC 96; Syed Phul Shah v. Muhammad Hussin and 10 others PLD 1991 SC 1051; Ahmad Ashraf v. University of the Punjab 1988 SCMR 1782; Mst. Fazal Jan v. Roshan Din and 2 others PLD 1992 SC 811; Zar Wali Shah v. Yousaf Ali Shah and 9 others 1992 SCMR 1778; Muhammad Tariq and others v. Mst. Shamsa Tanveer and others PLD 2011 SC 151; Commissioner Multan Division, Multan and others v. Muhammad Hussain and others 2015 SCMR 58; Syed Sharif Ul Hassan through L.Rs. v. Hafiz Muhammad Amin and others 2012 SCMR 1258; Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 and Khurshid Ali and 6 others v. Shah Nazar PLD 1992 SC 822 rel.

Malik Javed Akhtar Wains for Petitioners.

Maher Muhammad Imtiaz Hussain Mirali, Assistant Advocate General Punjab for Respondent No.1.

Ch. Ghulam Din Aslam for Respondents Nos. 2 to 7.

2025 C L C 469

[Lahore]

Before Muhammad Raza Qureshi, J

Dr. MUHAMMAD SHARIF NIZAMI ---Petitioner

Versus

FEDERATION OF PAKISTAN and others ---Respondents

Writ Petition No.16222 of 2013, decided on 13th February, 2023.

Constitution of Pakistan---

----Arts. 251(1) & 189---National language (Urdu), implementation of---Language of Art. 251 of the Constitution leaves no room for further interpretation as the word "shall" in Art. 251(1) of the Constitution manifests that it is mandatory provision and not directory, therefore, the provisions of Art. 251 can neither be redundant nor defiance thereof can be allowed---Pursuant to Art. 251 of the Constitution, Urdu has been declared as national language of Pakistan and stipulates steps to be taken by Provinces for the promotion of provincial language in addition to the national language---National language is always a driving force behind unity of citizens of a country, which makes them distinct from other nations---This is possible only if the recognition and respect is given to the national language, therefore, it is pivotal that it should be graded as a primary language and preferred source of communication at every level---Apart from a name, a boundary, a currency and a flag, the national language makes a country respectable---Federal as well as Provincial Governments are bound to implement the provisions of Art. 251 as well as order of the Supreme Court of Pakistan---High Court directed the respondents to take steps for implementation of Urdu language---Constitutional petitions filed by concerned citizens were disposed of accordingly.

Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan and another PLD 2011 SC 407; Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132; Independent Media Corporation and others v. Federation of Pakistan and others PLD 2014 SC 657; The 'Contract Act, 1872, 2nd Edition/2011' by M Mahmood Advocate PLD 2015 SC 257; District Bar Association, Rawalpindi and others v. Federation of Pakistan and others PLD 2015 SC 401 and Muhammad Kowkab Iqbal and another v. Government of Pakistan through Secretary Cabinet Division, Islamabad and others PLD 2015 SC 1210 ref.

Ahmad Abdullah Dogar for Petitioner (in Writ Petition No. 16222 of 2013 and Writ Petition No. 10168 of 2012).

Muhammad Azhar Siddique for Petitioner (in Writ Petition No. 23071 of 2014).

Muhammad Fahad Nayab Karim for Petitioner (in Writ Petition No. 34254 of 2016).

Sikandar Javed for Petitioner (in Writ Petition No. 17937 of 2016).

Rana Arfan Ali, Assistant Attorney General for Pakistan.

Ali Riaz Kirmani, A.A.G. for Province of Punjab.

Zulfiqar Ali, Admin Officer, National Language Promotion Department, Islamabad.

2025 C L C 478

[Lahore]

Before Sultan Tanvir Ahmad, J

SAADIA KHALIL ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and 2 others ---Respondents

Writ Petition No. 27113 of 2024, heard on 15th August, 2024.

Guardians and Wards Act (VIII of 1890)---

----Ss. 25 & 26(2)---Removal of ward from jurisdiction---Discretion of Guardian Court---Lack of interest of father in the proceedings before the courts, visitation schedule or contribution towards child's welfare---Protection to non-custodial parent by limiting the removal of child---Scope---Paramount considerations and circumstances for grant of leave for removal of child---Contention of the petitioner (mother) was that the refusal of leave to remove the child abroad and imposition of condition thereto was without considering the welfare of the child and harmful to child's education---Validity---Legislation has no intention to place complete embargo on granting permission to restrict ward within jurisdiction, otherwise, the Courts would not have been empowered to grant leave to take the ward out of the territorial jurisdiction---Section 26(2) of the Guardians and Wards Act, 1890 (Act) permits the Courts to grant special or general leave and to deny the leave---Appellate Court was correct in its decision that the above provisions were holding the field; however, it ignored that the requirement of leave before removing was also for the well being of the ward and for protecting the interest of the ward as well as the non-custodial parent---Leave can be granted on case to case basis, when welfare of the ward so demands---Appellate Court should have proceeded to give findings on merits of the case by considering the request to permit the petitioner to take the minor abroad for educational purposes, instead of making the mother or the minor go through further rigors---Appellate Court had not exercised the jurisdiction conferred by law to properly consider the request of the petitioner as it had ignored that the respondent (father) was not taking any interest or contributing towards the welfare of the minor and completely failed in observing the visitation schedule framed by the Guardian Court---Thus, it was not in the welfare of the minor to deprive him from joining his educational institution in USA, and restricting him within the territorial jurisdiction of the Guardian Court---High Court considered it appropriate to permit the petitioner to take the minor to USA for educational purposes---Constitutional petition was allowed, in circumstances, with the direction to petitioner to appear before the Guardian Court for intimation about her present residence and name as well as address of educational institution of the minor in USA.

Mst. Sidra Asif v. Additional District Judge and 2 others 2019 YLR 2692 and Raja Muhammad Owais v. Mst. Nazia Jabeen and others 2022 SCMR 2123 ref.

Dr. Aisha Yousuf v. Khalid Muneer and 2 others PLD 2012 Sindh 166; Scherazade Jamali v. Hisham Gillani and others PLD 2018 Sindh 377; Gul Mina Afridi v. Rana Abdul Kareem and others C.P. No. S-411 of 2022 and Watson v. Watson Aug 03, 2004 I 2004 Neb. App. LEXIS 190 rel.

Barrister Syeda Maqsooma Zahra Bokhari, Mubashar Hussain and Ms. Iqra Liaqat for Petitioner.

Barrister Marryam Hayat, Amicus Curiae.

Respondent No. 3. Ex-parte vide order dated 05.06.2024.

2025 C L C 513

[Lahore (Multan Bench)]

Before Anwaar Hussain, J

Sheikh KHALID JAVAID ---Petitioner

Versus

SHAMAS UD DIN CHISHTI ---Respondent

Civil Revision No. 323 of 2022, decided on 28th February, 2024.

(a) Specific Relief Act (I of 1877)---

----S. 12---Transfer of Property Act (IV of 1882), S. 54---Suit for specific performance of contract for immovable property---Cut-off date for payment of balance sale consideration---Conduct of the vendee for issuance of decree of specific performance---Relevancy---Failure of respondent/plaintiff to deposit the remaining sale consideration throughout the proceedings showing his lack of readiness and willingness to perform his contractual obligation---Plea of pending proceedings before the National Accountability Bureau (NAB)---Unexplained delay in filing the suit---Effect---Conditional offer made by the petitioner/defendant during pendency of suit before Trial Court, became invalid owing to non-fulfillment by the respondent---Appellate

Court treating that offer as admission of the defendant and accepted the appeal of the respondent---Validity---Respondent entered into the agreement with the petitioner and thereafter, entangled the latter into litigation and avoided the payment of the balance consideration amount on one pretext or the other, meaning thereby that the respondent was neither willing nor ready to pay the balance amount of consideration and the Appellate Court below was not justified in relying on the admission of execution of the agreement by the petitioner before the Trial Court to decree the suit of the respondent---In fact, when the direction of the Trial Court was not complied with by the respondent, the Trial Court should have immediately proceeded to dismiss the suit---Conditional offer made by the petitioner before the Trial Court to decree the suit for specific performance of the contract, which was not accepted by the respondent did not remain valid at the appellate stage, thus, it was unjustified to pass the judgment and decree on the basis of an offer which no longer existed in favour of respondent, who had acted in a contumacious manner---Performance of the contract should not have been seen from the date when it was suitable to the respondent---To adjudge whether the respondent was ready and willing to perform his part of the contract, the court had to take into consideration the conduct of the respondent prior as well as subsequent to the institution of the suit along with other attending circumstances---Amount of consideration which respondent had to pay to the petitioner must necessarily be proved to be available and right from the cut-off date set for completion of the contract till date of the decree, the respondent must prove that he was ready and had always been willing to perform his part of the contract---Conduct of the respondent had been far from fair and he had failed to make out a case for the grant of any equitable relief since his conduct amply showed that he was not ready and willing to perform his part of the contract: neither when the suit was instituted; nor when the interim injunction was granted; nor throughout the proceedings before the Trial Court, and only deposited the amount, at the appellate stage, when it suited him---There was no explanation in the suit as to why the respondent remained mum for a period of almost one year after the cut-off-date and never acted promptly to institute the suit---Civil revision was allowed, in circumstances with a direction to return the earnest money already received by the petitioner.

Muhammad Asif Awan v. Dawood Khan and others 2021 SCMR 1270 and Muhammad Jehanzaib Khan v. Muhammad Rafique Khan and 2 others 2021 PLC (C.S.) 1435 Distinguished.

Hamood Mehmood v. Mst. Shabana Ishaque and others 2017 SCMR 2022 and M/s. Kuwait National Real Estate Company (Pvt) Ltd. and others v. M/s. Educational Excellence Limited and others 2020 SCMR 171 rel.

(b) Specific Relief Act (I of 1877)---

----S. 22---Jurisdiction of the courts to grant and refuse relief of specific performance---Scope---Jurisdiction of the Courts to issue a decree of specific performance is discretionary in nature as it is an equitable relief, thus, the Court is not bound to grant such relief merely because it is lawful to do so.

Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189, Muhammad Abdur Rehman Qureshi v. Sagheer Ahmad 2017 SCMR 1696 and Zakia Hussain and another v. Syed Farooq Hussain PLD 2020 SC 401 rel.

Malik Muhammad Akbar Bhutta for Petitioner along with Petitioner.

Muhammad Mehrban Ranjha for Respondent.

Dr. Ashraf Ali Qureshi for Applicant (in C.M. No. 2833 of 2022)

2025 C L C 535

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

MUHAMMAD YOUNAS KHAN and 15 others ---Petitioners

Versus

SUI NORTHERN GAS PIPELINES LIMITED (SNGPL) through Managing Director and 4 others ---Respondents

Writ Petition No. 4315 of 2023, heard on 15th February, 2024.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Pre-qualification of distribution contractors for enlistment---Security amount---Memorandum---Retrospective effect---Scope---Petitioners (enlisted distribution contractors) deposited security in year 2021 in light of policy introduced by SNGPL in 2018---A memorandum was issued by SNGPL on 13th September, 2023, ('Memorandum-in-question') in the light of a decision of the Islamabad High Court allowing constitutional petition filed by a contractor of SNGPL---Vide memorandum-in-question, SNGPL decided to return the security amount deposited by each contractor against their pre-qualification yet with certain conditions including 5% Performance Bond/Warranty of the total value of the Work Order---Petitioners filed constitutional petition as SNGPL (Respondents) denied return of security to them ('impugned order')---Whether a memorandum can be given effect retrospectively---Held, that admittedly, the petitioners were awarded work and in terms thereof work order was issued on 09th March, 2021, for three years, which had to expire in the next month (March, 2024)---A notification/memorandum or an executive order cannot operate retrospectively unless it is specifically provided therein---Through memorandum-in-question (having been issued dated 13th September, 2023 ) the respondents (SNGPL) decided to return the security amount deposited by the petitioners and instead they were directed to fulfill the certain other conditions mentioned for their pre-qualification---Contracts awarded to the petitioners were yet to expire (in March, 2024) and it was not the case of the respondents (SNGPL) that the petitioners failed to abide by the terms and conditions of the contracts---In such a situation any condition detrimental to the interest of the petitioners could be introduced during the currency of the already executed contract---High Court set aside the impugned order (dated 15th December, 2023) passed by the Respondents (SNGPL), being illegal and unlawful---Respondents were further restrained from refunding the security already deposited and from asking the petitioners to abide by memorandum/notification dated 13th September, 2023, for the current contracts---Constitutional petition was partly allowed.

Government of Pakistan through Secretary Establishment Division, Islambad v. Muhammad Ismail and another 2021 SCMR 1246 ref.

(b) Constitution of Pakistan---

----Art. 199---Enforcement of contractual obligations, matter of---Invoking constitutional jurisdiction of High Court---Scope---Petitioners (enlisted distribution contractors) deposited security in year 2021 in light of policy introduced by SNGPL in 2018---A memorandum was issued by SNGPL on 13th September, 2023, ('Memorandum-in-question') in the light of a decision of the Islamabad High Court allowing constitutional petition filed by a contractor of SNGPL---Vide memorandum-in-question, SNGPL decided to return the security amount deposited by each contractor against their pre-qualification yet with certain conditions including 5% Performance Bond/Warranty of the total value of the Work Order---Petitioners filed constitutional petition as SNGPL (Respondents) denied return of security to them ('impugned decision')---Validity---There is no cavil that the High Court in exercise of constitutional jurisdiction can neither settle the terms and conditions of the contract inter se parties nor direct the executive to insert or exclude certain condition in the contract, which undoubtedly is within the domain of the executive---Undeniably, in the matter of enforcement of contractual obligations, the High Court in ordinary course abstains to exercise constitutional jurisdiction for enforcement of the terms and conditions of the contract or to remedy the breach of contract but at the same time the constitutional jurisdiction cannot be abridged if some perversity or patent illegality is floating on the surface of the record---Though constitutional jurisdiction ordinarily should not be exercised in case of breach of contract but if such breach does not entail any inquiry or examination of minute or controversial questions of fact, if committed by Government, semi-Government or Local Authorities, it can adequately be addressed in exercise of jurisdiction contemplated under Art. 199 of the Constitution---Petitioners had not canvassed any issue involving intricacy of facts---They had entered into a lawful contract with "SNGPL" on the terms and conditions settled by the latter, so now the petitioners could not be confronted with conditions, which were alien to existing contract and prejudicial to the interest of the petitioners almost at the fag end of the contractual period---Terms of impugned memorandum could be enforced for the upcoming contracts provided these were in accord with law---High Court set aside the impugned order (dated 15th December, 2023) passed by the Respondents (SNGPL), being illegal and unlawful---Respondents were further restrained from refunding the security already deposited and from asking the petitioners to abide by notification dated 13th September, 2023, for the current contracts---Constitutional petition was partly allowed.

Messrs Airport Support Services v. The Airport Manager Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268; Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and others 2005 SCMR 678; Messrs Ameer Khan and Co. v. Government of the Punjab through Secretary, Local Government, Lahore PLD 2010 Lahore 443; Dewan Petroleum (Pvt.) and others v. Government of Pakistan and others PLD 2010 Lahore 404 and Haji Amin v. Pakistan Trading Corporation (Pvt.) Ltd and another PLD 2009 Karachi 112 ref.

(c) Constitution of Pakistan---

----Art. 18---Right of trade and business---Scope---Petitioners (enlisted distribution contractors) deposited security in year 2021 in the light of policy introduced by SNGPL in 2018---A memorandum was issued by SNGPL on 13th September, 2023 ('memorandum-in-question') in the light of a decision of the Islamabad High Court allowing constitutional petition filed by a contractor of SNGPL---Vide memorandum-in-question , SNGPL decided to return the security amount deposited by each contractor against their pre-qualification yet with certain conditions including 5% Performance Bond/Warranty of the total value of the Work Order---Petitioners filed constitutional petition as SNGPL (Respondents) denied return of security to them ('impugned decision')---Validity---Right of trade and business is guaranteed under the Constitution---While discharging official functions ,efforts should be made to ensure that no one should be denied to earn his livelihood because of the unfair or discriminatory treatment on the part of any State functionary---High Court set aside the impugned order dated 15th December, 2023 passed by the Respondents (SNGPL), being illegal and unlawful---Respondents were further restrained from refunding the security already deposited and from asking the petitioners to abide notification dated 13th September, 2023, for the current contracts---Constitutional petition was partly allowed.

Shaukat Ali and others v. Government of Pakistan through Chairman, Ministry of Railways and others PLD 1997 SC 342 ref.

Hassan Raza Pasha for Petitioners.

Raja Anwar ul Hassan for Respondents.

2025 C L C 550

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

ADNAN ARIF ---Petitioner

Versus

PROVINCE OF PUNJAB and others ---Respondents

Writ Petition No. 3768 of 2024, decided on 10th December, 2024.

Punjab Local Government Act (XXXIII of 2022)---

----Ss.99, 110, 146(3), 147, 148 & Fifth Schedule, Part-1 (I)---Punjab Government Rules of Business, 2011, Rr. 3 & 10---Constitution of Pakistan, Art. 139(2)---Advertisement fee, reduction of---Secretary Local Government---Jurisdiction---Limine control, principle of---Applicability---Petitioner/contractor was to collect advertisement fee on behalf of Local Government and was aggrieved of reduction of rates by respondent/Secretary Local Government and Community Development---Validity---Mechanism was provided under S. 99 and Part-1 (I) of Fifth Schedule to Punjab Local Government Act, 2022, for levy of tax and fee for regulation of advertisement through sign boards, hoardings, cutouts, neon-signs, pole signs, sky signs and boards, billboards, directional boards, banners, streamers, moppy signs, temporary advertisement structures and stalls, posters, one way vision, hot air ballons and blimps, moving vehicles, electronic display screens including Light Emitting Diode (LED) and Surface Mounted Device (SMD) etc.---Respondent/Secretary was in charge of Local Government Department---Order passed by respondent / Secretary was strictly as per mandate of Ss. 146(3), 147 and 148 of Punjab Local Government Act, 2022, in addition to R. 10(1) of Punjab Government Rules of Business, 2011---Provisions of Punjab Government Rules of Business, 2011 had Constitutional command as the same were made under Art. 139 (2) of the Constitution---High Court by applying principle of limine control, declined to interfere in the order passed by respondent/Secretary---Constitutional petition was dismissed in circumstances.

Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808; Asif Saleem v. Chairman BOG University of Lahore and others PLD 2019 Lahore 407; Messrs Colony Textile Mills Limited and another v. First Punjab Modaraba 2021 CLD 1212; Muhammad Shehzad v. Faisal Bank Limited 2024 CLD 141; Muhammad Yousaf v. Secretary Finance and others PLD 2021 Lahore 156= 2021 PLC (CS) 195; Ch. Fayyaz Hussain v. Province of Punjab and others PLD 2022 Lahore 1; PIA Officers Cooperative Housing Society Ltd. through President v. Province of Punjab through Secretary to the Government of Punjab, Cooperatives Department, Lahore and 4 others 2024 CLC 947; Muhammad Banaras v. Government of the Punjab etc. PLD 2024 Lahore 242 and M.C.R. (Pvt) Ltd, franchisee of Pizza Hut v. Multan Development Authority and others 2021 CLD 639 rel.

Continental Biscuits Ltd. v. Federation of Pakistan through Secretary Defence, Ministry of Defence, Islamabad and 3 others 2017 PTD 1803=2017 YLR 2155 ref.

Syed Qamar Hussain Shah Sabzwari, Advocate Supreme Court along with Basharat Ali Khan Abbasi and Mansoor Tariq for Petitioner.

Abid Aziz Rajori, Assistant Advocate General Punjab (on Court call), Arshad Mehmood Malik, Assistant Attorney General, Fazli Qadir Khan and Mujtaba-ul-Hassan, Civil Judge/Research Officer for Respondents.

2025 C L C 563

[Lahore]

Before Ali Baqar Najafi, Shahid Bilal Hassan and Jawad Hassan, JJ

MUHAMMAD BILAL ---Petitioner

Versus

APPELLATE ELECTION TRIBUNAL and others ---Respondents

Writ Petition No. 1770 of 2024, decided on 11th January, 2024.

Elections Act (XXXIII of 2017)---

----Ss. 62 (5) & 62(9)(d), Proviso (ii)---Scrutiny of nomination papers---Error of substantial nature---Location of properties, non-mentioning of---Effect---Petitioner/candidate was aggrieved of acceptance of nomination papers of respondent/candidate by Election Appellate Tribunal---Validity---Failure to mention location of properties was not an error of substantial nature and it could be remedied by candidate under second proviso to S. 62 (9)(d) of Elections Act, 2017---Returning Officer was empowered under S. 62 (5) of Elections Act, 2017 to require any authority or organization including financial institution to produce any document or record or to furnish any information as could be necessary to determine facts relating to an objection to candidature of a candidate---Returning Officer instead of complying with such requirement straightaway rejected nomination papers of respondent/candidate and this was not warranted by law---When law requires a thing to be done in a particular manner and after fulfilment of certain requirements then it must be done in the very manner and after fulfilment of very conditions as imposed by law---High Court declined to interfere in findings arrived at by Election Appellate Tribunal---Constitutional petition was dismissed, in circumstances.

Let. Gen. (R) Salahuddin Tirmizi v. Election Commission of Pakistan PLD 2008 SC 735; Ch. Muhammad Ashraf v. Malik Muhammad Muzaffar Khan and others 2022 CLC 2045 and Muhammad Hanif Abbasi v. Imran Khan Niazi and others PLD 2018 SC 189 rel.

Sohail Shafiq for Petitioner.

Imran Arif Ranjha with Ms. Bushra Rasheed, Deputy Director Law and Hafiz Adeel Ashraf, A.D for Election Commission of Pakistan for Respondents.

Abid Saqi, Advocate Supreme Court for Respondent No. 3.

Muhammad Adeel, R.O. NA-58.

2025 C L C 572

[Lahore (Multan Bench)]

Before Ch. Muhammad Iqbal, J

ALLAH BAKHSH (deceased) through legal heirs and others ---Petitioners

Versus

MUHAMMAD HANIF (deceased) through legal heirs and others ---Respondents

Civil Revision No. 377-D of 2023, decided on 27th March, 2024.

(a) Specific Relief Act (I of 1877)---

----S. 42---Punjab Land Dispositions (Saving of Shamilat) Ordinance (I of 1959), S.3---Land Record Manual, Para 7.19---Suit for declaration---Shamilat land---Consolidation proceedings---Alienation of Shamilat land without specifically mentioning it in the sale deed and mutation---Legality---Plaintiff/predecessor-in-interest of respondents claimed to be exclusive owner in possession of the Shamilat land, as he had only executed sale deed and mutation qua his owned land without mentioning anything as to his share in the Shamilat land---Suit was dismissed, however, the appeal was accepted---Validity---Documents of sale deed and mutation did not show any entry of transfer of Shamilat land---Petitioners purchased only land but not the Shamilat---It was necessary to show in the mutation whether the transfer of land included the shares of the Shamilat---In case of selling of land without specifying Shamilat only the ownership of the land would be transferred and not the Shamilat---Civil revision was dismissed, in circumstances.

Abdul Ghani and others v. Mst. Yasmeen Khan and others 2011 SCMR 837; Saleem Akhtar v. Nisar Ahmad PLD 2000 Lahore 385; Abdur Rauf Khan and another v. Firm Babu Munir Ghulam Siddique and others 1976 SCMR 436; Fazal Rahim and others v. Faqir Muhammad and others 1987 SCMR 1667 and Chiragh Shah (represented by legal heirs) v. Akhtar Munir and 25 others 1983 CLC 51 Rel.

(b) Specific Relief Act (I of 1877)---

----S. 42---Punjab Land Revenue Act (XVII of 1967), Ss.35, 52 & 53---Limitation Act (IX of 1908), First Sched., Art.120---Suit for declaration---Limitation---Jurisdiction of Civil Court---Scope---Alienation of Shamilat land in consolidation proceedings---Appeal---Categoric advice of revenue authorities to approach Civil Court---Pleas of non-maintainability of suit and limitation---Validity---Consolidation authorities in appeal and revision, categorically advised the plaintiff to approach Civil Court for correction of entries in the revenue record---Every new entry in revenue record creates fresh cause of action and in this case recurring cause of action was available to the plaintiff---Plaintiff was in possession of the suit land as such the suit was well within time and the Civil Court had rightly adjudicated upon the matter---Pleas taken by the petitioners were repelled, accordingly.

Abdul Sattar Khan and another v. Rafiq Khan and others 2000 SCMR 1574 and Muhammad Yousaf through his L.Rs and others v. Noor din and others 1993 MLD 763 Rel.

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

----S. 115---Revisional jurisdiction---Scope---Conflict of judgment of lower courts---Preference---Scope---In the event of conflict of judgments, findings of Appellate Court are to be preferred and respected, unless it is shown from the record that such findings are not supported by evidence.

Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398 and Rao Abdul Rehman (deceased) through legal heirs v. Muhammad Afzal (deceased) through legal heirs and others 2023 SCMR 815 rel.

Syed Muhammad Ali Gillani for Petitioners.

Muhammad Khalid Khan Sikhani for Respondents.

2025 C L C 600

[Lahore]

Before Shahid Bilal Hassan, J

MUHAMMAD AZAM ---Petitioner

Versus

PROVINCE OF THE PUNJAB through District Collector, Toba Tek Singh and others ---Respondents

Civil Revision No. 21823 of 2024, decided on 4th April, 2024.

(a) Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Oral gift---Mutation---Exclusion of sisters/respondents from their right of inheritance in their absence---Essential ingredients of gift---Proof---Non-mentioning of necessary details as to offer and acceptance of gift in the written statement/pleadings of the petitioners---Effect---Evidence beyond the scope of pleadings---Admissibility---Suit was dismissed by the Trial Court, however, the Appellate Court accepted the appeal of the respondent and decreed the suit---Validity----Basic ingredients of a valid gift are offer, acceptance and delivery of possession---No description of making of offer and acceptance of the same by the deceased donor had been given in the written statement of the petitioner, which were necessary to plead and prove---Same had not even been deposed during the evidence either by the petitioner or his witnesses because a party cannot lead any evidence beyond its pleadings---No illegality and irregularity as well as wrong exercise of jurisdiction was found in the findings of the Appellate Court---Civil revision was dismissed, in circumstances.

Bilal Hussain Shah and another v. Dilawar Shah PLD 2018 SC 698; Khalid Hussain and others v. Nazir Ahmad and others 2021 SCMR 1986; Zulfiqar and others v. Shahdat Khan PLD 2007 SC 582; Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others 2014 SCMR 914; Combined Investment (Pvt.) Limited v. Wali Bhai and others PLD 2016 SC 730 and Saddaruddin through LRs. v. Sultan Khan through LRs and others 2021 SCMR 642 rel.

(b) Gift---

----Oral gift---Mutation---Independent transactions having two parts---Burden of proof---Failure of the petitioner/donee to prove transactions of gift and mutation independently being beneficiary thereof---Effect---Petitioner instead of proving the gift and mutation thriving on the shortcomings of the evidence of respondents---Oral gift has two parts i.e. firstly the fact of the oral gift which has to be independently established by proving through cogent and reliable evidence the three necessary ingredients of a valid gift and secondly mutation on the basis of an oral gift has to be independently established and proved by adopting procedure provided in the Land Revenue Act, 1967 as well as the evidentiary aspects of the same in terms of the Qanun-e-Shahadat, 1984---Petitioner could not lead any cogent, strong, unimpeachable and confidence inspiring evidence with regards to first part of alleged oral gift---Matters pertained to inheritable property, so the petitioner being alleged done was under heavy burden to prove valid execution of oral gift because he could not take benefit of the shortcomings in the evidence of respondents, rather he had to stand on his own legs---Civil revision was dismissed, in circumstances.

Faqir Ali and others v. Sakina Bibi and others PLD 2022 SC 85; Mushtaq Ul Aarifin and others v. Mumtaz Muhammad and others 2022 SCMR 55; Mst. Parveen through LRs. v. Muhammad Pervaiz and others 2022 SCMR 64 and Mst. Hayat Bibi and others v. Alamzeb and others 2022 SCMR 13 rel.

(c) Islamic law---

----Inheritance---Limitation---In matters regarding inherited property, the question of limitation does not arise.

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

----S. 115---Inconsistency in judgments of lower courts---Preference---In case of inconsistency between the findings of the Trial Court and the Appellate Court, the findings of the latter must be given preference in the absence of any cogent reason to the contrary.

Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1; Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617 and Muhammad Nawaz through LRs. v. Haji Muhammad Baran Khan through LRs. and others 2013 SCMR 1300 rel.

2025 C L C 621

[Lahore]

Before Asjad Javaid Ghural, J

MANZAR ABBAS ---Appellant

Versus

Mian MUHAMMAD AZAM and 2 others ---Respondents

Election Appeal No. 630 of 2024, decided on 9th January, 2024.

(a) Elections Act (XXXIII of 2017)---

----Ss. 60 & 63---Nomination papers of candidate, acceptance of---Scope---Appellant challenged order passed by the Returning Officer, whereby he, by over-ruling the objections of the appellant, accepted the nomination papers of respondent---Objection of the Appellant was that the respondent was defaulter of Irrigation Department---Validity---Demand of the Irrigation Department had already been challenged before the High Court by way of filing constitutional petition, as such the demand was still not finalized, therefore, on such basis respondent could not be precluded from contesting the elections---Appeal, being merit-less, was dismissed.

(b) Elections Act (XXXIII of 2017)---

----Ss. 60 & 63---Nomination papers of candidate, acceptance of---Scope---Appellant challenged order passed by the Returning Officer, whereby he, by over-ruling the objections of the appellant, accepted the nomination papers of respondent---Objection of the Appellant was that there were clear discrepancies in the income and expenses of the respondent---Validity---Appellant had failed to bring on record anything in black and white in support of his objection/submission---Even otherwise, question as to whether the declaration/statement of the candidate in the nomination paper was false or incorrect in any material particular, could not be ascertained without carrying out factual probe, which exercise could not be undertaken by the Returning Officer or the Appellate Tribunal in summary proceedings---Appeal, being merit-less, was dismissed.

Rai Hassan Nawaz v. The Election Commission of Pakistan and others 2013 CLC 1101 ref.

(c) Elections Act (XXXIII of 2017)---

----Ss. 60 & 63---Nomination papers of candidate, acceptance of---Scope---Appellant challenged order passed by the Returning Officer, whereby he, by over-ruling the objections of the appellant, accepted the nomination papers of respondent---Objection of the appellant was that the respondent concealed registration of a criminal case (FIR) against him---Validity---There was nothing on record from which it could be inferred that the respondent was associated in the said case either at the stage of inquiry or investigation, therefore, it could not be construed that the respondent knowingly furnished false information in said regard---There appeared no other reason to conceal the case, as even disclosure of the FIR would not amount to his disqualification---Non-disclosure of pending case(s) cannot be equated with non-disclosure of a criminal case in which a person has been convicted and one which may entail his disqualification---Appeal , being merit-less, was dismissed.

Sheikh Muhammad Akram v. Abdul Ghafoor and 19 others 2010 SCMR 733 ref.

(d) Elections Act (XXXIII of 2017)---

----Ss. 60 & 63---Nomination papers of candidate, acceptance of---Scope---Appellant challenged order passed by the Returning Officer, whereby he, by over-ruling the objections of the appellant, accepted the nomination papers of respondent---Objection of the Appellant was that the respondent had furnished forged and fictitious report of Tehsildar qua clearance of any dues---Held, that said objection was not taken by the appellant before the Returning Officer, therefore, the same could not be allowed to be agitated at present stage---Appeal, being merit-less, was dismissed---Appeal, being merit-less, was dismissed.

Usman Nasir Awan, Ahmar Wasim Malik and Faizan Ahmad for Appellant.

Muhammad Jawad Zafar for Respondent No. 1.

2025 C L C 638

[Lahore]

Before Rasaal Hasan Syed, J

MUHAMMAD ALAM ---Petitioner

Versus

DARBARI KHAN ---Respondent

C.R. No. 40284 of 2020, decided on 3rd February, 2023.

(a) Limitation Act (IX of 1908)---

----First Sched., Art. 113---Specific Relief Act ( I of 1877), S. 12---Suit for specific performance, filing of---Limitation---Date of terminus a quo---Suit filed by the petitioner was concurrently dismissed---Validity---Limitation to file a suit for specific performance of sale agreement is regulated by Art. 113 of Limitation Act, 1908 which provides that if a date is fixed for performance, the suit could be instituted within three years from the date so fixed and if no such date is fixed the suit could be filed when the vendee has noticed that the performance has been refused---Suit of the petitioner falls in the first part of said Art. 113 as in the agreement-in-question itself the parties had fixed date for the payment of balance consideration and completion of sale till 01.5.2008---Said fact was also admitted by the petitioner in his statement as witness wherein in cross-examination he stated that it is correct that the agreement was executed on 01.2.2008 and that the suit was instituted on 17.12.2013---It was also admitted that in the agreement it was stipulated that balance amount of Rs.2,00,000/- was payable till 01.5.2008 and in case of non-payment the agreement would stand rescinded and earnest money would be liable to be forfeited---In view of the admission made in the statement of P.W.1, the plaintiff that agreement provided for a date of terminus a quo, under Art. 113 of the Limitation Act, suit could be instituted only within three years from the date which the parties had agreed for the completion of the deal---In the present case, the suit was filed after more than five years and seven months from the date fixed in the agreement for payment of balance consideration which was obviously barred by time and it was rightly so concluded by the courts below to be so, which findings did not suffer from any error of law or from any misreading of record---In the present case, after considering all said material facts, the Court below rightly concluded that the petitioner was not entitled to seek specific performance of the agreement---No error of law, misreading and non-reading of evidence or any jurisdictional defect was noticed in the impugned judgements passed by both the Courts below to call for interference---Revision petition was dismissed , in circumstances.

(b) Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement to sell---Discretionary relief---Balance sale consideration---Buyer's willingness and readiness to make payment(s), absence of---Petitioner' suit was concurrently dismissed---Validity---For the relief of specific performance, which is discretionary in its nature, the petitioner was expected to prove that he was ready and willing to perform his part of agreement from the date of its execution till the date fixed for payment of balance sale consideration; and also had to prove that he did take necessary steps for the performance of his part---Record revealed that the petitioner could not prove having ever paid or tendered for payment the balance amount of consideration nor produced any documentary evidence such as cheque, pay order, for payment of balance consideration---So much so, after the filing of suit till the filing of appeal no attempt was made to deposit the balance sale price---It was, therefore, a case in which the discretionary jurisdiction could not be exercised in his favour and was rightly declined by the Courts below---Buyer's primary obligation in a contract of sale is to make payment of the balance sale consideration as stipulated in the contract and that if the seller refuses to receive payment the buyer must establish that he had the required money which was kept aside for the seller, for instance, by making a pay order or cashier cheque in his name as this would show that the buyer no longer had access to the sale consideration and that alternatively the buyer could have deposited it in court---If a buyer does not fulfill its primary obligations to secure/tender the sale consideration and files suit and does so without depositing the sale consideration in court, the seller is placed in an advantageous position---In the present case, after considering all said material facts, the Court below rightly concluded that the petitioner was not entitled to seek specific performance of the agreement---No error of law, misreading and non-reading of evidence or any jurisdictional defect was noticed in the impugned judgements passed by both the Courts below to call for interference---Revision petition was dismissed, in circumstances.

Nazar Hussain and another v. Syed Iqbal Ahmad Qadri (Deceased) through his L.Rs. and another 2022 SCMR 1216 ref.

Imtiaz Hussain Khan Baloch for Petitioner.

Haider Ali Khan for Respondent.

2025 C L C 650

[Lahore]

Before Shahid Karim, J

SHAH JAHAN and another ---Petitioners

Versus

PROVINCE OF PUNJAB and others ---Respondents

W.P. No. 76524 of 2022, heard on 6th March, 2023.

Land Acquisition Act (I of 1894)---

----S. 4---Nature of land, changing of---Agricultural and forest land---Establishing office buildings---Petitioners assailed notification of acquiring of land for the purposes of establishing offices of Divisional Headquarters over agricultural and forest land---Validity---Authorities failed to establish facts which would justify setting up of the project on an area which comprised agricultural and forest land---Authorities did not have any reasonable cause to change nature of forest land and carry out construction for setting up of a Divisional Headquarters---It was unjustified to cut trees which were standing on forest area and to change status of land used for flood mitigation in any manner---Act of authorities contravened holding of the High Court in case of Public Interest Law Association of Pakistan, W.P. No. 9429 of 2021 and case of Shah Zaman Khan, C.As. Nos. 329 to 346 of 2022, decided by Supreme Court--- High Court declared notification under section 4 of Land Acquisition Act, 1894 as well as acquisition proceedings in respect of land in question, as without lawful authority and of no legal effect---Constitutional petition was allowed in circumstances.

Public Interest Law Association of Pakistan v. Environmental Protection Agency Punjab through Director General and others W.P. No. 9429 of 2021 and Shah Zaman Khan v. Govt. of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others C.As Nos. 329 to 346 of 2022 (C.A. No. 329 of 2022) fol.

Shazib Masud, Jam Waseem Haider, Nabeel Rafaqat, Ch. Haseeb Ahsan Javed, Mian Faisal Naseer, Shahzad Ahmad Cheema, Ashiq Ali Rana, Ghulam Ahmad Ansari, Ch. Sabir Ali and Ali Raza for Petitioners.

Syed Kamal Ali Haider and Ms. Hina Hafeez Ullah Ishaq, Members of Commission.

Ms. Sheeba Qaiser, A.A.G. with Muhammad Ramzan, Law Officer Forest Department, Sehar Chaudhry, Law Officer Irrigation Department, Muhammad Nawaz Manika, Director Law EPA and Kashif Sajjan, Asst. Legal, EPA for Respondents.

2025 C L C 670

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

AKHTAR GUL (Deceased) through Legal Heirs ---Petitioners

Versus

MUHAMMAD ASHIQ and 7 others ---Respondents

Civil Revision No. 663-D of 2012, heard on 13th November, 2024.

(a) Qanun-e-Shahadat (10 of 1984)---

----Arts. 17(2) & 79---Specific Relief Act ( I of 1877 ), S. 12---Suit for specific performance---Marginal witnesses of agreement to sell, non-production of---Effect---Agreement to sell was attested by two persons but none of them was produced by the respondent to prove the genuineness of the agreement to sell---In terms of Art. 79 of the Qanun-e-Shahadat, 1984 ('the Order 1984') if a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive and subject to the process of the Court and capable of giving evidence---Thus, the respondent in view of Art. 79 of the Order, 1984 was bound to examine two marginal witnesses of the agreement in order to prove the same---In the present case, agreement to sell was not proved at all by the respondents/plaintiffs, as an agreement to sell an immovable property squarely falls within the purview of the provisions of Art. 17(2) of the Order, 1984 and has to be compulsorily attested by the two witnesses and this is sine qua non for the validity of the agreement---High Court set-aside impugned judgments and decrees passed by both the Courts below; consequently, suits instituted by the respondents stood dismissed---Revision filed by successors-in-interest of original owner of the suit-property was allowed, in circumstances.

Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187 ref.

(b) Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance---Cancellation of general power of attorney, non-assailing of---Effect---Original owner (predecessor-in-interest of petitioners) executed general power of attorney to sell suit-property---Stance of predecessor was that attorney being real estate agent assured that he would sell the suit-property at a better rate in presence of principal (owner) but on his betrayal/misusing the general attorney, it was cancelled after three months of its execution, thus, any agreement by the agent/attorney to alleged buyers was not binding on him(owner)---Suit for specific performance by alleged buyers was concurrently decreed---Contention of the respondent (attorney) was that as the power of attorney was coupled with agreement to sell, so it became irrevocable---Validity---Record revealed that regarding said contention, neither any claim was made by either of the respondents (attorney and alleged buyers) in their respective plaints nor they had called in question the validity of the deed of cancellation resulting into cancellation of general power of attorney---Even otherwise, the very agreement-to-sell was not proved, thus, assertion (that the general attorney was irrevocable) was precluded---High Court set-aside impugned judgments and decrees passed by both the Courts below; consequently, suits instituted by the respondents stood dismissed---Revision filed by successors-in-interest of original owner of the suit-property was allowed, in circumstances.

(c) Specific Relief Act ( I of 1877)---

----S. 12---Suit for specific performance---General power of attorney, cancellation of---Scope and effect---Original owner (predecessor-in-interest of petitioners) executed general power of attorney to sell suit-property---Stance of predecessor was that attorney being real estate agent assured that he would sell the suit-property at a better rate in presence of principal (owner) but on his betrayal/misusing the general attorney it was cancelled after three months of its execution, thus, any agreement by the agent/attorney to buyers (vendees) was not binding on him(owner)---Suit for specific performance by alleged buyers was concurrently decreed---Validity---Though the respondents/plaintiffs (vendees) had produced one of the attesting witnesses of alleged agreement to sell in support of their claim but this would not be sufficient enough to pave way for their claim as with the cancellation of general power of attorney by the original owner (predecessor-in-interest of petitioners),the attorney (respondent) would be left with no right or authority to alienate the suit property in favour of respondents (plaintiffs/buyers)---Plaint of respondents (plaintiffs/buyers) revealed that they entered into alleged sale transaction with respondent (attorney) on the very date when the general power of attorney was cancelled by predecessor-in-interest of the petitioners---Even otherwise, when the respondent/attorney failed to prove the agreement to sell in his favour, respondents (plaintiffs/buyers) would be precluded to claim any right or interest in the suit-property on the basis of any transaction, which was an offshoot of such agreement to sell or the deed of attorney, which was no more in field at the relevant time---High Court set-aside impugned judgments and decrees passed by both the Courts below; consequently, suits instituted by the respondents stood dismissed---Revision filed by successors-in-interest of original owner of the suit-property was allowed, in circumstances.

(d) Specific Relief Act ( I of 1877)---

----S. 12---Suit for specific performance---General power of attorney, cancellation of---Filing of suit by special/subsequent attorney under general power of attorney---Scope and effect---Original owner (predecessor-in-interest of petitioners) executed general power of attorney to sell suit-property---Stance of predecessor was that attorney being real estate agent assured that he would sell the suit-property at a better rate in presence of principal (owner) but on his betrayal/misusing the general attorney it was cancelled after three months of its execution, thus, any agreement by the agent/attorney to alleged buyers was not binding on him (owner)---Suit for specific performance by alleged buyers was concurrently decreed---Validity---Suit for specific performance was instituted by the (attorney) through his own attorney (respondent) at such time when the general power of attorney was already cancelled, so in that eventuality special power of attorney on the basis of which the respondent instituted the suit was no more in field as such suit was not proceedable at all but this important aspect had not been taken into consideration by either of the courts, while decreeing the suit---High Court set-aside impugned judgments and decrees passed by both the Courts below; consequently, suits instituted by the respondents stood dismissed---Revision filed by successors-in-interest of original owner of the suit-property was allowed, in circumstances.

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

----S. 115---Specific Relief Act (I of 1877), Ss. 12, 42 & 54---Concurrent findings of facts---Material flaws, observing of---Revisional powers of High Court---Scope---Consolidating the suits at the time of pronouncement of judgment---Effect---Intermingling the evidence recorded in both the suits---Parties claimed (declaration and specific performance) separately by filing their respective suits which were not consolidated, however, the Trial Court pronounced a common judgment as in consolidated proceeding---Validity---Record revealed that though initially suits were proceeded independently but, strangely, at the time of announcement of judgment both were consolidated and through a common judgment while intermingling the evidence recorded in both the suits the same were decreed, which was the outcome of gross misreading and non-reading of evidence---Scope of revisional jurisdiction is hedged in S. 115 of the Civil Procedure Code, 1908 (C.P.C.) and though ordinarily concurrent findings of facts are not disturbed but such findings are neither sacrosanct nor it is an inflexible rule that despite observing material flaws, the revisional court will abdicate to exercise its jurisdiction---Judgments passed by the courts below were not based on proper appraisal of evidence and the Civil Judge, while decreeing the suits of the respondents, had grossly misread the evidence---Appellate Court, while upholding the judgment and decree of Trial Court, committed a material irregularity---High Court under S. 115 of the C.P.C. is obliged and fully competent to correct such error in exercise of its revisional jurisdiction---Once it is established on the record that concurrent findings are fraught with legal infirmities, it becomes the bounden duty of court exercising revisional powers to curb and stifle such illegalities and material irregularities---High Court set-aside impugned judgments and decrees passed by both the Courts below ;consequently, suits instituted by the respondents stood dismissed---Revision filed by successors-in-interest of original owner of the suit-property was allowed, in circumstances.

Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) and another 2008 SCMR 428 and Imam Din and 4 others v. Bashir Ahmed and 10 others PLD 2005 SC 418 ref.

Khalid Mehmood Shahzaib Awan for Petitioner.

Malik Tallat Rasheed for Respondents Nos. 1 and 2.

Waqas Masood Khan for Respondents Nos. 3 to 5.

Malik Abdul Hafeez for Respondents Nos. 6 to 8.

2025 C L C 684

[Lahore]

Before Masud Abid Naqvi, J

IJAZ AHMAD KHAN ---Petitioner

Versus

MUHAMMAD BOOTAY KHAN deceased through legal heirs and others ---Respondents

Civil Revision No. 78446 of 2023, decided on 5th December, 2023.

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

----S. 12(2)---Fraud and misrepresentation---Applicant claiming no knowledge of decree being assailed---An application under S. 12(2), C.P.C., 1908, filed before the Appellate/District Court by a respondent (in decided appeal) was dismissed, against which dismissal revision was filed---Stance of the petitioner (applicant under S. 12(2) C.P.C.) was that he had no knowledge about the pendency of appeal as no notice/summon was served to him and neither he appeared before the Appellate/District Court nor appointed any counsel, hence, order and decree (passed in appeal) was result of fraud and mis-representation---Validity---Record contradicted said stance of the petitioner as his name was mentioned as respondent No.3 and his address was the same in (said decided)appeal as he had mentioned in his application under S. 12(2), C.P.C. and also in the present civil revision---Appellate/District Court issued notice to petitioner/applicant (being respondent) by adopting due process and even after publication of advertisement in newspaper but he did not appear before the Appellate / District Court and was ultimately proceeded against ex-parte and thereafter( on the basis of statements of the contesting parties), the appeal was accepted by modifying the judgment and decree of the Trial Court---All the parties to the suit and appeal were closely related to each other and close relatives of petitioner--- Hence, it could not be believed that petitioner was not aware of the proceedings in suit and appeal---Thus, the District Judge had rightly dismissed the application of the petitioner after properly discussing in detail the un-rebuttable facts of the case---No infirmity, legal or factual, had been pointed out in the impugned order---Revision was dismissed in limine, in circumstances.

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

----S. 12(2)---Limitation Act (IX of 1908), First Sched., Art. 181---Application under S. 12(2) C.P.C., 1908, filing of---Limitation---An application under S. 12(2) C.P.C., 1908 filed before the District Court by a respondent (in decided appeal) was dismissed, against which dismissal revision was filed---Stance of the petitioner (applicant under S. 12(2) C.P.C.) was that he had no knowledge about the pendency of appeal as no notice/summon was served to him and neither he appeared before the Appellate/District Court nor appointed any counsel, hence, order and decree (passed in appeal) was result of fraud and mis-representation---Validity---Pertinently, against the judgment and decree passed by the Appellate Court, one party (defendant) filed constitutional petition before the High Court wherein the petitioner was also impleaded as one of the respondents; notice was issued by the High Court which was personally served through process server to the petitioner after five months of passing of decree by District Court (notice-serving date) but the petitioner never appeared before the High/Court; said constitutional petition was later dismissed---Application under S. 12(2), C.P.C., was filed after five years of said notice-serving date to the petitioner which was dismissed being barred by limitation because period of limitation to file an application under S. 12(2), C.P.C. was three years from the date of knowledge of previous litigation, and the crucial starting point for the period of limitation would be when the right to apply accrued to the aggrieved applicant, which in case of an application under S. 12(2), of the C.P.C., would be the date when the impugned decision based on fraud and concealment was passed---In case the aggrieved person had, by means of fraud, been kept away from the knowledge of decision of the Court, he may then seek the extension of the commencing point of the period of limitation of three years from the date of decision under Art. 181 of the Limitation Act, 1908---Thus, the District Judge had rightly dismissed the application of the petitioner after properly discussing in detail the un-rebuttable facts of the case---No infirmity, legal or factual, had been pointed out in the impugned order---Revision was dismissed in limine, in circumstances.

Bashir Ahmed through Legal Representative and others v. Muhammad Hussain and others PLD 2019 SC 504; Faizum alias Toor v. Nander Khan and others 2006 SCMR 1931 and Fida Hussain v. Ghulam Sarwar 2002 SCMR 1554 ref.

(c) Limitation---

----Principles---Law of limitation is considered to be preventive in nature which serves as a major deterrent against the factors and elements which can affect peace, tranquility and due order of State and society and bar of limitation in litigation also brings forth valuable rights in favour of other party---Law of limitation requires that a person must approach a court of law and take legal remedies with due care, diligence and within the time provided by the law.

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

----S. 12(2)---Limitation Act (IX of 1908), First Sched., Art. 181---Application under S. 12(2) C.P.C., 1908, filing of---Limitation---Scope ---An application under S. 12(2) C.P.C., 1908 filed before the Appellate/District Court by a respondent (in decided appeal) was dismissed, against which dismissal revision was filed---Contention of the applicant/petitioner was that limitation was a mere technicality---Validity---Question of limitation cannot be termed to be a mere technicality and cannot be ignored while deciding cases---Thus, the District Judge had rightly dismissed the application of the petitioner after properly discussing in detail the un-rebuttable facts of the case---No infirmity, legal or factual, had been pointed out in the impugned order---Revision was dismissed in limine, in circumstances.

Mst. Musarat Parveen v. Muhammad Yousaf and others 2023 SCMR 1665; Messrs Pak Suzuki Motors Company Limited through Manager v. Faisal Jameel Butt and another PLD 2023 SC 482; Muhammad Anwar (decd) through L.Rs. and others v. Essa and others PLD 2022 SC 716; Abdul Sattar v. Federation of Pakistan and others 2013 SCMR 911 and Muhammad Islam v. Inspector General of Police, Islamabad and others 2011 SCMR 8 ref.

(e) Qanun-e-Shahadat (10 of 1984)---

----Art. 129(e)---Constitution of Pakistan, Art. 150---Civil Procedure Code (V of 1908), S. 12(2)---Limitation Act ( IX of 1908), First Sched., Art. 181---Application under S. 12(2) C.P.C., 1908, filing of---Fraud and mis-representation---Judicial proceedings, authenticity of---An application under S. 12(2) C.P.C., 1908, filed before the District Court by a respondent (in decided appeal) was dismissed, against which dismissal revision was filed---Plea of the petitioner (applicant under S. 12(2) C.P.C.) was that he had no knowledge about the pendency of appeal as no notice/summon was served to him and neither he appeared before the Appellate/District Court nor appointed any counsel, hence, order and decree (passed in appeal) was result of fraud and mis-representation---Validity---Applicant/petitioner had alleged fraud and representation against the respondents without any solid proof---Mere allegation, not supported by any material, would not invariably warrant inquiry or investigation---Said facts negated the claim/ground as written in application for setting aside the impugned judgment---Therefore, any plea being raised by the petitioner/applicant at present/later stage had no force---Petitioner/applicant failed to satisfy the judicial conscious of the Court as presumption of truth was attached to the record of the Court under Art. 129(e) of the Qanun-e-Shahadat Order, 1984 and Art. 150 of the Constitution---Authenticity of the judicial record cannot be doubted without any solid proof and only on the oral arguments of the counsel/applicant/party---Petitioner/applicant had not been able to point out any plausible ground due to which he was seeking to set aside the impugned order, hence, he was not entitled to any relief---Once the dispute is settled, the same cannot be allowed to be set at naught through a malafide act of the aggrieved party---Thus, the District Judge had rightly dismissed the application of the petitioner after properly discussing in detail the un-rebuttable facts of the case---No infirmity, legal or factual, had been pointed out in the impugned order---Revision was dismissed in limine, in circumstances.

2025 C L C 727

[Lahore]

Before Jawad Hassan, J

MUHAMMAD IQBAL GILL and others ---Petitioners

Versus

NASIR ABBAS and others ---Respondents

C. R. No. 6830 of 2023, heard on 6th November, 2024.

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

----S. 96 & O.XLI, R.27---Decision of application for additional evidence under O.XLI, R. 27, C.P.C., and the main appeal on the same day---Legality---Contention of the respondents was that appellate court was not obliged to decide the application for additional evidence prior to deciding the main appeal---Validity---During the course of pendency of a miscellaneous application, such as an application under O.XLI, R.27, C.P.C., for production of additional evidence in an appeal, it is imperative for the Appellate Court to first decide the said application before delving into the merits of the appeal---Such procedural requirement is not merely a technical formality, but a critical component of ensuring that justice is served fairly and equitably---Failure to resolve such a pending application prior to rendering a final decision on the appeal leads to a procedural irregularity that invalidates the entire appellate process, as it deprives the parties of their right to a fair and impartial hearing---Law unequivocally mandates that all pending miscellaneous applications must be disposed of before addressing the main case, as the non-disposal of such applications creates an imbalance and potentially prejudices the case of the concerned party---Joint decision, where both the miscellaneous application and the appeal are decided together, without first addressing the application separately, undermines the fairness of the judicial proceedings, as it gives undue weight to the appeal and may result in the improper rejection of the application---Decision of both the application and the appeal simultaneously denies the parties an opportunity to properly argue and substantiate their respective positions regarding the additional evidence, which is a fundamental breach of the principles of justice and procedural propriety---Civil revision was allowed, in circumstances.

Muhammad Azam v. Muhammad Abdullah through LRs 2009 SCMR 326; Mst. Imtiaz Begum v. Mst. Sultan Jan and others 2008 SCMR 1259; Muhammad Umer v. Muhammad Qasim and another 1991 SCMR 1232; Mst. Ghulam Fatima and others v. Pahar Khan and others 2024 CLC 1538; Abdul Jabbar Shahid and others v. National Bank of Pakistan and others PLD 2019 Lahore 76; Azra Manzoor Aureshi v. Faysal Bank Limited and 2 others 2005 CLD 1417; Khair Deen v. Rehm Deen and 4 others 1996 CLC 1731; Muhammad Yaqub v. Baqir and 2 others 1993 CLC 1319; Rehmat Ali Khokhar v. Mst. Sardaran Bibi and 15 others PLD 1986 Lahore 283; Muhammad Hussain v. Bulleh Khan 1980 CLC 608 and Pak Carpet Industries Limited v. Government of Sindh and 2 others 1993 CLC 334 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---High Court has to analyze the allegations of jurisdictional error, such as the jurisdiction that is vested in it by law was not exercised, and/or the court has acted in exercise of its jurisdiction illegally or with material irregularity, or committed some error of procedure in the course of the trial which is material and has affected the ultimate decision.

Haji Musharraf Mahmood Khan (deceased) through L.Rs. v. Sardarzada Zafar Abbas (deceased) through L.Rs. and others PLD 2024 SC 588 rel.

Ch. Rashid Abdullah for Petitioners.

Ch. Sarfraz Ali Dial for Respondents.

2025 C L C 760

[Lahore]

Before Sultan Tanvir Ahmad, J

Messrs POPULAR SUGAR MILLS LIMITED ---Petitioner

Versus

DISTRICT COLLECTOR, SARGODHA and 2 others ---Respondents

Writ Petition No. 40356 of 2019, decided on 5th December, 2023.

Punjab Land Revenue Act (XVII of 1967)---

----S. 42--- Companies Ordinance (XLVII of 1984) (since repealed), Ss.39 & 40(1)---Companies Act (XIX of 2017), S. 13 (3)---Record of Rights---Change of name of 'person'---Effect---Petitioner company was aggrieved of order passed by revenue authorities refusing to incorporate change of its name and had treated the same as sale in favour of petitioner---Validity---Provision of S. 42 of Punjab Land Revenue Act, 1967 reflects that the same is applicable on acquiring of any right as land owner or a tenant---Words "a person" in S. 42 of Punjab Land Revenue Act, 1967 further clarifies that the Legislature has envisaged acquisition of any right or interest as land-owner or a tenant from one person to another---Dispute had arisen when request was made to revenue authorities to incorporate the change in name of the company from "National Sugar Industries Limited" to "Popular Sugar Mills Limited", which change had already been permitted by Registrar of the Companies, under Ss. 39 and 40 of Companies Ordinance, 1984---Mere change of name did not change legal status of petitioner company or its distinct personality and such change entailed no difference to rights or obligations---High Court set aside order passed by revenue authorities as application or request to incorporate change of name was not a sale---Constitutional petition was allowed accordingly.

Asghar Ali v. P.K. Shahani and 2 others 1992 CLC 2282; Habib Safe Deposit Vault (Pvt.) Ltd. v. Province of Sindh through Secretary, Ministry of Revenue and 2 others 2015 PTD 1863; Bhoruka Engineering Inds. Ltd. v. The Deputy Commissioner of Income Tax I.T.A. No. 120 of 2011; Reckitt Benckiser (India) Private Limited v. State of H.P. and others C.W.P. No. 1293 of 2019; Inox Air Products Pvt. Ltd. v. State of H.P. and others C.W.P. No. 3166 of 2016; Bacha F. Guzdar v. Commissioner of Income Tax, Bombay Civil Appeal No. 104 of 1953; Cyrus Cowasjee and 2 others v. Karachi Metropolitan Corporation through Administrator, Karachi PLD 2022 Sindh 106; Aron Salomon (Pauper) v. A. Salomon and Company Limited 1897 AC 22, HL; Lee v. Lee's Air Farming Ltd. 1960 3 All E.R = 1961 AC 12, PC; State of West Bengal and others V. Gopi Vallabh Solutions Private Limited and others CAN 6652 of 2018 in MAT 869 of 2018; Hira Textile Mills Ltd. through Director v. Executive District Officer (Revenue), Kasur and 4 others 2009 CLD 839; Salfi Textile Mills Limited and another v. City District Government of Karachi through D.C.O. and another 2013 CLD 2120; Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad 2012 SCMR 730; Ghulam Sarwar v. National Bank of Pakistan and others 2007 CLD 530; Collector of Customs, Lahore and others v. Universal Gateway Trading Corporation and another 2005 SCMR 37; Dr. Abdul Nabi, Professor, Department of Chemistry, University of Balochistan, Sariab Road, Quetta v. Executive Officer, Cantonment Board, Quetta 2023 SCMR 1267 and Haji Noorwar Jan v. Senior Member, Board of Revenue, N.W.F.P. Peshawar and 4 others PLD 1991 SC 531 ref.

Dr. Muhammad Farogh Naseem, Senior Advocate Supreme Court and Haq Nawaz Chattha, Advocate Supreme Court for Petitioner.

Ms. Samia Khalid, Additional Advocate General and Salman Asif Warraich, Assistant Advocate General with Ch. Rab Nawaz, Assistant Commissioner and Ijaz Ahmad, Tehsildar/Sub-Registrar Kot Momin for Respondents.

2025 C L C 785

[Lahore (Multan Bench)]

Before Anwaar Hussain, J

SABIR HUSSAIN ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE/MCAC, Layyah and others ---Respondents

Writ Petition No. 993 of 2022, heard on 30th January, 2024.

(a) Qanun-e-Shahadat (10 of 1984)---

----Art. 84---Specific Relief Act (I of 1877), S. 12---Suit for specific performance---Application for comparison of signatures and/or thumb impression through expert---Scope---Plaintiff filed an application for comparison of thumb impressions of defendants on the agreement with their specimen/admitted thumb impressions, which was dismissed by the Trial Court, and revision filed against said dismissal order was also dismissed by the District Court---Ground for dismissal was that report of the finger expert is a corroborative piece of evidence and the application had been filed by the plaintiff /petitioner at belated stage just to linger on the trial ,hence, the same could not be allowed---Validity---Admittedly, the suit-property was allotted by the Government to predecessor-in-interest of defendants/respondents and after demise of said predecessor-in-interest, they (defendants/respondents) were in occupation thereof---Suit was instituted by the petitioner on the basis of the agreement purportedly executed by respondents/defendants including one, who was a minor at the time of execution of the agreement---As the execution of agreement was outrightly denied by respondents, case of the petitioner depended upon proving the agreement through which the suit property had allegedly been sold by respondents to the petitioner---Object for production of evidence is assistance to the Courts to reach a just conclusion and an application for comparison of thumb impression is one such mode---Only hinderance in not allowing the application could be if the plaintiff intended to fill in the lacunae of his case after the conclusion of evidence---In the present case, the respondent side had failed to point out any such effort on part of the petitioner---There appeared to be no harm to either side if comparison of thumb impression was made---In fact, the said exercise would be appropriate and in the interest of justice to reach a fair conclusion and render a just and proper decision, even at the cost of some delay in conclusion of the trial---For a Court of law, rendering a fair and just decision is more important than to act hurriedly by drawing a wrong conclusion---Mere fact that application for comparison of thumb impression had been moved at the stage when the entire evidence has been recorded is not a cogent reason to dismiss the application---In said regard, notably, no time has been stipulated in terms of Art. 84 of the of Qanun-e-Shahadat, 1984, for filing the application for comparison of the signatures and/or thumb impression through expert---High Court set-aide the impugned orders passed by the Courts below, as a consequence, application of the petitioner for conducting comparison of the thumb impression and/or signatures of respondents, was accepted---Constitutional petition was allowed accordingly.

Ghulam Haider v. Fateh Muhammad 2005 MLD 1501 ref.

(b) Qanun-e-Shahadat (10 of 1984)---

----Art. 84---Application for comparison of signatures and/or thumb impression through expert---Scope---It is the right of a litigant to seek indulgence of the Court so as to discharge the burden of proof placed upon him including comparison of disputed thumb impressions---It is the right of a party to seek and demand every possible assistance from the Courts of law and to hold him/herself responsible only when he or she has acted contrary to law.

Mst. Akhtar Begum v. Muslim Commercial Bank Ltd. 2009 SCMR 264 ref.

(c) Qanun-e-Shahadat (10 of 1984)---

----Art. 84---Specific Relief Act (I of 1877), S. 12---Suit for specific performance---Application for comparison of signatures and/or thumb impression through expert---Scope---Plaintiff filed an application for comparison of thumb impressions of defendants on the agreement with their specimen/admitted thumb impressions, which was dismissed by the Trial Court, and revision filed against said dismissal order was also dismissed by the District Court---Ground for dismissal was that the report of the finger expert was a corroborative piece of evidence and the application had been filed by the plaintiff /petitioner at belated stage just to linger on the trial ,hence, the same could not be allowed---Validity---Record revealed that when the evidence was recorded, one of the defendants/respondents while appearing as a witness for defendant-side, candidly conceded that they (respondents) would have no objection if their (respondents) signatures were sent to the finger expert for comparison---Both the Courts below had ignored said aspect of the case---In order to ensure that correct conclusion was reached in the present matter, the Court could look around for evidence of un-impeccable caliber such as finger expert, more particularly, when there was a complete denial on part of the respondents/defendants that they had not affixed their thumb impression on the agreement---It was in the interest of justice that the petitioner be allowed to prove his stance by having recourse to the forensic science/handwriting expert---High Court set-aide the impugned orders passed by the Courts below ,as a consequence, application of the petitioner for conducting comparison of the thumb impression and/or signatures, of respondents, was accepted---Constitutional petition was allowed accordingly.

Syed Sharif ul Hassan through L.Rs. v. Hafiz Muhammad Amin and others 2012 SCMR 1258 and Mst. Afzala Virks v. Mian Fazal Haq (decd) thr: L.Rs. and another Civil Appeal No. 787 of 2017 ref.

(d) Qanun-e-Shahadat (10 of 1984)---

----Art. 84---Specific Relief Act (I of 1877), S. 12---Suit for specific performance---Application for comparison of signatures and/or thumb impression through expert---Scope---Plaintiff filed an application for comparison of thumb impressions of defendants on the agreement with their specimen/admitted thumb impressions, which was dismissed by the Trial Court, and revision filed against said dismissal order was also dismissed by the District Court---Ground for dismissal was that report of the finger expert was a corroborative piece of evidence and the application had been filed by the plaintiff/petitioner at belated stage just to linger on the trial, hence, the same could not be allowed---Argument of respondents was that allowing the petitioner to effect comparison of thumb impression of the respondents was likely to result into injustice in so far as one defendant/respondent No.5, was minor at the time of alleged execution of the agreement---Validity---Even if it was proved that alleged thumb impression of said minor respondent on the agreement was genuine, the same would merely go on to prove (or otherwise) the execution of the agreement without having any bearing on the competency of the said respondent who was admittedly minor at the time of execution of the agreement as the competency to contract is a question of law and is to be decided by the Trial Court on the basis of applicable law and not on the basis of the report of the finger expert---Therefore, argument of respondents had no force---High Court set-aide the impugned orders passed by the Courts below, as a consequence, application of the petitioner for conducting comparison of the thumb impression and/or signatures, of respondents, was accepted---Constitutional petition was allowed accordingly.

(e) Qanun-e-Shahadat (10 of 1984)---

----Art. 84---Specific Relief Act (I of 1877), S. 12---Suit for specific performance---Application for comparison of signatures and/or thumb impression through expert---Scope---Plaintiff filed an application for comparison of thumb impressions of defendants on the agreement with their specimen/admitted thumb impressions, which was dismissed by the Trial Court, and revision filed against said dismissal order was also dismissed by the District Court---Ground for dismissal was that report of the finger expert was a corroborative piece of evidence and the application had been filed by the plaintiff/petitioner at belated stage just to linger on the trial ,hence, the same could not be allowed---Validity---Had the petitioner failed to seek comparison of signature, through expert evidence, in the face of express and outright denial as to the execution of the agreement, the same might propel the Trial Court and also the higher forums to harbour adverse inference against the petitioner/plaintiff---Therefore, non-acceptance of the application of comparison of thumb impression would lead to miscarriage of justice and thwart the Trial Court in reaching a just conclusion, which is not permissible under the law and will defeat ends of justice---High Court set-aide the impugned orders passed by the Courts below ,as a consequence, application of the petitioner for conducting comparison of the thumb impression and/or signatures of respondents, was accepted---Constitutional petition was allowed accordingly.

Mehmood Ashraf Khan for Petitioner.

Syed Athar Hassan Shah Bukhari for Respondents Nos. 3 to 10.

Ms. Samina Mehmood Rana, Assistant Advocate General for Respondent No. 11.

Respondent No. 12 proceeded ex parte vide order dated 18-1-2024.

2025 C L C 797

[Lahore]

Before Shahid Bilal Hassan, J

CHAIRMAN, NATIONAL HIGHWAY AUTHORITY through General Manager and another ---Appellants

Versus

ABDUL HAMEED and another ---Respondents

F.A.O. No. 5549 of 2023, heard on 13th February, 2024.

Civil Procedure Code (V of 1908)---

----O. V, Rr.19 & 20---Mode of service to summon defendant(s)---Substituted service, resorting to---Scope---Examination of service officer---Scope---Appellant/defendant assailed ex-parte proceeding/decree as the Trial Court rejected application to set-aside the same---Validity---Record divulged that the Trial Court ordered to issue notices to the appellants (National Highway Authority) subject to deposit of process fee and Talbana by the plaintiff (land-owner/respondent) but the same was not deposited despite grant of different dates and the Trial Court without considering the same resorted to substituted service through publication of court notice in the newspaper---Even if it is presumed that the process purportedly issued for the service upon the appellants was served or refused to be accepted, the Trial Court, before resorting to substituted service under R. 20 of O. V, Code of Civil Procedure, 1908 (C.P.C.), could satisfy itself by recording statement of the process server as required under R. 19 of the O. V of the C.P.C.---When the position remained as such, the act of the Court in resorting to substituted service could not be said to be more than an illegality and nullity in the eye of law---It is a settled principle of law that unless all efforts to effect service in the ordinary manner are verified to have failed, substitute service cannot be resorted to---Thus, the orders for substitute service were passed in a mechanical fashion and without proper application of mind---Such orders were passed without ascertaining the reasons for non-service and without verifying the factum as to whether all other modes of service were exhausted and were rendered futile---In such circumstances the substituted service being in violation of the law/Rule could not be deemed to be valid service---Therefore, when the basic order for initiating ex-parte proceedings against the appellants had no backing of law and had been passed without adopting due process of law, the superstructure and edifice built thereon i.e. subsequent ex-parte decree could not stand because if the same was allowed to hold field, it would definitely infringe the appellants' inalienable right of defending the case and would amount to condemning the appellants without affording an opportunity of hearing---Said fact was sufficient to condone the delay in filing the application under O. IX, R. 13, C.P.C.---High Court set-aside impugned judgment and decree and ex-parte proceeding order; consequently, the application under O. IX, R. 13, Code of Civil Procedure, 1908, moved by the appellants stood allowed, and Trial Court was directed to proceed with the reference after obtaining reply from the appellant and conclude the same---Appeal , filed by Acquiring Agency, was allowed, in circumstances.

Mrs. Nargis Latif v. Mrs. Feroz Afaq Ahmed Khan 2001 SCMR 99 and Haji Akbar and others v. Gul Baran and 7 others 1996 SCMR 1703 ref.

Azmat Hayat Khan Lodhi and Hafiz Sohaib Raza Advocates with Muhammad Ali, D.D. Legal NHA for Appellants.

Hafiz Shaukat Ali Wains for Respondents.

2025 C L C 813

[Lahore]

Before Jawad Hassan, J

NASEEM BIBI and 2 others ---Petitioners

Versus

IMRAN QAYYUM and 2 others ---Respondents

Writ Petition No. 57227 of 2024, heard on 29th October, 2024.

(a) Punjab Partition of Immovable Property Act, 2012 (IV of 2013)---

----Ss. 4, 9 & 10(2)---Constitution of Pakistan, Arts.4 & 10-A-Suit for partition---Joint property---Internal auction proceedings in absence of co-sharers/co-owners-Legality---Principle of natural justice---Fair trial under the due process of law---Contention of the petitioners/defendants was that procedural requirements as envisaged in Ss.9 & 10 of the Punjab Partition of Immovable Property Act, 2012 (Act) had not been fulfilled while initiating internal auction proceedings---Validity---Trial Court had not adhered to the mandatory requirements of S.10(2) of the Act, which necessitated the presence of co-owners in person or through their authorized agents during the internal auction proceedings, which process was not followed properly, including the determination of the reserve price and the procedure of submitting offers by co-owners in accordance with law---Petitioner's contention that the respondents had failed to pay their share and had sought to evict the petitioners from their ancestral property was a matter that required careful consideration, as it involved the rights of vulnerable parties---Principles of 'Audi Alteram Partem' and 'Actus Curiae Neminem Gravabit', as well as Arts. 4 and 10-A of the Constitution were central points of the case---Maxim Audi Alteram Partem ensured that no party shall be condemned unheard, mandating that all parties affected by judicial proceedings must be given a fair opportunity to present their case, while Actus Curiae Neminem Gravabit dictates that no one should suffer as a result of a judicial error or omission---Article 10-A of the Constitution guarantees the right to a fair trial and due process, enshrined as a fundamental right, and Article 4 affirms that every citizen is to be treated in accordance with law, with no action taken to their detriment except as per the law---Orders passed by the Trial Court were illegal and unlawful, having violated the procedural requirements under S.10(2) of the Act---Failure to ensure the presence of all co-owners or their authorized agents during the internal auction proceedings, along with the absence of a properly determined reserve price and the lack of opportunity to submit written offers, had deprived the petitioners of their constitutional right to a fair hearing and due process and these procedural irregularities not only undermined the legality of the orders but also violated the principles of natural justice and procedural fairness---Constitutional petition was allowed, in circumstances.

Faqir Muhammad v. Khursheed Bibi and others 2024 SCMR 107 and Federation of Pakistan through Secretary Finance, Islamabad and another v. E-Movers (Pvt.) Limited and another 2022 SCMR 1021 rel.

(b) Administration of justice---

----Where a law requires a thing to be done in a particular manner it should be done in that manner as anything done in conflict with command of law shall be unlawful and prohibited.

Khalid Saeed v. Shamim Rizvan and others 2003 SCMR 1505; Government of the Punjab, Food Department through Secretary Food and another v. Messrs United Sugar Mills Limited and another 2008 SCMR 1148; Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 and Ghulam Fareed and another v. Sher Rehman through L.Rs 2016 SCMR 862 rel.

(c) Administration of justice---

---Act of court prejudicing rights of the parties---Maximum 'Actus curiae neminem gravabit'---Scope---Act of court should not cause prejudice to the rights of the parties, which finds its basis in old latin maxim 'actus curiae neminem gravabit'.

Faqir Muhammad v. Khursheed Bibi and others 2024 SCMR 107; Federation of Pakistan through Secretary Finance, Islamabad and another v. E-Movers (Pvt.) Limited and another 2022 SCMR 1021 and Muhammad Aslam (deceased) through L.Rs and another v. Molvi Muhammad Ishaq (deceased) through L.Rs and others 2024 SCMR 1390 rel.

(d) Constitution of Pakistan---

----Art .10-A---Fair trial and due process---Right to be heard---'Audi Alteram Partem', principle of---Affected person should not be condemned unheard and should be allowed opportunity of hearing in case any order is passed against him/her.

Muhammad Aslam v. Member (Colonies) Board of Revenue Punjab Lahore and others 2019 CLC 1141 and Muhammad Nasrullah Khan v. Pakistan Electronic Media Regulatory Authority through Chairman and others PLD 2019 Lah. 486 rel.

Agha Abu-al-Hassan Arif, Advocate Supreme Court for Petitioners.

Safdar Ali Bhatti for Respondents Nos. 1, 2, 7 and 9.

Javaid Akhtar with Arzoo Sarwat for the Respondents Nos. 3, 4 and 6.

Nemo for the remaining Respondents.

2025 C L C 832

[Lahore]

Before Shakil Ahmad, J

MUHAMMAD ARIF MALIK ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 2 others ---Respondents

Writ Petition No. 12218 of 2022, heard on 8th May, 2024.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss. 15 & 19---Transfer of Property Act (IV of 1882), Ss.58 & 100---Ejectment petition---Relationship of landlord and tenant not established---Simultaneous execution of mortgage and tenancy agreement through a single document by the mortgagor without having any title over the premises in dispute in favour of the respondent, who let the mortgagor retain the possession subject to payment of rent---Denial of relationship of landlord and tenant by the petitioner---Courts below held the respondent entitled for payment of arrears of rent---Validity---Relationship between the respondent and mortgagor at the most was that of mortgagor and mortgagee and the same could hardly be considered as relationship between a landlord and tenant---Agreements i.e. one to mortgage the property and second to lease out the property were mentioned in one and the same document and an irresistible and vivid conclusion that could be drawn therefrom would be that lease deal was coined merely for the purpose of realizing the interest due on mortgage money, therefore, the amount agreed to be paid as rent could hardly be counted and considered as a rent payable by the tenant to the landlord---Amount that was shown to be received by the respondent was a certain sum of amount to be received for the consideration of amount that was lent to mortgagor, therefore, said amount could hardly be considered as rent amount to be paid by the mortgagor to the mortgagee for the simple reason that the mortgagor still was the owner of the property---A person cannot be the owner and the tenant at the same time---Simultaneous execution of mortgage and lease by the mortgagor was justifiably considered as mechanism/mode for the purposes of realizing due interest on the mortgage money and in such eventuality no relationship of landlord and tenant would come into existence as the lease deed in fact was a device to recover interest on loan---No amount was to be paid as rent more particularly when respondent was not landlord and neither mortgagor nor the petitioner (being legal heir of mortgagor) was tenant as per the provisions of the Punjab Rented Premises Act, 2009---No relationship of landlord and tenant existed between respondent and the mortgagor, thus, lower courts had got no jurisdiction to either proceed in the matter or pass impugned order and judgments---Constitutional petition was allowed, in circumstances.

Mst. Maqbool and others v. Samandar Khan PLD 1969 Pes. 216 and Syed Jamal-ud-Din v. Syed Mobashar Hussain Shah PLD 1976 Lah. 187 ref.

Samandar Khan v. Mst. Maqbool and others 1974 SCMR 388; Kareem Bakhsh and others v. Noor Muhammad and others PLD 2011 Lah. 249 and Muhammad Abdullah v. Abdul Jabbar PLD 1967 Lah. 1000 rel.

(b) Transfer of Property Act (IV of 1882)---

----Ss. 58 & 100---Mortgage---Creation of charge---Scope---Agreement to mortgage does not create charge.

Patelkhana Venkataramasami and another v. Imperial Bank of India Rajahmundry and others AIR 1938 Madras 889 and Hukamchand Kasliwal and another v. Radha Kishen Moti Lal Chamaria and others AIR 1930 Privy Council 76 rel.

(c) Transfer of Property Act (IV of 1882)---

----Ss. 58 & 100---Mortgagor---Competency to enter with agreement---Mortgagor was not owner of the subject property, thus, was not competent to enter into any agreement of mortgage---Entries in the record pertaining to PT-I in no way confer ownership rights---No one can transfer a better title than what he himself possesses as expressed by the maxim "nemo dat quod non habet"---No mortgage can legitimately be created in respect of property, the title/ownership whereof does not vest in the mortgagor as the mortgagor does not have any explicit authority to create charge upon such property.

V.E.R.. M.A.R Chettyar Firm v. Ma Joo Teen and others AIR 1933 Rang 299; Messrs Bolan Bank Limited through Attorney v. Messrs Al-Aslam International through Proprietor and another 2002 CLD 702 and Australasia Bank Ltd. v. Faruaui House Building Corporation Ltd. and 2 others PLD 1975 Kar. 870 rel.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope----Where the orders passed by the courts below suffer from some legal error or jurisdictional defect, High Court can conveniently invoke the jurisdiction under the provisions of Art. 199 of the Constitution and set aside the impugned order and decrees as being passed in exercise of jurisdiction not vested in the courts below.

United Bank Limited (UBL) through its President and others v. Jamil Ahmed and others 2024 SCMR 164 rel.

Ch. Muhammad Ishaq Khokar and Malik Nisar Ahmad for Petitioner.

Muhammad Javed Butt for Respondent No. 3.

2025 C L C 866

[Lahore (Multan Bench)]

Before Asim Hafeez, J

Syed ALI RAZA RIZVI and 33 others ---Petitioners

Versus

COMMISSIONER, D.G. KHAN DIVISION and 10 others ---Respondents

Writ Petition No. 1355 of 2024, decided on 11th March, 2024.

(a) Land Acquisition Act (I of 1894)---

----Ss. 4, 5, 5-A, 6, 9, 17(1)(2) & 17(4)---Acquisition of land---Case of urgency---Violation of acquisition process, allegation of---Petitioners (landowners) invoked constitutional jurisdiction of the High Court assailing land acquisition process for the development of Peak Capacity Solar PV Project to be acquired by National Transmission and Dispatch Company (NTDC) (the company tasked with the assignment of implementation of the project)---Objection raised regarding the effect of issuance of notices under S. 9 of the Land Acquisition Act, 1894 ('the Act 1894'), after the expression of urgency was conveyed and materialized in shape of the Notification under S. 17(4) of the Act 1894---Validity---Subsection (1) of S. 17 of the Act, 1894 transpired that the Commissioner was assigned the lead role and upon Commissioner's directions, the Collector was competent to take possession of the land after passing of fifteen days, from the publication of the notice under S. 9(1) of the Act 1894---Notwithstanding the fact that notice under S. 9 of Act, 1894 was issued after Notification under S. 17(4) of the Act 1894, no infringement of the statutory command was evidently committed---Petitioners had the opportunity to file objections after the notices issued under Ss. 9 & 10 of the Act, 1894, but their ambition was to knock-down the purpose of acquisition, which purpose had to fail---Constitutional petition, filed by land-owners, was dismissed, in circumstances.

(b) Land Acquisition Act (I of 1894)---

----Ss. 4, 5, 5-A, 6, 9, 17(1)(2) & 17(4)---Acquisition of land---Case of urgency---Violation of acquisition process, allegation of---Petitioners (landowners) invoked constitutional jurisdiction of the High Court assailing land acquisition process for the development of Peak Capacity Solar PV Project to be acquired by National Transmission and Dispatch Company (NTDC), (the company tasked with the assignment of implementation of the project)---Objection raised was that Notification under Ss. 17(4) & 6 of the Act, 1894, was issued by non-relevant Commissioner (Rawalpindi) and not by the concerned Commissioner (Dera Ghazi Khan)---Validity---Notification in question started with the sentence that "Whereas it appears to the Commissioner Dera Ghazi Khan ………"---Notification was signed by the Commissioner, with other signatories, which, inter alia, included the District Collector, Land Acquisition Collector and the Engineer; this lent credence to the argument regarding typographical mistake in mentioning Commissioner Rawalpindi, once, in the Notification---Constitutional petition, filed by land-owners, was dismissed, in circumstances.

(c) Land Acquisition Act (I of 1894)---

----Ss. 4, 5, 5-A, 6, 9, 17(1)(2) & 17(4)---Constitution of Pakistan, Art. 199---Acquisition of land---Case of urgency---Violation of acquisition process, allegation of---Judicial review---Scope---Petitioners (landowners) invoked constitutional jurisdiction of the High Court assailing land acquisition process for the development of Peak Capacity Solar PV Project to be acquired by National Transmission and Dispatch Company (NTDC) (the company tasked with the assignment of implementation of the project)---Held, that it was not for the High Court to review or assess as to what was the urgency to take possession, which assessment had to be made by the Commissioner---In fact, the opinion expressed by the Commissioner and assessment of element urgency for the purposes of taking possession of the land called for showing deference---Nothing was alleged that how composite Notification under Ss. 17(4) & 6 of the Act 1894 had prejudiced the petitioners and upon issuance of Notification under reference, Ss. 5 & 5-A of the Act, 1894 had no application---There was no occasion, in the circumstances of the case, to undermine the concept of eminent domain and jurisprudence developed vis-à-vis "the taking clause", which acknowledged the right to fair and just compensation against the acquisition of land for public purpose---Nothing was pleaded with regard to alleged denial of compensation and right to disagree to the quantum of compensation determined or to seek enhancement thereof was neither prejudiced nor denied---Hence, no cause was apparently available to invoke judicial review jurisdiction---Once land was required for public purpose, interference by exercising judicial review jurisdiction tantamount to throwing spanner in the works---Constitutional petition, filed by the landowners was dismissed, in circumstances.

Kareem Nawaz and 4 others v. District Collector/Deputy Commissioner Multan and 14 others PLD 2023 Lah. 1 distinguished.

(d) Elections Act (XXXIII of 2017)---

----S. 230---Land Acquisition Act (I of 1894), Ss. 4 & 17(4)---Acquisition of land---Case of urgency---Violation by Caretaker Government, allegation of---Petitioners (landowners) invoked constitutional jurisdiction of the High Court assailing land acquisition process asserting violation of S. 230 of the Elections Act, 2017---Validity---No significant procedural defect, misuse or abdication of authority and illegality in exercise of powers was established---No question of violation of S. 230 of the Elections Act, 2017, arose when Notification under S. 4 and Notification under section 17(4) of Land Acquisition Act, 1894 ('the Act 1894'), were issued before assumption of control by Caretaker Government at federal level---Land was acquired for the National Transmission and Dispatch Company (NTDC)/, the Company, which was tasked to undertake a project having benefits and advantages for the public---Constitutional petition, filed by land-owners, was dismissed, in circumstances.

Muhammad Aurengzaib Khan, Rana Asif Saeed and Syed Tajamal Hussain Bukhari for Petitioners.

Mrs. Samina Mehmood Rana, Additional Advocate General.

Malik Sohail Ashiq for Respondents.

Ms. Maria Rafique, Chief Law Officer, NTDC.

Mian Nazar Muhammad Arain for WAPDA.

Irshad Hussain, Tehsildar, Muzaffargarh.

Muhammad Waseem Sheikh, Land Acquisition Collector.

2025 C L C 885

[Lahore (Rawalpindi Bench)]

Before Anwaar Hussain, J

NASIR ALI ---Petitioner

Versus

Mst. RAHEELA MAHDI ---Respondent

C.R. No. 241-D of 2022, heard on 27th November, 2024.

(a) Transfer of Property Act (IV of 1882)---

----S. 54---Specific Relief Act (I of 1877), S. 12---Civil Procedure Code (V of 1908), O. III, Rr.1 & 2 & O. VI, R. 17---Qanun-e-Shahad (10 of 1984), Arts. 17, 79 & 129(g)---Suit for specific performance---Oral sale of immoveable property---Burden of proof---Absence of specific details as to time, date, place and witnesses of sale---Non-production of any independent witness---Non-appearance of respondent as witness---Appearance of husband of respondent as her attorney, who was an advocate---Filing of application for amendment in the plaint by the respondent while changing the entire description of the property in dispute---Dishonest improvements in the evidence on part of the respondent---Irregularity in the report of local commission---Concurrent decisions by trial and appellate courts---Held, that time, date and names of witnesses were mentioned in the plaint, however, exact place and time of the negotiations, which led to the conclusion of the oral agreement, were missing in the plaint---Maxim "Allegans Contraria Non Est Audiendus" (A person who alleges things contradictory to each other is not to be heard) disentitled the respondent to any relief---None of the witnesses stated that the special attorney of the respondent (her husband) was present at the time of conclusion of the oral agreement and that he took the possession---To such extent improvement was made by PW.3---In case of specific performance of the oral agreements improvements beyond pleadings are to be discarded---Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct---Two marginal witnesses of the transaction were also not independent, as PW.1, PW.2 and PW.3 were husband, son and domestic servant of the respondent, respectively---Suit was time barred as oral agreement was stated to have been concluded on 02.06.2007, whereas, the suit was instituted on 18.06.2019---Civil cases are to be decided on the basis of preponderance of evidence---Courts are obligated to overall appreciate the evidence available on record---Report of local commission and a minor weakness in the petitioner's statement had been made basis by Courts below for rendering their findings---Neither report of the local commission, which was full of irregularities, nor weaknesses of the petitioner's case could be made basis of passing a decree in the suit for specific performance of contract instituted on the basis of an oral agreement to sell, which agreement was not concluded in presence of any independent witness and the record clearly depicted glaring contradictions in statements of PWs. qua the execution of said oral agreement---Concurrent findings of the courts below were result of grave misreading and non-reading of evidence and incorrect application of settled principles of law governing grant of decree in a suit for specific performance of oral agreement---Civil revision was allowed, in circumstances.

Muhammad Nawaz through L.Rs. v Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1300 and Faridullah Khan v. Masood Asghar Mian 2017 CLC 1736 ref.

Ameer and another v. Mohabbata and another 2006 SCMR 690; Muhammad Riaz and others v. Mst. Badshah Begum and others 2021 SCMR 605 and Moiz Abbas v. Mrs. Latifa others 2019 SCMR 74 rel.

(b) Power of attorney---

----Acts performed by the attorney---Deposition of attorney---Scope---If the attorney has performed some "acts" in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him.

(c) Qanun-e-Shahadat (10 of 1984)---

----Art. 129(g)---Non-appearance of a party in the witness box---Presumption---Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct.

(d) Administration of justice---

----A party has to stand on his own legs and no benefit can be derived from the weakness of the opponent.

Tasawar Iqbal Baryar along with Raja Naseer Ahmed (elder brother of the petitioner) for Petitioner.

M. Ilyas Sheikh and M. Kashif for Respondent.

2025 C L C 911

[Lahore]

Before Shujaat Ali Khan, J

ROBINA KAUSAR ---Petitioner

Versus

MUHAMMAD LATIF ---Respondent

Civil Revision No. 432 of 2017, heard on 3rd December, 2024.

(a) Transfer of Property Act (IV of 1882)---

----Ss.60, 67 & 68---Specific Relief Act (I of 1877), S. 12---Contract Act (IX of 1872), S. 23---Mortgage---Penal clause as to transfer of property upon failure of mortgagor to return mortgaged money---Enforceability----Specific performance---Scope---Respondent/mortgagee sought specific performance of the penal clause of mortgage deed upon failure of the petitioner/mortgagor to return the mortgaged amount---Contention of the mortgagor was that mortgagee had alternative remedies of foreclosure and sale of mortgaged property, thus, mortgagee could not seek specific performance of the penal clause---Validity---Owner can mortgage his property but mortgagee has no right to get transferred the mortgaged property in his name through a decree for specific performance---If the mortgage money was not being returned by the mortgagor, the mortgagee could resort to remedy provided under S.67 of the Transfer of Property Act, 1882---Mortgagee could approach the civil court claiming that mortgagor be absolutely debarred of his right to get the mortgaged property redeemed or could pray for decree for sale of the property, but the recitals of the suit filed by the mortgagee spoke otherwise----Suit for specific performance could be filed for enforcement of an agreement to sell, but the same was not maintainable on the basis of a penal clause in an agreement, which otherwise did not fulfill the standards set for an agreement to sell, thus, mortgagee was not entitled for decree for specific performance on the basis of penal clause in the mortgage deed---Civil revision was allowed, in circumstances.

Mst. Naseem Akhtar and others v. Abdul Tawab and others 2012 SCMR 1526; Abdul Haq v. Ali Akbar and others 1999 SCMR 2531; Abdul Sattar v. Mst. Sardar Begum and 12 others 1992 SCMR 417; Khushi Muhammad and others v. Muhammad Ashfaq and others PLD 2014 LHR 26; Muhammad Akhtar v. Mst. Siani 2011 CLC 1218; Abdul Lateef v. Ashique Ali and others PLJ 2006 Karachi 127; Abdul Haq v. Ali Akbar and 12 others 1998 CLC 129 and Suleman and 3 others v. Custodian, Evacuee Property, West Pakistan, Lahore and 2 others PLD 1971 LHR 77 ref.

(b) Registration Act (XVI of 1908)---

----S. 17---Unregistered mortgage deed---Rights and duties---Enforceability---Without registration of mortgage deed inter-se rights and duties of parties are unenforceable unless the mortgagee pays the required registration fee and any penalty---While the safer course for the Trial Court was to impound the deed and refuse further proceedings until payment, such aspect of the case had not been addressed by the courts, which rendered their decisions unqualified.

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

----S. 115---Limitation Act (IX of 1908), Ss. 5 & First Sched., Art. 162-A---Civil revision, filing of---Limitation---Delay---Defects in pleadings---Office objection---Non-removal of objections within limitation period---Extension in time for removal---Exclusion of time consumed---Scope---Objection was raised by mortgagee as to maintainability of civil revision on the point of limitation---Validity---Party is bound to remove objection within time prescribed by the office, but no penal action can be taken against it without issuing notice to it or before establishing that the party concerned failed to do the needful despite being put to notice---No notice was issued to the mortgagor asking her to remove the office objection within specified period and when the application of the mortgagor seeking extension of time to remove the office objection was accepted and she removed the office objection, it did not lay in the mouth of the mortgagee to raise objection against the maintainability of civil revision on the point of limitation---Irrespective of the fact as to whether any application for condonation of delay had been filed or not, High Court, while deciding a revision petition, has to see validity of the decisions impugned before it and if the same are found to be untenable the question of limitation assumes secondary status, thus, the objection raised by the mortgagee qua maintainability of civil revision on the point of limitation was spurned.

Mst. Sabiran Bibi v. Ahmad Khan and another 2000 SCMR 847 and Shazia Munawar v. Punjab Public Service Commission through Secretary, Lahore PLD 2010 Lahore 160 rel.

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

----S. 115---Concurrent findings of facts by courts below----Revisional jurisdiction of High Court---Scope---Concurrent findings of facts recorded by the courts below are rarely interfered with by the High Court in exercise of its revisional jurisdiction but when the decisions of the fora below are arbitrary or suffer from material illegality, same cannot not be considered sacrosanct rather High Court should not feel shy to undo the same.

Muhammad Aslam (deceased) through L.Rs. and another v. Molvi Muhammad Ishaq (deceased) through L.Rs. and others 2024 SCMR 1390 rel.

Muhammad Anwar Basit for Petitioner.

Muhammad Mumtaz Faridi assisted by Ali Ahmad Sabir for Respondent.

2025 C L C 928

[Lahore]

Before Muhammad Sajid Mehmood Sethi and Rasaal Hasan Syed, JJ

PUNJAB GROUP OF COLLEGES ---Appellant

Versus

PROVINCE OF THE PUNJAB through Chief Secretary, Lahore and others ---Respondents

I.C.A. No. 1379 of 2023 in W.P. No. 24891 of 2022, heard on 16th December, 2024.

(a) Punjab Private Educational Institutions (Promotion and Regulation) Ordinance (IV of 1984)---

----Ss. 3 & 6---Punjab Private Educational Institutions (Promotion and Regulation) Rules, 1984, R. 5---Registration of Private Educational Institutions---Issuance of notifications qua amendment in revised fee schedule for issuance of new/extension in registration certificates to private educational institutions in the Province of Punjab---Contention of the appellant was that revision of fee schedule and fixation of time for registration certificate was beyond the scope of applicable law and rules---Validity---Neither any specific duration for the validity of registration was stipulated in Ss. 3 and 6 of the Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984, nor the notifications cited any governing laws or rules that granted any power to the respondent to establish a fixed period for the validity of such registration---Through the notifications respondent had attempted to amend R. 6 of the Punjab Private Educational Institutions (Promotion and Regulation) Rules, 1984, (Rules)---Notifications were issued in a legal vacuum---No executive authority could take action without the backing of a valid law---Appeal was allowed, in circumstances.

Punjab College through Principal v. Government of Punjab through Chief Secretary and others 2020 MLD 1502; Messrs Mehraj Flour Mills and others v. Provincial Government and others 2001 SCMR 1806 and Allah Ditta and others v. Province of Punjab PLD 1997 Lahore 499 ref.

(b) Legislation---

----Amendment---Act or statute cannot be amended through a notification or subordinate enactment.

Shaukat Mahmood v. Election Commission of Pakistan (ECP) through Secretary ECP, Islamabad and others PLD 2024 SC 653; Roohullah and 6 others v. Government of Khyber Pakhtunkhwa through Secretary Environment, Fisheries Department and 6 others 2016 CLC Note 47; Pakistan Medical Commission v. Province of Sindh and others 2024 CLC 53 and Bayazid Khan Kharoti v. Chief Secretary Government of Balochistan Civil Secretariat, Zarghoon Road, Quetta and 2 others 2024 PLC (C.S.) 246 ref.

Iftikhar Ahmad Mian for Appellant.

Imran Khan, Assistant Advocate General along with Mian Zahid, Law Officer, Higher Education Department for Respondents.

2025 C L C 937

[Lahore]

Before Sultan Tanvir Ahmad, J

Mst. NIMRA SHEIKH ---Petitioner

Versus

MUHAMMAD UMAIR SIDDIQUI and another ---Respondents

Writ Petition No. 29490 of 2022, decided on 20th May, 2024.

Dowry and Bridal Gifts (Restriction) Act (XLIII of 1976)---

----Ss. 2(a), 2(e) & 5---Family Courts Act (XXXV of 1964), S. 5, Sched---Civil Procedure Code (V of 1908), O.XIV, R.1(2)---Barri/bridal gifts----Belongings of the bride---Suit for recovery of Barri/bridal gifts given to the petitioner/bride by the respondent/bridegroom and his parents at the time of marriage was instituted by the bridegroom---Bride raised a preliminary objection as to maintainability of the suit on the ground that barri/gift articles were the exclusive property of the bride in addition to her dowry articles by operation of law---Family Court rejected the objection while observing that framing of issues and recording of evidence was required for resolving the matter---Validity---Law on the point that the claimed property/articles unconditionally and absolutely vested in the petitioner was unambiguous and settled---Issues ought to be framed when a material proposition of fact or law is affirmed by one party and denied by the other---Facts in the suit were based on recovery of those articles that as per law could not be recovered by the claimant and absolutely belonged to the bride---No proposition was set-up in the suit that amounted to material proposition of law and fact, requiring determination or settlement---Claim in the suit was against the settled law and its existence on the docket was not just fruitless rather wastage of time and continuation of the same would operate as oppressive and vexatious to the bride---Constitutional petition was allowed, in circumstances.

Mst. Nomail Zia v. Adnan Riaz 2014 CLC 87 ref.

Tania Naseer v. Muhammad Zubair and 2 others 2017 YLR 1481; Gul Sher v. Mst. Maryam Sultana 2011 YLR 1000; Gulistan Textile Mills Ltd. v. Askari Bank Ltd. and others 2013 CLD 2005; Ameer Abbas Sial v. Province of Punjab 2020 CLC 792 and President, Zarai Taraqiati Bank Limited, Head Office, Islamabad v. Kishwar Khan and others 2022 SCMR 1598 rel.

Mehmood A Sheikh for Petitioner.

Sardar Liaqat Ali Dogar for Respondent No. 1.

2025 C L C 960

[Lahore]

Before Masud Abid Naqvi, J

FAYYAZ-UL-HASSAN ANWAR ---Petitioner

Versus

Mst. SHEHLA KHALID and another ---Respondents

Writ Petition No. 46618 of 2021, heard on 21st March, 2024.

Guardians and Wards Act (VIII of 1890)---

----S. 25---Non-custodial parent, rights of---Minor girl---Overnight stay with father---Scope---Guardian Court, on the statement of the father, while dismissing his application for custody as withdrawn, issued a schedule of visitation on number of events/days (including Eids, birthday of minor, vacations) also allowing overnight stay of minor with father on certain terms---Father filed constitutional petition as the Appellate Court partially accepted the appeal of mother and framed new schedule for visitation , excluding overnight stay of minor girl with father---Validity---Non-custodial parent has all the rights to meet his/her children and neither right of access to his/her minor children can be denied nor a non-custodial parent will be considered as an alien to his/her children---A minor not only needs love, affection, care and attention of a mother but also the father and negating a non-custodial parent of his/her right to meet his/her minor children would lead to emotional deprivation---A non-custodial parent has an inherent right to effectively participate in upbringing of minor and that cannot be achieved without properly chalked visitation schedule---Due to lack of interaction with non-custodial parent, the children start forgetting and in many cases disliking the non-custodial parent and this phenomenon has been named as Parental Alienation Syndrome by the psychiatrists---Hence, visiting schedule significantly bridges a relationship between the minor children and a non-custodial parent---Using visitation rights, a non-custodial parent can not only recolour the emotions of minor children for him/her but also reinvigorate the bond of love and affection with the minor---Although, the law on the subject of visitation is contained in the Guardians and Wards Act, 1890, but there are no guidelines about the duration, frequency of visits of minor and about the visitation schedule; hence, while deciding about the visitation schedule, the paramount consideration is the welfare of minor---Considering the paramount consideration of welfare of minor and rights of father/petitioner, High Court chalked new visitation schedule of minor by virtue of which the petitioner/father was entitled to meet with his daughter/minor on certain days/events (including Eids, Birthday of minor, vacations) and overnight stay of minor with father was also allowed, though such number of nights were decreased---High Court set-aside the impugned judgment passed by Appellate Court by amending the visitation schedule accordingly---Constitutional petition, filed by father of minor , was partly allowed.

Mst. Madiha Younus v. Imran Ahmed 2018 SCMR 1991 ref.

Muhammad Mumtaz Faridi for Petitioner.

Allah Ditta Naseem for Respondent. No. 1.

2025 C L C 983

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

FAISAL IRSHAD ---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Religious Affairs and Interfaith Harmony, Islamabad and another ---Respondents

W.P. No. 22092 of 2025, decided on 23rd April, 2025.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Hajj Policy---Moavineen-e-Hujjaj---Criteria---Concealment of facts---Petitioner was aggrieved of rejection of his application to proceed on Haj in the capacity of Moavineen-e-Hujjaj for performing welfare duties on the basis of attaining qualifying marks---Validity---Petitioner submitted application without providing mandatory documents including NOC and medical fitness certificate, thereby concealing relevant facts---Petitioner was employee of an autonomous body which did not fall under administrative control of any Ministry or Division as per Rules of Business, 1973---Petitioner moved application after accepting all terms and conditions outlined in the advertisement and undertook to comply with all policies and instructions issued by authorities---Petitioner failed to point out any illegality or legal infirmity in the advertisement published by authorities warranting interference by High Court---Constitutional petition was dismissed, in circumstances.

Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another 1997 SCMR 15; Qazi Abdul Jalil v. N.-W.F.P. Forest Development Corporation through Chairman and others 2010 SCMR 1933; Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1; Abdul Karim Nausherwani and another v. The State through Chief Ehtesab Commissioner 2015 SCMR 397; Inspector General of Police, Quetta and another v. Fida Muhammad and others 2022 SCMR 1583; Nazar Muhammad Waraich and 7 others v. Zonal Head, State Life Insurance Corporation of Pakistan, Paris Road, Sialkot and another 2010 PLC (C.S.) 701 and Hafiz Junaid Mahmood v. Government of Punjab and others PLD 2017 Lahore 1 distinguished.

Dossani Travels (Pvt.) Ltd. and 4 others v. Messrs Travels Shop (Pvt.) Ltd. and others 2013 SCMR 1749; Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others v. Hayat Hussain and others 2016 SCMR 1021; Government of Khyber Pakhtunkhwa through Secretary Forest, Peshawar and others v. Sher Aman and others 2022 SCMR 406 and Vice-Chancellor Agriculture University, Peshawar and others v. Muhammad Shafiq and others 2024 SCMR 527 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Policy matter---High Court under Art. 199 of the Constitution, can annul an order or a Policy framed by the Executive, if it is violative of the Constitution, law or is based upon mala fide.

Mufariq Shah for Petitioner.

2025 C L C 1001

[Lahore]

Before Rasaal Hasan Syed, J

SUI NORTHERN GAS PIPELINES LIMITED through Authorized attorney ---Petitioner

Versus

FAZAL HUSSAIN (deceased) through L.Rs ---Respondent

C.R. No. 1169 of 2013, decided on 29th November, 2024.

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

----O.XLI, R.31---General Clauses Act (X of 1897), S. 24A---Suit for recovery---Gas utility dues---Gas Sales Agreement---Binding terms---Error in departmental calculation of bill---Suit for recovery by SNGPL on account of outstanding gas charges detected due to under-billing---Legal heirs of original consumer claimed all dues had been discharged asserting that they were not liable for any miscalculation by meter-reader---Gas supply was disconnected---Issues were framed and evidence was recorded---Suit filed by SNGPL was dismissed, and so was the appeal---Question necessitating analysis included as to whether the department could under the contract recover the amount claimed?; what were the agreed terms and conditions of the contract?; whether the respondent/ consumer could avoid the responsibility to pay the amount?; whether the evidence produced by petitioner factually established short-billing?; and whether any mistake in recording the billing charges incorrectly could exonerate the consumer to avoid liability on detection of under-billing?---Both courts below concluded that it was the fault of meter-reader and demand from consumer was illegal---Held: The court below did not take the trouble of looking into the evidence and thereafter recording findings by giving reasons for the conclusions drawn---It was ignored that mere mistake of the departmental representative in process of calculation of bill could not be a ground to exonerate the consumer from paying the actual dues for consumption of gas and that the liability was to be regulated by terms agreed in the contract---Revision petition was accepted and the matter was remanded to the Appellate Court for decision afresh.

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

----O.XLI, R.31---General Clauses Act (X of 1897), S. 24A---Gas utility dues, recovery of---Appellate Court---Duty to record reasoned judgment---Judicial application of mind required---Judgment without considering evidence---Legality---Judgment recorded without considering evidence cannot be approved as it violates provision of O.XLI, R.31, C.P.C. which states that Appellate Court shall deliver the judgment in writing and shall state points for determination, the decision thereof and reasons for the decision---Appellate Court in first appeal is duty bound to consider the case de novo for reaching a conclusion---Judgment of Appellate Court should be error free, concise, consistent, coherent and comprehensible irrespective of the stylistic difference---Principles, parameters and requirements of a judgment are that the judgment should contain a concise statement of case, points for determination, decision thereon and reasons for such decision manifesting application of mind to resolve issue involved which ought to be self-contained, unambiguous, easily intelligible, lucid, open only to one interpretation and thus leaving nothing to guess work or probabilities on matters under determination and should also be self-keeping, well-reasoned and analytical reflecting due consideration of facts, law and contention of parties founded on legal grounds and the evidence on record---It was the duty of the Appellate Court to decide the controversy between the parties after application of independent judicial mind and that mere reproduction of the judgment of Trial Court and thereafter dismissing the appeal cannot be in consonance with the law---After insertion of S.24 of General Clauses Act, 1897 even the public functionaries are duty bound to decide the application of citizens while exercising statutory powers with reasons after judicial application of mind---In the instant case, the court below fell in error and did not properly look into the evidence---Mere mistake of department representative in process of calculation of bill could not be a ground to exonerate the consumer from paying the actual dues for consumption of gas and the liability was to be regulated by terms agreed in the contract---Revision petition was accepted, judgment of the court below was set aside and case was remanded.

Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568; Gul Rehman v. Gul Nawaz Khan 2009 SCMR 589 and Punjab Industrial Development Board v. United Sugar Mills Limited 2007 SCMR 1394 rel.

Mst. Sarwar Bano through Attorney v. Province of Sindh through Member Board of Revenue, Hyderabad and 5 others PLD 2015 Sindh 445; Abdul Hameed and 7 others v. Abdul Razzaq and 3 others PLD 2008 Lah. 1 and Gul Muhammad v. Kiamuddin 2012 YLR 218 ref.

Umar Sharif for Petitioner.

2025 C L C 1030

[Lahore]

Before Shahid Bilal Hassan, J

ADEEL MANZAR and 2 others ---Petitioners

Versus

Mst. NAEEM AKHTAR and others ---Respondents

Writ Petition No. 56215 of 2019, decided on 23rd June, 2023.

(a) Limitation Act (IX of 1908)---

----First Sched., Arts. 103 & 104---Family Courts Act ( XXXV of 1964), S. 5, Sched.---Suit for recovery of dower filed by widow---Limitation---Appellate Court concluded that the suit filed by lady was within time when during life of the deceased no demand and refusal took place---Validity---Record revealed that suit had been instituted after about six years of death of husband of the lady/plaintiff---Whereas, for filing such suit , limitation is three years having been provided under Arts. 103 and 104 of Limitation Act,1908, for exigible dower (mu'ajjal) and for deferred dower (mu'wajjal) respectively---When the said Arts. (103 and 104) were read with contents of the plaint, it became diaphanous that the suit was blatantly barred by limitation but said aspect of the case had wrongly been concluded / adjudicated upon by the Appellate Court by referring to first part of the Art. 103, but skipped and left the second part of the said Art. (103), which enunciated that "when marriage is dissolved by death or divorce", even then the limitation for filing such suit would be 'three years' under Art. 104 of the Limitation Act, 1908---Thus, the findings recorded by the Appellate Court on the point of limitation were not sustainable, therefore, the suit was liable to be dismissed on that score---High Court set-aside impugned judgments and decrees passed by both the Courts below---Constitutional petition, filed by legal heirs ( major/adult siblings of deceased), was allowed, in circumstances.

Syed Muhammad v. Mst. Zeenat and others PLD 2001 SC 128 ref.

(b) Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Limitation Act (IX of 1908) First Sched., Arts. 103 & 104---Suit for recovery of dower filed by widow---Limitation---Suit was concurrently decreed in favour of lady---Validity---Record revealed that the property left by deceased husband of plaintiff had devolved upon his legal heirs as per their shares---Silence of the plaintiff for a considerable period of six years after death of deceased for not demanding any claim of dower despite the fact that the legacy of the deceased devolved upon his legal heirs also casted aspersion about her claim---Had the deceased not paid her dower during his life time, she would not have been quiet at the time of devolution of his legacy upon his legal heirs as well as at the time of execution of inheritance mutation, etc.---All this showed that the deceased had already paid dower to the plaintiff in his life time that was why she remained silent and later on due to certain incidents in between the parties, the suit was instituted, that too, after expiry of period of limitation of three years provided under Arts. 103 and 104 of Limitation Act, 1908---High Court set-aside the impugned judgments and decree passed by both the Courts below---Constitutional petition, filed by legal heirs (major/adult siblings of deceased), was allowed, in circumstances.

(c) Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Suit for recovery of dower filed by widow---Dower---Legal right of wife/widow---Suit was concurrently decreed in favour of lady---Validity---Dower money is a debt payable to a wife and she is within her legal right to even press for its payment; even in those cases where claim for recovery of debts gets barred under the law, the only consequence which follows is that the aid of the Courts cannot be invoked for its recovery but the debt itself does not become extinct so that it may be available for purposes of adjustment out of Court and can even be paid with the consent of the parties---In the present case, the plaintiff ( lady / respondent) had miserably failed to prove that the deceased did not pay the dower, as settled at the time of Nikah to her, therefore, there did not arise any question of debt upon the estate of the deceased---High Court set-aside impugned judgments and decrees passed by both the Courts below---Constitutional petition, filed by legal heirs (major /adult siblings of deceased), was allowed, in circumstances.

Muhammad Mumtaz v. Mst. Parveen Akhtar 1985 CLC 415 ref.

Zafar Iqbal Chohan and Sarosh Zafar for Petitioners.

Shahid Mehmood Aleem for Respondents.

2025 C L C 1048

[Lahore (Rawalpindi Bench)]

Before Anwaar Hussain, J

Mst. ZAIB UN NISA and others ---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, TAXILA and others ---Respondents

Writ Petition No. 3346 of 2018, heard on 20th November, 2024.

(a) Family Courts Act (XXXV of 1964)---

---S. 5, Sched.---Suit for recovery of dower, dowry articles and maintenance allowance---Decree in favour of wife---Interpretation of dower clause in execution proceedings---Interpretation and scope of execution vis-a-vis the original decree---Executing Court travelling beyond the original decree---Petitioner (wife) claimed recovery of either 07-tola gold ornaments or their present market value which was accepted by the Executing Court---Respondent challenged order of Executing Court, whereby, the Appellate Court reversed the Executing Court's order by holding that petitioner was only entitled to Rs.100,000 as recorded in column No. 13 of nikahnama---Question for determination before High Court was as to whether the Executing Court was justified in allowing the petitioner to recover the present market value of 07-tola gold ornaments as dower, when the original decree granted her a choice between receiving the gold ornaments or Rs.100,000/- as alternate value settled in nikahnama---Held: Once it was proved that gold ornaments were given as dower and later taken back by the husband, the petitioner remained entitled to recover either the ornaments or their market value, hence, entry of Rs.100,000/- recorded in Column No.13 as dower became irrelevant---Petitioner was entitled to actual dower or its prevailing market value---Writ petition was allowed, in circumstances.

(b) Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Suit for recovery of dower, dowry articles and maintenance allowance---Dower---Market value v. alternate value recorded in nikahnama---Petitioner (wife) not bound to accept fixed alternate amount in nikahnama---Entitlement to actual property or equivalent market value---High Court observed that alternate values in family suits are provided only for contingencies where the principal property (e.g., dowry/dower) is unavailable, damaged or lost---Where the property is clearly identifiable and available in the market (i.e., gold ornaments), the petitioner cannot be compelled to accept the nominal alternate value settled at time of nikah and/or decree---By no stretch of imagination, alternate value of Rs.100,000/- could be treated as adequate substitute of the actual dower i.e. 07-tola gold ornament---Executing Court correctly allowed the application of the petitioner as it was for the petitioner to opt as to whether to go for the actual dower i.e. 7-tola gold ornaments, which became her property after the same was settled and delivered to her, or accept its alternate value---Petitioner could not be compelled to accept the alternate value settled in nikahnama---Writ petition was allowed.

Haseen Ullah v. Mst. Naheed Begum and others PLD 2022 SC 686 ref.

(c) Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Muslim Family Laws Ordinance (VIII of 1961), Preamble---Interpretation of family laws---Beneficial interpretation in favour of women---Scope of decree not to be restricted---Decree to be executed in full---Execution of decree---Executing Court, jurisdiction of---Proper satisfaction of decree---Judgment debtor's tactics to delay execution deprecated---Attempts by the husband (judgment debtor) to delay or reduce satisfaction of dower obligations through pretexts or objections are disapproved by the Courts and amount to abuse of process---High Court observed that Family Laws must be interpreted liberally in favour of women being beneficial legislation---The duty of the Executing Court was to implement the decree, not limit or modify it---It was held that the ownership of the gold ornaments became vested in the petitioner (wife) and any accretion and appreciation of the value of gold ornaments were also to be cherished and enjoyed by the petitioner and she could not be deprived of such accretion by offering alternate value fixed at the time of her Nikah---Petitioner was entitled to actual dower or its prevailing market value---Writ Petition was allowed, in circumstances.

Ch. Musawar Iqbal along with Petitioner No. 1 in person for Petitioners.

Sajjad Hussain for Respondent No. 2.

2025 C L C 1062

[Lahore]

Before Ahmad Nadeem Arshad, J

ADNAN ANWAR ---Petitioner

Versus

IJAZ AHMAD and 8 others ---Respondents

Civil Revision No. 72449 of 2023, heard on 18th April, 2024.

Punjab Partition of Immoveable Property Act, 2012 (IV of 2013)---

----Ss. 11(5) & 11(10)---Suit for partition---Auction proceedings---Extension in time to deposit balance auction money---Petitioner / auction purchaser was allowed extra time to deposit remaining 80% of auction money---Lower Appellate Court set aside confirmation of auction by Trial Court in favour of petitioner / auction purchaser---Validity---Legislature has not necessitated permission of Court to deposit remaining consideration amount---Petitioner / auction purchaser was bound to deposit remaining 80% amount within 07-days after the auction which he failed to do---Non-compliance of such mandatory provision entailed penal consequences---Deposit of remaining 80% amount within the period stipulated by Trial Court was of no use to petitioner / auction purchaser---No Court can deviate from mandatory provision of law, as act of Court derives force from the statute---When statute had not provided any leniency in such regard then Trial Court could not give any relaxation---Lower Appellate Court rightly allowed appeals of respondents---High Court in exercise of revisional jurisdiction declined to interfere in judgment passed by Lower Appellate Court, as petitioner / auction purchaser was unable to point out any illegality, irregularity or jurisdictional defect in judgment passed by Lower Appellate Court, which had been passed in accordance with law after due appreciation of the law on the subject---Revision was dismissed, in circumstances.

Mst. Nadia Malik v. Messrs Makki Chemical Industries (Pvt.) Limited through Chief Executive and others 2011 SCMR 1675 and Messrs Maqi Chemicals Industries (Pvt.) Limited through Chief Executive and 3 others v. Habib Bank Limited through Manager and 2 others 2003 CLD 571 ref.

Barrister Muhammad Adil Fayyaz for Petitioner.

Javed Iqbal Bhatti for Respondents Nos. 1 to 3.

Hafiz Muhammad Mohsin Waseem Sipra for Respondents Nos. 4 to 8.

2025 C L C 1074

[Lahore]

Before Raheel Kamran, J

ASIF MEHMOOD ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others ---Respondents

Writ Petition No. 68712 of 2024, decided on 10th April, 2025.

(a) Family Courts Act (XXXV of 1964)---

----S. 10(5)---Khula---Award of maintenance confined to Iddat period only---Claim for recovery of deferred dower and dowry articles---Deferred dower---Entitlement in case of khula---Reason for seeking khula the determinative factor---Long duration of marriage considered---Deferred dower as compensation for commitment---Legal question that came up for determination before the High Court was as to "Whether a wife who obtains dissolution of marriage through khula is legally entitled to recover the entire amount of deferred dower?"---Respondent No. 3 (wife) instituted a suit before the Family Court against the petitioner (husband) seeking dissolution of marriage, recovery of deferred dower amounting to Rs. 200,000/-, maintenance allowance, and dowry articles worth Rs.371,200/- ---The petitioner resisted the suit, and upon failure of reconciliation efforts, the Family Court decreed the dissolution of marriage under S. 10(5) of the Family Courts Act, 1964 on the basis of Khula---After recording of evidence, the Family Court partly decreed the suit, awarding Rs.5,000/- per month for the iddat period and Rs.100,000/- as alternate value of dowry articles, however, the issue of deferred dower remained undecided---On appeal, the Appellate Court remanded the case for adjudication on all issues---The Family Court decided the case afresh, awarding Rs.200,000/- as deferred dower and maintaining the earlier grant of alternate value of dowry articles---The petitioner's appeal against this decision was dismissed and thereafter he filed the present constitutional petition---Held, that giving of dowry articles to daughters is a deep routed practice in our society followed by the parents of all classes irrespective of their financial status---The alternate value of dowry articles as fixed by court below even if seen in conjunction with the admission of the petitioner that some dowry articles were given to the respondent, the same appeared to be reasonable---Therefore, findings of the courts below regarding dowry articles were unexceptionable---Regarding the issue of deferred dower the High Court held that the respondent, having sought khula due to the petitioner's misconduct, was entitled to the full amount of deferred dower---Given the duration of the marriage, its consummation, and uncontroverted evidence of the husband's mistreatment, the claim for deferred dower was rightly decreed, hence, the constitutional petition was dismissed as meritless---Petition dismissed.

(b) Family Courts Act (XXXV of 1964)---

----S. 10(5)---Deferred dower---Post Khula entitlement---Khula based on misconduct---Wife not bound to return dower---Dower payable upon consummation---Principles---Long duration of marriage---Dower as security and compensation for commitment---Legal question was raised by the petitioner (husband) before the High Court regarding recovery of dower that as the marriage was dissolved on the basis of khula, the respondent (wife) was barred from claiming recovery of dower---It was imperative aspect of the case that subsections (5) and (6) were added to S. 10 of the Family Courts Act, 1964 through the Punjab Family Courts (Amendment)) Act, 2015 which became effective on 18.03.2015 ---However, subsections (5) and (6) of S. 10 have been declared as repugnant to the Injunctions of Islam by the Federal Shariat Court w.e.f. 01.05.2022---So, Ss. 10(5) & 10(6) of Family Courts Act, 1964 were not in force at the time of passing of order in the instant case qua dissolution of marriage on the basis of khula on 25.05.2022---The courts below by way of impugned judgments and decrees concurrently held the respondent entitled to the recovery of entire amount of deferred dower, which findings were under challenge by the petitioner on the ground that as the respondent herself sought khula, she could not be held entitled to the recovery of deferred dower---The question for determination before the High Court in view of the above backdrop was the impact of khula on wife's entitlement to dower---Islamic law recognized khula as a method for the dissolution of marriage, analogous to talaq, but they differ significantly on their initiation, procedures and consequences---Talaq is primarily the right of the husband to unilaterally dissolve the marriage---In case of talaq, the husband is precluded from claiming the dower, gifts or other benefits which he had already given to the wife---Khula is initiated by the wife with the consent of the husband, or where the husband does not consent, by a judicial decree that is obtained on the wife's application---In khula, the wife may be required to give some consideration to the husband for her release from the marital bond---This consideration to be paid by the wife in a khula is a matter of agreement between the parties or determination by the Court, based on the specific circumstances of the case---When it comes to the rules for such determination by the court, it has been held by the Federal Shariat Court that where wife obtains khula merely on the basis of disliking against the husband the dower received by the wife is returnable, however, where wife seeks khula due to fault on the part of the husband by providing reasonable justification, it is not valid to require her to return the dower already received by her---In such eventuality, it is on the Court to determine, keeping in view facts and circumstances of the case, that how much return of the already received benefits by the wife would be appropriate, therefore, the return or surrender of dower by the wife is not an automatic consequence in each and every case of khula---In order to determine entitlement of a wife seeking khula to the claim of deferred dower, key consideration is the reason for her seeking khula---Where a wife seeks khula on the ground of disliking against the husband, without any fault on the part of the husband, she loses her right to deferred dower in the same way as in the case of prompt dower---Conversely, if the husband's conduct compels the wife to seek dissolution then she retains her entitlement to the deferred dower---In the instant case the respondent obtained the decree for dissolution of marriage on the basis of khula---Nonetheless, the crucial factor to determine was what prompted the respondent to seek dissolution of marriage---In the plaint as well as her examination in chief as PW1 the respondent levelled allegations of bad conduct and disrespectful behavior of the petitioner towards her, which prompted her to seek dissolution of marriage and to that extent her testimony was not discredited in cross-examination by the petitioner---As per para 289-A(a) of Principles of Muhammadan Law by D.F. Mulla, dower becomes confirmed by consummation of marriage---Para 336(2) further provides that if the marriage was consummated the wife then becomes entitled to immediate payment of whole of the unpaid dower, both prompt and deferred---These rules have been delineated in compliance of the command in verses Nos. 20 and 21 of Surah Al-Nisa---In the instant case, the marriage between the petitioner and respondent subsisted for almost nine years and during this long period the respondent / wife fulfilled her marital obligations---The deferred dower is also seen as a form of security and compensation for the wife for her commitment during the marriage---After such a long period of marriage, it would be inequitable to deny full amount of the deferred dower to wife, especially when the dissolution was sought due to cruelty and bad behavior and conduct on the part of the petitioner---For the foregoing reasons, impugned judgments and decrees were upheld and the petition at hand was dismissed being devoid of any merits.

Imran Anwar Khan and others v. Government of Punjab through Secretary, Ministry of Law and others PLD 2022 Federal Shariat Court 25 and Haji Saif-ur-Rahman Shaheen v. Islamic Republic of Pakistan through Attorney General of Pakistan, Islamabad and 4 others PLD 2024 Federal Shariat Court 9 rel.

Mian Abdul Ghaffar for Petitioner.

Respondent No. 3 Ex parte.

2025 C L C 1090

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

NATIONAL HIGHWAY AUTHORITY through Chairman ---Appellant

Versus

MUBASHAR HUSSAIN AWAN and others ---Respondents

R.F.A. No. 54428 of 2023, heard on 28th October, 2024.

Land Acquisition Act (I of 1894)---

----Ss. 4 & 18---Acquisition of land---Compensation---Determining factors---Report of field staff---Principle of preponderance of evidence---Applicability---Appellant (land acquiring authority) was aggrieved of enhancement of compensation regarding acquired land---Plea raised by appellant / Authority was that Referee Court neither took into consideration market value of land nor report of field staff---Validity---Evidence brought on record by parties was to be seen in its entirety, stressing less qua obligation of onus to prove and applying principle of preponderance of evidence---Appellant / Authority succeeded to prove that amount of compensation determined by Referee Court was exorbitant---Referee Court did not properly appreciate material / evidence brought on record, including report of field staff, facts of the case, applicable law and dictum laid down by superior Courts while passing decision in question---None of the members of District Price Assessment Committee was produced in evidence to explain criteria adopted by it while fixing price---Award as well as decree passed by Referee Court did not reflect independent assessment by Land Acquisition Collector and Referee Court keeping in view the complexions and character of acquired land---High Court reduced compensation awarded by Referee Court, keeping in view the report of field staff---Appeal was allowed accordingly.

Lahore Ring Road Authority and others v. Mian Mumtaz Ahmad and others 2021 CLC 178 and National Highway Authority, Islamabad through Project Director Zafar Mehmood v. Muhammad Afzal Bhatti and another 2024 CLC 1246 ref.

Muhammad Saim Chaudhry, Dewan Zakir Hussain and Saima Safdar Chaudhry for Appellant.

Muhammad Zain Qazi, Assistant Attorney General.

Sh. Usman Karim-ud-Din for Respondents.

2025 C L C 1109

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

ADIL KHALIL SATTAR through Special Attorney ---Petitioner

Versus

SAAD NASIM KHAN ---Respondent

Civil Revision No. 212-D of 2021, decided on 4th December, 2024.

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss. 13, 30(b) & 31---Civil Procedure Code (V of 1908), O.VII, R. 11---Suit for possession through pre-emption, filing of---Limitation---Non-issuance of notice to the petitioner/public at large---Effect---Petitioner asserted that he got knowledge of the sale on 29.09.2016, whereas, the sale was effected through mutation on 22.12.2015---Respondent while resisting the suit filed application for rejection of plaint, which was accepted and appeal preferred by the petitioner was dismissed---Contention of the petitioner was that since no notice under S. 31 of the Punjab Pre-emption Act, 1991, (Act) was issued at the time of attestation of mutation, thus, limitation started running from the date of knowledge---Validity---In case a sale is made through mutation the limitation will be counted from the date of attestation of mutation and the pre-emptor is bound to bring his suit within four months from such date---Section 30(d) of the Act clearly envisages that limitation for instituting a suit for pre-emption would commence from the date of knowledge by the pre-emptor only in cases not covered under preceding paragraphs---Period of limitation would be computed keeping in view the mandate of S. 30 of the Act, which clearly provided four months for the institution of the suit from the date of attestation of mutation and not from the date of knowledge in the plaint---Civil revision was dismissed, in circumstances.

Amir v. Falak Sher and another 2003 CLC 1756 and Muhammad Khan v. Muhammad Hussain and 2 others 2002 YLR 1353 ref.

(b) Punjab Pre-emption Act (IX of 1991)---

----Ss. 30 & 31---Suit for possession through pre-emption, filing of---Limitation---Public notice---Sections 30 & 31 of the Punjab Pre-emption Act, 1991---Nexus---Section 31 of the Punjab Pre-emption Act, 1991 ('Act') exclusively deals with the issuance of public notice by the officer registering the sale deed or attesting the mutation of sale within two weeks of registration or attestation as the case may be, whereas limitation for instituting a suit for pre-emption is to be regulated by S. 30 of the Act---Sections 30 & 31 of the Act neither have any nexus nor are dependent on each other, rather both are independent having no effect or impact on each other, thus, non-issuance of notice in terms of S. 31 of the Act would have no adverse effect on the provision of S. 30 regulating the limitation for institution of suit for pre-emption.

Mst. Kausar Parveen v. Muhammad Iqbal PLD 2012 SC 760; Qasim Ali v. Rehmatullah 2005 SCMR 1926; Mian Asif Islam v. Mian Muhammad Asif and others PLD 2001 SC 499 and Khizar Hayat v. Sard Ali Khan PLD 2013 SC 369 rel.

(c) Constitution of Pakistan---

----Art. 189---Decision of the Supreme Court---Binding effect---Judgment of the Supreme Court of Pakistan which decides a question of law or is based upon or enunciates a principle of law, is binding on all other courts in Pakistan.

(d) Limitation Act (IX of 1908)---

----S. 3---Limitation---Principle---Section 3 of the Limitation Act, 1908, casts a duty upon the court to examine in the first instance as to whether proceedings brought before it are within time or otherwise, irrespective of the fact that any of the parties to the lis has raised such question or not.

2025 C L C 1124

[Lahore]

Before Abid Aziz Sheikh, J

MUHAMMAD NAEEM ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, Gujranwala and others ---Respondents

Writ Petition No. 65675 of 2021, heard on 25th November, 2024.

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

----O. II, Rr. 1 & 2 & S. 145---Contract Act (IX of 1872), S. 128---Constitution of Pakistan, Art. 199---Family suit for dissolution of marriage, recovery of dower, dowry articles and maintenance allowance---Decree passed against judgment-debtor---Execution initiated---Attachment of property---Validity---'Surety' and, 'Special Attorney'---Legal distinction---Scope of surety's liability---Execution of decree---Scope---Special Attorney appeared on behalf of the judgment-debtor under a Special Power of Attorney---On failure to satisfy the decree, the Special Attorney was ordered to be sent to civil prison---Petitioner furnished a surety bond for release of the Special Attorney---Subsequently, the immovable property of the petitioner mentioned in the surety bond was attached and put to auction for non-satisfaction of the decree---Objection petition filed by the petitioner was dismissed by the Executing and Appellate courts---Held: The Special Attorney on behalf of judgment debtor was neither impleaded as defendant in the suit nor the suit was decreed against him rather he appeared in the Court only in the capacity of Special Attorney on behalf of judgment-debtor---In absence of any decree against the Special Attorney or specific clause to this effect in Special Power-of-Attorney, the Executing Court could satisfy the decree only against judgment debtor but not against Special Attorney, who never appeared in suit in his personal capacity but only as Special Attorney of the judgment-debtor---In these circumstances, order for arrest of Special Attorney and sending him to civil prison for execution of decree was not warranted in law---Consequently, the surety bond by petitioner for release of Special Attorney was also neither required nor enforceable---No doubt the judgment debtor was bound to satisfy the decree either himself or through the attorney, however, in the present case it was not shown from the Special Power of Attorney that judgment debtor required Special Attorney to burden the liability for satisfaction of decree---There was no doubt that Special Attorney was not liable for execution of decree, consequently, the surety bond executed by petitioner for release of Special Attorney could not be made basis to attach his immoveable property for satisfaction of decree---Though the surety bond was also on behalf of judgment debtor besides the Special Attorney, however, when petitioner was not required in first place to execute the surety bond for release of Special Attorney, then whole superstructure on the basis of illegal detention order would crumble down and petitioner's property could not be auctioned merely because he mentioned the name of judgment debtor in his surety bond, which was not required to be executed in the first instance---Writ petition was allowed.

Muhammad Aslam v. Ayyan Ghazanffar and 2 others PLD 2012 Lah. 392; Muhammad Nawazish Ali v. Family Judge and others 2021 CLC 1841; Muhammad Mohsin Fawad v. Hina Tayyaba Khalil and another 2018 YLR 2199 and Muhammad Pervez v. Mst. Nabila Yasmeen and 2 others 2004 SCMR 1352 ref.

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

----S. 145 & O.II, Rr. 1 & 2---Contract Act (IX of 1872), S. 128---Recognized agent---Scope of authority---Meaning of terms "Appearance", "Application", and "Act"---Scope and applicability of C.P.C. principles in Family Matters---Plain reading of Rule 1 of Order III of the C.P.C. shows that a recognized agent can appear, file applications or act in or to any court on behalf of any party; R. 2 of O. III of the C.P.C. refers to a class of persons who could be treated as recognized agents of parties, which include a person holding power-of-attorney authorizing him to make such appearance, application and act on behalf of a party---The words "appearance", "application" and "act" used in Rr. 1 and 2 ibid are not defined therein---Applying ordinary meaning to these words the word "appear" means to be present and to represent the party at various stages of litigation---The words "application" or "act" mean necessary steps, which can be taken on behalf of a party in the Court or in the offices of the Court in the course of litigation---Thus the recognized agent or Special Attorney is entitled to appear, file application and act for a party but is not liable for satisfaction of the decree passed against the judgment debtor; whereas a "surety" is governed under S. 128 of the Contract Act, 1872 and is enforceable for performance of any decree or any part thereof under S. 145, C.P.C.---Though C.P.C. does not strictly apply in family matters but its principles are applicable---Special Attorney will only appear on behalf of a person and will not be liable as a surety unless he executes surety bond on behalf of a judgment debtor for satisfaction of decree---Writ petition was allowed by the High Court and impugned orders were set aside being without lawful authority and of no legal effect.

(b) Contract Act (IX of 1872)---

----S. 128---Scope of surety's liability---A surety is governed under S. 128 of the Contract Act, 1872 and is liable to the extent expressly agreed---In this case, where the surety bond itself was not legally warranted, the petitioner (surety) could not be made liable---Writ petition allowed and impugned orders were set-aside being without lawful authority and of no legal effect.

Syed Muhammad Usman Hadi Bukhari for Petitioner.

Ms. Areesha Sajid for Respondents Nos. 3 and 4.

2025 C L C 1135

[Lahore]

Before Sultan Tanvir Ahmad, J

MUHAMMAD BARJEES TAHIR ---Petitioner

Versus

ARSLAN ASWAD NAEEM and 18 others ---Respondents

Election Petition No. 18669 of 2024, decided on 24th October, 2024.

(a) Elections Act (XXXII of 2017)---

----Ss.144 & 145---Civil Procedure Code (V of 1908), O.VI, R. 15---Eelection petition, verification of---Affidavit---Procedural compliance mandatory---The petitioner challenged election of returned candidate from NA-111 Nankana Sahib-I---Petition was neither signed by the petitioner nor properly verified in accordance with law---Affidavit bore inconsistent dates and lacked proper identification of the petitioner---Particulars of counsel---The verification failed to distinguish between facts based on personal knowledge and belief---Even a short affidavit is sufficient if it duly fulfills the requirement of O. VI, R. 15, C.P.C.---It is settled law that when the election petitioner is not personally known to the oath commissioner, he can be identified by an advocate, who is then required to state that election petitioner is personally known to him but when the name of the advocate identifying the deponent is not mentioned on the verification, the same is not valid ---Perusal of verification on the affidavit reflected that the election petitioner declared that he verified his affidavit without specifying which paragraphs he is verifying from his personal knowledge and which paragraphs were correct to his belief---There was a stamp of oath commissioner which reflected a different date of oath---When identification was to be made by an advocate, his name and particulars were required to be mentioned---When the affidavit fulfills requirement of O. VI, R. 15 of the C.P.C. then even a short affidavit is sufficient---Election petition should be properly verified by the petitioner, specifying which facts are based on personal knowledge and which are based on belief---The Tribunal found that the petitioner's affidavit lacked proper verification, with inconsistencies in dates and missing signatures---Tribunal under S. 145(1) of the Elections Act, 2017, dismissed the petition, citing multiple procedural violations.

Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others PLD 2005 SC 600; Khawaja Muhammad Asif v. Muhammad Usman Dar 2018 SCMR 2128; Shamona Badshah Qaisarani v. Election Tribunal, Multan and others 2021 SCMR 988 and Abdul Wahab Baloch v. Imran Ahmad Khan Niazi and others PLD 2019 Lah. 119 ref.

(b) Elections Act (XXXII of 2017)---

----Ss. 137, 144(b), 144(2)(c) & 145---Nomination papers---Misdeclaration of assets---Allegation of non-disclosure of properties gifted to sons of the returned candidate---Misstatement in nomination papers alleged---Benefit not shown---Petitioner alleged that the failure to disclose the gifted assets amounted to a misrepresentation under the Election laws---Validity---No material benefit or advantage was shown to have been derived from the alleged non-disclosure---Sons of returned candidate had separately disclosed the properties in their own nomination forms---The Tribunal found that the petitioner failed to plead or prove any benefit obtained through the alleged misstatement---Election Petition was dismissed, in circumstances.

Khawaja Muhammad Asif v. Muhammad Usman Dar 2018 SCMR 2128 and Shamona Badshah Qaisarani v. Election Tribunal, Multan and others 2021 SCMR 988 ref.

(c) Elections Act (XXXII of 2017)---

----Ss. 144(2)(c) & 145(1)---Affidavit of service---Postal receipts not a substitute---Mandatory compliance required---Held: Election petition was deficient in several respects and therefore not maintainable---Tribunal found that the petitioner failed to submit the mandatory affidavit of service, making the petition defective---Tribunal held that postal receipts alone do not satisfy this requirement---Section 144 of the Elections Act, 2017 required appending an affidavit of service with the election petition to the effect that copies of the election petition along with the copies of all annexures, including list of witnesses, affidavit(s) and documentary evidence have been sent to the respondents by registered or courier service---It was observed that postal receipts were not sufficient to meet the requirement of S. 144(2)(c) of the Act---Tribunal held that the petitioner failed to provide details of any benefits derived from the alleged mis-declaration of assets, making the petition insufficient---Election Petition was dismissed, in circumstances.

Syed Atta Ul Hassan v. Ahmad Nawaz and others 2019 MLD 1013 ref.

Syed Muhammad Kaleem Ahmad Khurshid for Election Petitioner.

Sardar Abdul Majid Dogar for Respondent No. 8.

Ex-parte for Respondents Nos. 1 to 7 and 9 to 19.

2025 C L C 1148

[Lahore]

Before Muzamil Akhtar Shabir, J

HAMNA FAHAD ---Petitioner

Versus

CAPITAL CITY POLICE OFFICER, LAHORE and 3 others ---Respondents

Writ Petition No. 89 of 2025, decided on 3rd January, 2025.

Constitution of Pakistan---

----Art. 199(1)(b)(i)---Guardians and Wards Act (VIII of 1890), Ss.7 & 25---Habeas corpus, writ of---Scope---Recovery of minor from the custody of father temporarily given to him by the Guardian Judge---Petitioner (mother) instead of availing alternate remedy by way of seeking custody of the minor from the Guardian Court opted to approach High Court in the writ of habeas corpus---Contention of respondent (father) was that High Court had no jurisdiction to pass any order as alternate remedy had been availed before the Guardian Judge, who while taking cognizance of the matter had passed order of interim custody of minor in favour of the respondent---Validity---High Court in constitutional jurisdiction although has jurisdiction to handover temporary custody to anyone of the parents by directing them to seek remedy before the Guardian Court, yet as the matter was already pending before the Guardian Court, High Court had not declared that the minors had been snatched forcibly by any of the parent from the other or custody of said parent as illegal and improper which required determination of disputed facts not permissible in the constitutional jurisdiction of the High Court, lest it might prejudice rights of the parties before the Guardian Court where proceedings for custody of minors were pending---Habeas corpus proceedings by its very nature and purport are summary in character and neither controversies were tried nor entire evidence was recorded under ordinary substantive and procedural laws under civil and criminal jurisdiction and such jurisdiction being extraordinary in its very nature should be sparingly used because the plenary jurisdiction in the matter rests under other laws in other forums of special jurisdiction who should normally be allowed to exercise it in accordance with law---High Court refrained itself from passing any order relating to custody of minors, however, in the interest of justice, in order to further regulate the proceedings in the matter certain observations were recorded which the parties were bound to observe---Constitutional petition was disposed of, in circumstances.

Gull Arzoo v. Station House Officer BZ, District Multan 2015 YLR 1765; Mirjam Aberras Lehdeaho v. SHO, Police Station Chung, Lahore and others 2018 SCMR 427 and Nisar Muhammad and another v. Sultan Zari PLD 1997 SC 852 distinguished.

Muhammad Rafique v. Muhammad Ghafoor PLD 1972 SC 6 rel.

Rana Maqsood ul Haq for Petitioner.

Barrister Hassan Khalid Ranjha, Additional Advocate General for official Respondents.

2025 C L C 1158

[Lahore]

Before Khalid Ishaq, J

Mst. SADIQAN BEGUM ---Petitioner

Versus

MUHAMMAD SIDDIQUE ---Respondent

Civil Revision No. 27145 of 2017, heard on 24th February, 2025.

(a) Gift---

----Oral gift---Essential ingredients---Onus to prove---Exclusion of uneducated female member of the family from her share in inheritance---Female heirs' inheritable rights must be protected---Shariah and inheritance law protections to female heirs emphasized---Donee's absence from witness box to prove the alleged gift, effect of---Incurable defect---Fatal defect under Art. 129(g) of Qanun-e-Shahadat, 1984---The instant matter brought into focus the jurisprudential and evidentiary imperatives surrounding the alleged oral transfer of immovable property by way of gift, particularly where such a claim was advanced to circumvent the vested inheritance rights of a female legal heir---Petitioner/plaintiff and respondent/defendant were real siblings and the only legal heirs of their deceased father, who passed away on 08.10.1998---The dispute concerned agricultural land (the "Suit Property")---The petitioner/plaintiff (sister of respondent/defendant who was the beneficiary of the gift) filed a suit on 24.02.2011 seeking cancellation of mutation No. 600 dated 29.04.1998, recorded as a gift in favor of her brother (respondent/defendant) and alleged that the gift mutation was obtained fraudulently and without knowledge, consent, or valid intention of their deceased father---It was contended by the petitioner that after their father's death, the petitioner trusted her brother's assurance that her share had been included in an inheritance mutation; that she accepted small payments under the impression they were her share of the property income; that upon facing financial hardship and requesting to sell her share, the brother refused and she discovered the alleged mutation of gift; that she had no knowledge of such a gift, asserting it was forged and not in accordance with law---It was the case of the respondent that his claim was firmly anchored in lawful entitlement under a gift dated 18.04.1998 from his father which was made during his life---He alleged that all requirements of a valid gift (offer, acceptance, and delivery of possession) were fulfilled---Held: Present case was a typical case where a woman was deprived of her rightful inheritance under the pretense of an alleged oral gift made by the deceased father to her brother---Such claims were often used by male heirs to exclude female relatives, prompting courts to remain vigilant against fraudulent practices involving oral gifts, which were frequently employed to deny women their legal entitlements---The essential legal requirements for validating such transactions, by now, have been firmly established in our jurisprudence and require no further elaboration---While juxtaposing the facts of the case in hand, High Court was of the opinion that both the courts below had acted illegally and with material irregularity while exercising jurisdiction---The respondent as the principal beneficiary and direct participant in the purported gift was the most vital witness to establish its essential elements, yet he conspicuously chose not to appear before the court, offering no reasonable justification for his absence, and instead relied on the testimony of his son, "TS" (DW-7), who appeared merely as his attorney---In the facts and circumstances of the case and in view of the unequivocal position in terms of Art. 129(g) of the Qanun-e-Shahadat, 1984, it did not behoove to reason as to how such fatal and inherent defect escaped the attention of both the Courts below---Respondent/defendant's son was in no position to testify on behalf of his father regarding offer and acceptance of gift---The written statement filed by the defendant/respondent did not find mention the presence of DW-7 on the alleged occasion of oral gift, thus, the mandatory ingredients of offer of gift by the donor and acceptance thereof by donee, had gone abegging in this case---Therefore, non-appearance of defendant/respondent was an incurable defect in his quest to prove the gift---Concurrent findings of the courts below fell within the exception of interference for exercising revisional jurisdiction of the court and the same were therefore set aside---The civil revision was allowed and the suit filed by the petitioner (plaintiff) was decreed as prayed for.

(b) Gift---

----Oral gift---Burden of proof, shifting of---Scope---Burden of proof shifts upon denial of gift---When validity and correctness of a gift transaction is challenged it becomes mandatory and essential for the beneficiary to prove the valid execution of same---Female member of the family deprived by male member of her share in inheritance---In order to prove her case, the petitioner/plaintiff who was deprived by his brother from inheritance of their deceased father, appeared as PW3 and supported the contents of the plaint---She deposed that her deceased father never gifted the suit property to the respondent/defendant (brother of petitioner/plaintiff) and the same was outcome of fraud---She specifically stated that she was never aware of any such transaction---This very statement of the petitioner/plaintiff had clearly shifted the onus of proving onto the respondent/defendant (brother of petitioner/plaintiff) being beneficiary of oral gift which he failed to discharge by shying away from appearance as a witness---The respondent/defendant instead of appearing before the court merely relied on testimony of his son who merely appeared as his father's attorney---It was an unfortunate fact that male members of families deprive their female relatives of their legal entitlement to inheritance and in doing so Sharia and law was violated---Concurrent findings of the courts below fell within the exception of interference for exercising revisional jurisdiction of the court and the same were therefore set aside---The suit filed by the petitioner/plaintiff (female legal heir deprived from inheritance) was decreed as prayed for---Civil revision was allowed, in circumstances.

Muhammad Ejaz and 2 others v. Mst. Khalida Awan and another 2010 SCMR 342 rel.

(c) Gift---

----Inheritance---Oral gift---Deceptive mechanism to usurp inheritance share of female legal heirs---Proof---Threshold test---Legal standards for validating oral gifts---Scope---In our society there has been an unstoppable bent to invent grotesque devices conceived to deprive daughters, sisters, mothers, widows, orphans etc of their share of inheritance; the 'Oral Gift' being the most fancied of all, employed by unscrupulous male members of the family---It is for this reason that there is overwhelming settled jurisprudence in this country to arrest all such emblems of frauds, forgery, impersonations and uncalled for persuasions, nevertheless, the menace continues---The threshold tests of such transactions are now etched in our jurisprudence as tablet of stone, hardly requiring any further quest, however, if one needs reiteration, following principles be strictly adhered to, particularly in the context of the case in hand: (i) Beneficiary of the impugned transaction of gift/transfer of immovable property(s) bears the heavy onus to prove the transaction; (ii) The beneficiary of a gift has to plead and prove three mandatory ingredients of gift i.e. declaration/offer by the donor, acceptance of gift by the donee; and, delivery of possession under the gift; (iii) The possession of immovable property by one of the siblings/LRs to the exclusion of others will be treated as constructive possession on behalf of all others, unless proved otherwise ; (iv) In case of oral transactions, it is mandatory for a beneficiary of oral transaction to prove the same through positive evidence by supplying mandatory material particulars in the pleadings i.e. the time and date, the venue, and the persons/witnesses in whose presence the alleged transaction was brought about; (v) The oral transaction of transfer of immovable property, be it sale, gift/tamleek, surrender or will etc. has to be proved separately from its incorporation/attestation in revenue record by way of sanctioning of the mutation since a mutation cannot by itself be considered a document of title; (vi) Where a gift, which excluded a legal heir, irrespective of whether such transaction is evidenced by registered deed, the donee is required to prove original transaction and must justify the disinheritance of a legal heir from the estate; (vii) Parties are bound by their pleadings; no amount of evidence can be led beyond the scope of pleadings; and in case any such evidence is brought on record, the Court cannot consider and rely upon the same and has to discard it; (viii) Mere efflux of time does not extinguish the right of inheritance, thus, the question of limitation in case of inheritance and fraud is not attracted and becomes insignificant.

Muhammad Sarwar v. Mumtaz Bibi and others 2020 SCMR 276; Mst. Parveen (deceased) through L.Rs. v. Muhammad Pervaiz and others 2022 SCMR 64; Mst. Hayat Bibi and others v. Alamzeb and others 2022 SCMR 13; Islam ud Din (deceased) through L.Rs. and others v. Mst. Noor Jahan (deceased) through L.Rs. and others 2016 SCMR 986; Phull Peer Shah v. Hafeez Fatima 2016 SCMR 1225; Peer Baksh through L.Rs. and others v. Mst. Khanzadi and others 2016 SCMR 1417; Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1; Ibrahim Kamal v. Mst. Malooka Bibi and others 2012 SCMR 1; Khaliqdad Khan and others v. Mst. Zeenat Khatoon and others 2010 SCMR 1370; Bilal Hussain Shah and another v. Dilawar Shah PLD 2018 SC 698; Khalid Hussain and others v. Nazir Ahmad and others 2021 SCMR 1986; Government of Khyber Pakhtunkhwa through Chief Secretary Civil Secretariat, Peshawar and others v. Shah Faisal Wahab and others 2023 SCMR 1642; Mst. Tahira Samina and others v. Javed Saeed Tariq and others 2024 SCMR 24; Mst. Saadia v. Mst. Gul Bibi 2016 SCMR 662; Khalida Idrees and others v. Anas Farooq Chaudhary and others PLD 2018 Lah. 819; Mst. Rasheeda Bibi v. Mukhtar Ahmad and others 2008 SCMR 1384; Islam-ud-Din through L.Rs. and others v. Mst. Noor Jahan through L.Rs. and others 2016 SCMR 986; Mst. Shafqat Parveen v. Muhammad Iftikhar Amjad and others 2012 SCMR 1602; Rehmat Noor v. Zulqarnain 2023 SCMR 1645; Syed Ahmad v. Ali Akbar and others 2021 SCMR 743; Agha Syed Mushtaque Ali Shah v. Mst. Bibi Gul Jan and others 2016 SCMR 910; Fareed and others v. Muhammad Tufail and another 2018 SCMR 139; Muhammad Shafiq Ullah and others v. Allah Bakhsh (deceased) through L.Rs. and others 2021 SCMR 763; Saddaruddin (since deceased) through L.Rs. v. Sultan Khan (since deceased) through L.Rs. and others 2021 SCMR 642; Muhammad Riaz and others v. Mst. Badshah Begum and others 2021 SCMR 605; Atta Muhammad and others v. Mst. Munir Sultan (deceased) through her L.Rs. and others 2021 SCMR 73; Muhammad Yaqoob v. Mst. Sardaran Bibi and others PLD 2020 SC 338; Jubilee General Insurance Co. Ltd. Karachi v. Ravi Steel Company, Lahore PLD 2020 SC 324; Muhammad Nawaz and others v. Sakina Bibi and others 2020 SCMR 1021; Moiz Abbas v. Mrs Latifa and others 2019 SCMR 74; Naveed Akram and others v. Muhammad Anwar 2018 SCMR 1095; Allah Ditta and others v. Manak alias Muhammad Siddique and others 2017 SCMR 402; Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1360; Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1300; Mst. Brikhna v. Faiz Ullah Khan and others 2020 SCMR 1681; Fazal Ellahi (deceased) through its Legal Heirs v. Mst. Zainab Bibi 2019 SCMR 1930; Ghulam Sarwar (deceased) through L.Rs. and others's case 2019 SCMR 567; Phul Peer Shah v. Hafeez Fatima 2016 SCMR 1225; Muhammad Ishaq v. Muhammad Shafiq and 9 others 2007 SCMR 1773; Haji Muhammad Anwar v. Muhammad Ahmed and others 2007 SCMR 1961; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Aurangzeb through L.Rs. and others v. Muhammad Jaffar and another 2007 SCMR 236; Mst. Janntan and others v. Mst. Taggi through L.Rs. and others PLD 2006 SC 332; Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688; Muhammad Lehrasab Khan v. Mst. Aqeel un Nisa and 5 others 2001 SCMR 338; Muhammad Ishaq and another v. Mst. Gazala Riaz and 8 others 1997 SCMR 974; Mst. Noor Fatima and another v. Begum Bibi and another 1990 SCMR 629; Fareed and others v. Muhammad Tufail and another 2018 SCMR 139; Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others 2014 SCMR 914; Combined Investment (Pvt.) Ltd. v. Wali Bhai and others PLD 2016 SC 730; Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21; Messrs Essa Engineering Company Pvt. Ltd. and another v. Pakistan Telecommunication Company Limited and another 2014 SCMR 922; Mohammad Boota (deceased) through L.Rs. and others v. Mst. Fatima daughter of Gohar Ali and others 2023 SCMR 1901; Noor Din (deceased) through L.Rs. v. Pervaiz Akhtar and others 2023 SCMR 1928; Salamat Ali and others v. Muhammad Din and others PLD 2022 SC 353; Syed Kausar Ali Shah and others v. Syed Farhat Hussain Shah and others 2022 SCMR 1558; Faqir Ali and others v. Sakina Bibi and others PLD 2022 SC 85; Muhammad Sharif and others v. MCB Bank Limited and others 2021 SCMR 1158; Haji Wajdad v. Provincial Government through Secretary Board of Revenue, Government of Balochistan, Quetta and others 2020 SCMR 2046; Shabla and others v. Ms. Jahan Afroz Kilat and others 2020 SCMR 352; Ghulam Farid and another v. Sher Rehman through L.Rs. 2016 SCMR 862; Syed Mehmood Ali Shah v. Zulfiqar Ali and 5 others PLD 2013 SC 364; Messrs Paramount Spinning Mills Ltd. v. Customs, Sales Tax and Central Excise Appellate Tribunal and another 2012 SCMR 1860; Muhammad Iqbal and 5 others v. Allah Bachaya and 18 others 2005 SCMR 1447; Muhammad Zubair and others v. Muhammad Sharif 2005 SCMR 1217; Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212; Khan Muhammad through L.Rs. and others v. Mst. Khatoon Bibi and others 2017 SCMR 1476; Muhammad Mahmood Shah v. Syed Khalid Hussain Shah and others 2015 SCMR 869; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Arshad Khan v. Mst. Resham Jan and others 2005 SCMR 1859; Khair Din v. Mst. Salaman and others PLD 2002 SC 677; Mst. Gohar Khanum and others v. Mst. Jamila Jan and others 2014 SCMR 801 and Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 rel.

Mst. Nagina Begum v. Mst. Tahzim Akhtar and others 2009 SCMR 623 ref.

(d) Gift---

----Oral gift, proof of---Constructive possession, principle of---Scope---Continuous possession by male heir deemed constructive on behalf of sister (female heir)---No presumption of gift merely due to possession of sole male heir---Burden of proof not discharged by mere possession---In absence of proof of a valid gift the continuous possession of the respondent/defendant (brother of petitioner/plaintiff) being the only male surviving member of the family was constructive possession on behalf of her sister (petitioner/plaintiff), an uneducated village lady---Possession of the suit property by the only brother of the petitioner/plaintiff lady could not solely confirm the transaction of the impugned gift---Merely because the respondent/defendant (brother) was in possession of the land did not mean, let alone established, that the land was gifted to him, however, it itself confirmed that he took advantage of his gender and position and made the best out of the vulnerability of a dependent female---Civil revision was allowed and suit filed by petitioner/plaintiff (female heir) was decreed.

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

----O.VI, R.7---Oral gift---Proof---Failure to plead essential ingredients of oral gift---Oral gift claims must disclose time, place, and witnesses in the pleadings---Written statement lacking particulars of oral gift---No mention of date, time, venue or witnesses of the alleged transaction---Inherent pleading defects cannot be cured by subsequent evidence---Evidence beyond pleadings is impermissible---Defendant's (beneficiary's) failure to plead core elements of gift rendered the entire gift transaction unsustainable in law---A perusal of the written statement filed by the defendant/respondent led to only one inescapable conclusion that the defendant had failed to plead the necessary ingredients of oral transaction of gift---Neither the specific venue of the oral transaction of gift was mentioned nor its date, time and witnesses had been spelt out---So far as the date of impugned oral transaction was concerned, it further destroyed the case of the defendant/respondent; para 3 of the preliminary objections of the written statement pleaded that on the day of transaction of oral gift i.e. 18.04.1998 rappat roznamcha waqiati No. 371 was recorded by the Patwari of revenue estate which made it abundantly clear that no amount of evidence could cure this inherent defect of pleadings, which conspicuously failed to put forth the name of the witnesses of the oral transaction, and the exact date, time and venue thereof---Statements of defendant's son were beyond the scope of pleadings and in terms of O. VI, R. 7 of C.P.C., no amount of evidence could be led or considered which was beyond pleadings---The suit filed by the petitioner/plaintiff (female legal heir deprived from inheritance) was decreed as prayed for---Civil revision was allowed, in circumstances.

(f) Islamic law---

----Inheritance---Oral gift---Relinquishment of inheritance share by vulnerable female heirs in favour of male heirs---Such relinquishment of inheritance share by female heirs is contrary to public policy and Shariah---Strict burden to prove voluntary relinquishment by female legatee---Advantageous familial positions cannot be used to extract implied consent from vulnerable females to relinquish their inheritance share---Inheritance rights of female heirs must be jealously guarded---In the present case the plaintiff's/petitioner's entitlement in her father's estate was a common ground; being a female in a muslim household, it was her due, conferred by Divine Law, recognized by the law of the land; it was so ordained in Sura Al-Nisa (4/10)---Given the preponderance of conferment, such a right, rooted into personal law, has to be jealously guarded, therefore, a heavy onus is cast upon the claimant to demonstrate that a female legatee had parted with her entitlement by choice and for considerations, consciously, without duress or uncalled for persuasions by those placed qua her in advantageous positions---Male heirs frequently resorted to fraud and other tactics to deprive female heirs from their share of inheritance---Such deprivation caused suffering to those deprived, and it also unnecessarily taxed the judicial system of the country, resulting in needless waste of resources---Each and every day that a male heir deprived a female heir was also an abomination because it contravened what has been ordained by Almighty Allah---Civil revision was allowed and suit filed by petitioner/plaintiff (female heir) was decreed.

Mst. Aksar Jan and others v. Mst. Shamim Akhtar and others 2025 SCMR 88; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Shabla and others v. Ms. Jahan Afroz Khilat and others 2020 SCMR 352; Tahsimullah v. Mst. Parveen (deceased) through L.Rs. and others 2022 SCMR 346; Mst. Parveen (deceased) through L.Rs. v. Muhammad pervaiz and others 2022 SCMR 64 and Ghulam Qasim and others v. Mst. Razia Begum and others PLD 2021 SC 812 rel.

(g) Punjab Land Revenue Act (XVII of 1967)---

----S.42---Oral gift---Mutation---Proof and scope---Mutation alone does not confer legal title to immovable property---No evidence existed of the alleged oral gift transaction---Having concluded that there was absolutely no evidence regarding transaction of impugned gift and that a mutation could not by itself be considered a document of title, it was evident that even the impugned mutation had not been proved in terms of S. 42 of the Punjab Land Revenue Act, 1967, which required that such mutation had to be presented and sanctioned in the common assembly (Jalsa-e-Aam) of the estate concerned---Civil revision was allowed and suit filed by petitioner/plaintiff (female heir) was decreed.

Mian Tariq Hussain for Petitioner.

Respondent proceeded against ex-parte vide order dated 02.02.2023.

Khawaja Mohsin Abbas, Additional Advocate General for Respondent (on Court's call).

2025 C L C 1186

[Lahore (Bahawalpur Bench)]

Before Ahmad Nadeem Arshad, J

Sahibzadi SAIRA MEHREEN ABBASI and others ---Petitioners

Versus

FEDERATION OF PAKISTAN and others ---Respondents

Writ Petitions Nos. 2916 of 2006 and 7305 of 2019, decided on 8th April, 2024.

Acceding State (Property) Order, 1961 (P.O. No. 12 of 1961)---

----Art. 3---Constitution of Pakistan, Art. 199---Notification No. SRO-436(I) 2006 dated 10-05-2006 issued by Government of Pakistan through Secretary States and Frontier Regions Division---Constitutional petition---Maintainability---Acceding State property---Distribution among legal heirs---Petitioners were aggrieved of Notification No.SRO-436(I) 2006 dated 10-05-2006 issued by Government of Pakistan through Secretary of States and Frontier Regions Division, whereby specific Wandas regarding the property of late Ameer of Bahawalpur Sir Sadiq Muhammad Khan Abbasi, were made in favour of his twenty three legal heirs on the recommendation of Implementation Committee---Validity---Ultimate decision of devolution and distribution of the property of late Ameer of Bahawalpur, as per Acceding State (Property) Order, 1961, rested with the Federal Government---Where any question arises directly or indirectly between persons claiming to be heirs and successors of Ruler of a State or claiming to succeed to the State, concerning devolution and distribution of any property of that State or of the Ruler, such question would be decided under Art. 3 of Acceding State (Property) Order, 1961, by an order of Central Government---Central Government was made the Arbitrator for the settlement of the disputes between the persons claiming to be the heirs and successors of the Ruler, concerning the devolution and distribution of his property---High Court declined to interfere in the matter as it lacked jurisdiction---Constitutional petition was dismissed in circumstances.

Brig. His Highness Nawab Muhammad Abbas Khan Abbasi, Ameer of Bahawalpur v. Government of Pakistan, through the Joint Secretary, Ministry of States and Frontier Regions, Rawalpindi and 23 others PLD 1978 Lah. 1166; Government of Pakistan v. Brig. His Highness Nawab Muhammad Abbas Khan Abbasi and others PLD 1982 SC 367; Brig. H.H. Nawab Muhammad Abbas Khan Abbasi, Ameer of Bahawalpur v. Government of Pakistan and others PLD 1984 SC 67; Prince A.M. Abbasi and another v. Federal Government through Secretary and 24 others PLD 2002 SC 170; Brig. His Highness Nawab Muhammad Abbas Khan Abbasi v. Deputy Land Commissioner, Bahawalpur and others 1982 SCMR 991; Prince A.M. Abbasi v. Land Commission and others (W.P. No. 15422 of 2010) and Sahibzada Muhammad Usman Khan Abbasi and others v. Islamic Republic of Pakistan through Secretary Ministry of Kana and Safron, Islamabad and others vide order dated 21.05.2020 ref.

Abdul Mughni Farani and Syed Fouz-ul-Kabir for Petitioners.

Usman Sultan for Petitioners (in C.M. No. 1723 of 2024).

Tahir Mahmood Mufti, Deputy Attorney General for Pakistan for Respondents.

Ch. Muhammad Jameel, Assistant Attorney General for Pakistan for Respondents.

Malik Zafar Iqbal Awan, Additional Advocate General for Respondents.

Abdul Khaliq Khan Saddozai, Advocate/Law Officer of Cholistan Development Authority Bahawalpur for Respondents.

Rao Nasir Mahmood for Respondents.

Fazal Mahmood Chughtai for Respondents (in C.Ms. Nos. 3738 and 3739 of 2012).

Muhammad Khalid, Deputy Collector Irrigation, Bahawalpur for Respondents.

2025 C L C 1217

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

MUAZZAM ALI GORAYA and others ---Petitioners

Versus

MEMBER (JUDICIAL-I) and others ---Respondents

Writ Petition No. 4078 of 2021, decided on 21st January, 2025.

(a) Punjab Land Revenue Act (XVII of 1967)---

----Ss. 161, 162 & 167---Limitation Act (IX of 1908), S. 3---Assailing an order passed by the Revenue hierarchy---Limitation---Scope---Constitutional petition was filed as the appeal of the petitioners was dismissed by the Member-Board of Revenue on the point of limitation---Validity---Admittedly, the litigation between the parties was initiated under the Punjab Land Revenue Act, 1967 ('the Act 1967'), which is a special law and provides its own period of limitation for appeals---Section 161 of the Act, 1967 deals with filing of appeal whereas period for filing is provided under S. 162 of the Act, 1967, which clearly manifests that ninety days are prescribed for filing of appeal against the order of the Commissioner to the Board of Revenue---Pertinently, provision of S. 167 of the Act, 1967 expressly provides that limitation shall be governed by the provisions of Limitation Act, 1908, in filing of appeal, review or revision filed under the Act, 1967---Impugned order showed that the order passed by the Commissioner was assailed before the Member-Board of Revenue, after inordinate delay of one year and 21 days---Question of limitation is of significance importance---In terms of S. 3 of the Limitation Act, 1908, every court is bound to consider such question despite not being raised by the parties to the lis, which has paramount importance, as with the afflux of time certain rights do accrue in favour of the adversary, which cannot be taken away in a slipshod manner---The object for framing the law for the purpose of regulating the limitation was to push the parties to file their respective claims within stipulated period---The time period provided for filing the proceedings in terms of appeal, review or revision petition cannot be lightly ignored or brushed aside---Petitioners fully knew factum of litigation history and passing of order by the Commissioner and to assail it before the Board of Revenue in terms of S. 161(1)(c) of the Act, 1967 within the statutory period of limitation but they remained sleeping for more than one year---Law helps the vigilant and not the indolent---When a law describes or requires a thing to be done in a particular manner, it should be done in that manner or not at all---Petitioners failed to point out any illegality or material irregularity in the impugned order, warranting interference by this/High Court in exercise of constitutional jurisdiction---Constitutional petition was dismissed , in circumstances.

Lahore Development Authority v. Mst. Sharifan Bibi and another PLD 2010 SC 705; Muhammad Azhar Khan and another v. Assistant Commissioner/Collector, Toba Tek Singh and others 2006 SCMR 778; Aftab Iqbal Khan Khichi and another v. Messrs United Distributors Pakistan Ltd. Karachi 1990 SCMR 1326 and Attaullah Khan v. Ali Azam Afridi and others 2023 PLC (C.S) 182 ref.

(b) Punjab Land Revenue Act (XVII of 1967)---

----Ss. 161, 162 & 167---Constitution of Pakistan, Art. 199---Principle of laches---Constitutional petition, filing of---Limitation---Constitutional petition was filed as the appeal of the petitioners was dismissed by the Member-Board of Revenue on the point of limitation---Validity---Present Constitutional petition was filed after lapse of five months and sixteen days calling in question the impugned order, without explaining any convincing reasons for the inordinate delay, as such principle of laches was applicable upon present case as 'three months' time was considered reasonable for a party to assail an adverse order in Constitutional jurisdiction of the High Court---Constitutional petition was dismissed, in circumstances.

Civil Aviation Authority through Director General and 3 others v. Mir Zulfiqar Ali and another 2016 SCMR 183; State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280 and Member (S&R)/Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore and another v. Syed Ashfaque Ali and others PLD 2003 SC 132 ref.

(c) Punjab Land Revenue Act (XVII of 1967)---

----Ss. 161, 162 & 167---Constitution of Pakistan, Art. 199---Assailing an order passed by Revenue hierarchy---Limitation---Constitutional petition, filing of---Scope---Constitutional petition was filed as the appeal of the petitioners was dismissed by the Member-Board of Revenue on the point of limitation---Validity---Exercise of Constitutional jurisdiction in terms of Art. 199 of the Constitution is discretionary which can only be invoked in extraordinary and exceptional circumstances---High Court while invoking its constitutional jurisdiction always exercises restraint in interfering with the judgment or order passed in exercise of revisional jurisdiction unless some perversity or patent illegality is floating on the surface of record----Constitutional jurisdiction can only be exercised in such an eventuality if the impugned judgment or order suffers from certain legal infirmities or patent illegalities, resulting into failure of justice---Petitioners failed to point out any illegality or material irregularity in the impugned order, warranting interference by this/High Court in exercise of constitutional jurisdiction---Constitutional petition was dismissed, in circumstances.

Hassan Raza Pasha and Abdul Basit Khan Tanoli, Advocates Supreme Court for Petitioners.

Ajam Naz Malik and Raja Muqsit Nawaz Khan for Respondent No. 7.

2025 C L C 1233

[Lahore (Multan Bench)]

Before Raheel Kamran, J

MUHAMMAD SHOAIB IQBAL ---Petitioner

Versus

GOVERNMENT OF THE PUNJAB and others ---Respondents

W.P. No. 19728 of 2023, heard on 20th November, 2024.

Punjab Local Government Act (XXXIII of 2022)---

----S. 186---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Transfer and posting---Security of tenure for the Chief Officer and other officers of the local governments---Petitioner assailed notification of his transfer and posting on the analogy of earlier decision of High Court in similar matter on the basis of security of tenure---Respondent-department took the plea of difference of status of the posts as Chief Officer in the earlier case and as Sub-Engineer in the case of petitioner---Validity---Section 186 of the Punjab Local Government Act, 2022, (Act) refers to all Chief Officers and such other officers of the Local Governments that may be specified by the Secretary from time to time---Petitioner was transferred and posted as Sub-Engineer by the Secretary Local Government and Community Development Department, thus, he fell within the category of 'such other officers' specified by the Secretary---Petitioner had been transferred within a span of fourteen months and was transferred through the notification just after four months, which was against the ordinary tenure provided in S. 186 of the Act---Competent authority can transfer an officer on administrative grounds, but if the same is tainted with mala fide or any external influence or any other arbitrary reason or a reason contrary to the settled principles of transfer/posting, the same is void ab initio---Right of an employee/officer against displacement or transfer is accepted only when the same is passed on extraneous consideration and it cannot be claimed as a matter of right---Constitutional petition was allowed, in circumstances.

Muhammad Ilyas Khan v. Senior Member, Board of Revenue, N.W.F.P., Peshawar and others 2011 PLC (C.S.) 935 and Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195 rel.

Zakriya Moon Gill for Petitioner.

Kanwar Sajid Ali, Assistant Advocate General for the Province of Punjab.

2025 C L C 1243

[Lahore]

Before Abid Hussain Chattha, J

CARGO UNITED GOODS TRANSPORT COMPANY through Partner and others ---Petitioners

Versus

PROVINCE OF PUNJAB through Additional Chief Secretary and 6 others ---Respondents

Writ Petitions Nos. 51697 of 2023 and 66220 of 2024, decided on 23rd January, 2025.

Constitution of Pakistan---

----Arts. 2-A, 4, 9, 18, 23, 24 & 199---Constitutional petition---Judicial review---Unlawful impounding, confiscating and detaining of private vehicles by State functionaries/police---Violation of fundamental rights---Losses caused to vehicle and goods---Compensation---Determination---Petitioners claimed compensation of losses suffered by them and sought declaration to the effect that the arbitrary act of impounding, confiscating and detaining their vehicles was unlawful and unconstitutional---Held, that in the last resort in terms of constitutional dispensation, High Court had to answer the aforesaid questions itself in exercise of its powers of judicial review, however, an opportunity was allowed to the Government to determine the validity, constitutionality and legality of the actions complained of by the petitioners in the first instance, particularly when the petitioners had sought immediate compensation from the State regarding their actual losses in terms of burnt/lost goods and vehicles along with appropriate actions against Police and Traffic Officials found involved in unlawful acts which led the petitioners to suffer huge losses and required a thorough impartial and unbiased inquiry for prompt redressal of grievances of the petitioners---Chief Secretary, Punjab, was directed to constitute a committee to thoroughly investigate allegations of the petitioners and if found true, make recommendations to the Government for due compensation to the petitioners and identify the role of Police and Traffic Officials who led the vehicles to the occasion of incidents, which caused losses to the petitioners---Constitutional petitions were disposed of, in circumstances.

Mahmood A. Sheikh and Muhammad Faizan Saleem for Petitioners.

2025 C L C 1253

[Lahore (Multan Bench)]

Before Sultan Tanvir Ahmad, J

ABDUL GHAFFAR ---Appellant

Versus

UMAR FAROOQ ---Respondent

R.F.A. No. 27 of 2020, heard on 19th December, 2024.

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

---O.XXXVII, Rr. 2(2), 2(3), 4, 7 & 10---Suit for recovery on the basis of cheque---Form of leave to defend application---Leave to defend granted to appellant but appellant failing to file written statement---Circumstances where leave to defend application can be considered as written statement---Scope---Leave to defend application can be considered as written statement where it would not have prejudicial effect to the other side---Once leave is granted suit is to be converted to regular civil suit and is to be decided under general procedure of C.P.C.---Facts in brevity were that the respondent filed a suit for recovery against the appellant, whereby, it was alleged that the appellant had borrowed the amount and issued the cheque in repayment which was dishonored upon presentation---Leave to defend was granted to the appellant, however, the appellant repeatedly failed to file a written statement despite multiple opportunities and was eventually proceeded against ex-parte---The Trial Court recorded the respondent's evidence and decreed the suit in favour of the respondent---The appellant challenged this decree through the present regular first appeal contending that the leave application should have been treated as the written statement and that he was wrongly proceeded against ex-parte---Held: In absence of written statement, defense on counter-affidavit could be considered to frame issues for advancement of justice provided it did not have prejudicial effect to the other side, however, the appellant could not take benefit of this in the instant case as leave was not granted to the appellant upon him showing any plausible defense but due to statement of the plaintiff that he had no objection to grant leave subject to furnishing surety and this was also accepted by the appellant and then he was directed to file written statement---Appellant kept on seeking adjournments for more than two months for filing written statement---It was not a case where the leave was also in the form of written statement or it contained essentials given in O. VIII of C.P.C.---The appellant had never requested before the Trial Court to treat his leave as written statement---Absolute last opportunities were granted to the appellant on his specific requests and fine was also imposed but all in vain---Finally, the right to file written statement was closed---The respondent appeared as PW-1 and supported the contents of the suit---He stated that in order to repay the loan, the cheque was issued by the appellant; that it was presented in his account, however, the same was dishonored and returned---The signatures on the cheque were not denied even in the leave application---Relationship manager of the bank confirmed that the cheque was dishonoured---Witnesses of the plaintiff stood by the respondent regarding plea of loan---The stamp-vendor supported the respondent as to issuance of stamp paper on which the agreement was written---Notary public also appeared and verified the agreement containing his signatures---There was nothing in rebuttal---The present appeal was dismissed, in circumstances.

Mst. Suriya Waseem Usmani and 9 others v. L & M International (Pvt.) Ltd. and another 2002 CLD 624 ref.

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

----O.XXXVII, R.2(2)---Suit for recovery on the basis of cheque---Where leave to defend is not granted---Consequences---The defender of suit filed in summary jurisdiction first has to show a plausible defense---Once success is achieved in doing so, conditional or unconditional, leave can be granted---Failure at this step can have consequence i.e. the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree.

Haji Abdul Wahid v. Hoechst Pakistan Limited and another 1993 CLC 1291 ref.

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

----O.XXXVII, R.2(3)---Suit for recovery on the basis of cheque---Procedure when leave to defend is granted---When the defendant succeeds in obtaining leave, the procedure of suits instituted in the ordinary manner is to be followed---Once the leave is granted, the suit shall be converted into a regular civil suit and will be decided in accordance with the general procedure prescribed in C.P.C.

Haji Abdul Wahid v. Hoechst Pakistan Limited and another 1993 CLC 1291; Muhammad Ali Khalid v. Muhammad Talha 2024 CLC 1184; Sahibzada Azhar Saleem v. Muhammad Hanif 2002 MLD 696 and Irfan Fazal v. Zahid Iqbal 2004 CLC 384 ref.

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

----O.VIII, Rr.3, 4 & 10---Ordinary procedure and essentials of written statement---Evasive denial---Scope---Duty of defendant to specifically deny allegations with substance---Allegation of fact in the plaint must not be denied evasively---Consequences of failure to file written statement stated---The ordinary procedure and essentials of written statement are given in O. VIII of the C.P.C.---Order VIII, Rule 3 of the C.P.C. does not permit to deny generally the grounds alleged by the plaintiff---The defendant has to deal specifically with each allegation of fact of which he does not admit the truth---Rule 4 of Order VIII, C.P.C. provides that where a defendant denies allegation of fact in the plaint, he must not do so evasively, but answer the point of substance---Order VIII, Rule 10 of the C.P.C. besides other consequences, provides that when any party from whom a written statement is required, but the party fails to file it, the court can make an order in relation to the suit as it thinks fit.

Haji Muhammad Siddique's case 2003 CLD 1003 ref.

Ch. Aftab Shabbir Arain and Safdar Abbas Anjum for Appellant.

Muhammad Ashraf Qureshi and Mian Ansar Ahmad Hayat for Respondent.

2025 C L C 1268

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

ASIF ZAHOOR ---Appellant

Versus

MUHAMMAD HANIF through Special attorney ---Respondent

F.A.O. No. 02 of 2024, heard on 7th April, 2025.

(a) Cantonments Rent Restriction Act (XI of 1963)---

----Ss. 2(j), 17, 17(8), 17(9) & 24 ---Ejectment application---Default in payment of rent and personal bona fide need of the landlord---Tentative rent order passed, non-compliance of---Eviction of tenant ordered---Tenancy relationship, denial of---Tenant, definition of---Scope---Person remaining in possession and paying rent qualifies as tenant, even after expiry of prior tenancy agreement---Respondent (landlord) filed an ejectment application seeking eviction of appellant (tenant) on the grounds of default in payment of rent and personal bona fide need---Initially, the appellant had entered into a written tenancy agreement with the respondent dated 15.05.2018 and upon its expiry, a new alleged agreement was executed between the respondent (landlord) and the appellant's (tenant's) wife, effective from 10.03.2020 to 10.05.2025---The appellant (tenant's), in defense, claimed he was no longer a tenant and had been wrongly impleaded, as the tenancy had been transferred to his wife---During proceedings before the Additional Rent Controller, a tentative rent order was passed on 22.09.2023---The respondent later filed an application under S. 17(9) of the Cantonments Rent Restriction Act, 1963 (the "Act, 1963"), alleging non-compliance with the tentative rent order by the appellant---The Additional Rent Controller accepted this application, struck off the appellant's defense, and ordered him to vacate the premises within 30 days vide order dated 11.12.2023---The appellant challenged this eviction in the present appeal, arguing that the tenancy relationship no longer existed between him and the respondent, thus precluding the Additional Rent Controller from passing any order against him---The proposition placed for determination before the High Court was that "where an individual remained in possession of the rented premises and continued to tender rent payments, notwithstanding the expiration of the original tenancy agreement executed in his name and the subsequent execution of a fresh tenancy agreement in favour of his spouse, did such continued occupation and conduct sustain his status as a tenant within the contemplation of section 2(j) of the Act, 1963, and did his failure to comply with a tentative rent order lawfully warranted the striking off of his defence"---Held: As per the definition provided in S. 2(j) of the Act, 1963 a tenant can be a person, who undertakes or is bound to pay rent as consideration for the possession or occupation of a building by him or by any other person on his behalf and it includes any person, who continues to be in possession or occupation of the building after termination of his tenancy and in the event of death of the tenant, his heirs and successors and after termination of the tenancy, his heirs and successors who continue to be in possession or occupation of the building---In the instant case, though a fresh tenancy agreement was executed between the respondent and wife of the appellant but the record revealed that the appellant kept depositing the monthly rent of the rented premises to the respondent even after the execution of fresh tenancy agreement---The appellant was thus a tenant for all intents and purposes---The appellant failed to point out any material irregularity justifying interference with the impugned order---The appeal was dismissed, in circumstances.

(b) Cantonments Rent Restriction Act (XI of 1963)---

----Ss. 2(j), 17, 17(8), 17(9) & 24---Eviction of tenant---Non-compliance with tentative rent order passed by Rent Controller, consequences of---Scope---Failure to deposit rent, as ordered under S. 17(8) of the Cantonments Rent Restriction Act, 1963 (Act, 1963), leads to striking off defence and eviction without further proceedings as provided under S. 17(9) of the Act, 1963---Compliance with tentative rent order is mandatory to sustain defence---Eviction order issued for failure to comply with tentative order---Held: Section 17 of the Act, 1963 outlined the grounds for eviction of a tenant ---Subsection (8) of S. 17 ordains that on the first hearing of proceedings under this section or as soon thereafter as may be but before the issues are framed, the Controller shall direct the tenant to deposit in his office before a specified date all the rent due from him, and also to deposit regularly till the final decision of the case, before the 5th day of each month, the monthly rent which subsequently becomes due, and if there be any dispute as to the amount of rent due, the Controller shall determine such amount approximately---Whereas subsection (9) of S. 17 of the Act, 1963 provides the consequences of non-compliance of tentative rent order passed in terms of Subsection (8)---The Additional Rent Controller was fully justified to pass the tentative rent order, which admittedly was not complied with by the appellant (tenant)---As per S. 17(9) of the Act, 1963 if the tenant fails to deposit the amount of rent before the specified date or, as the case may be, before the 5th day of the month, his application, if he is a petitioner, shall be dismissed, or his defence, if he is a respondent, shall be struck off, and the landlord shall be put in possession of the building without any further proceedings---Once, the appellant failed to comply with the tentative rent order, no option was left with the Additional Rent Controller, except to strike off his defence and to pass the eviction order, which was unexceptionable in the circumstances---The appellant had failed to point out any material irregularity justifying interference with the impugned order---The appeal was dismissed, in circumstances.

Muhammad Yasir for Appellant.

Syed Muzammil Ullah Salari for Respondent.

2025 C L C 1277

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir and Ahmad Nadeem Arshad, JJ

NATIONAL BANK OF PAKISTAN and 4 others ---Appellants

Versus

MUMTAZ AHMAD ---Respondent

I.C.As. Nos. 85, 86, 87 and 88 of 2024, decided on 4th June, 2024.

Law Reforms Ordinance (XII of 1972)---

----S. 3(2), proviso---Intra Court Appeal (ICA), maintainability of---Test to determine whether remedy of ICA is available---The proviso to subsection (2) of S. 3 of the Law Reforms Ordinance, 1972 bars an ICA if an appeal, review, or revision is already available under the law against the original order irrespective of the fact as to whether the remedy was availed or not by a party---Facts in brevity were that the respondent filed a Constitutional petition challenging the order passed by the President of the National Bank of Pakistan (NBP), whereby his appeal for promotion was rejected---The respondent then challenged the rejection order through a Constitutional petition---Single Judge-in-Chambers allowed the petition, set aside the rejection order, and directed NBP to reconsider the promotion case on its own merits in light of relevant Supreme Court judgments---NBP filed the instant Intra Court Appeal against decision of the Single Judge-in-Chambers---Held: As the order passed by NBP on respondent's departmental appeal was challenged through the Constitutional petition which was decided through the impugned order dated 09.05.2024, therefore, proviso to subsection (2) of S. 3 of the Law Reforms Ordinance, 1972, would be applicable for determining the question as to the maintainability of the present Intra Court Appeal---Where there was at least one appeal against the original order in the proceedings, then no appeal would be competent from the order of a Single Judge in Constitutional jurisdiction---The test was whether the original order, passed in the proceedings was subject to an appeal, revision or review under the relevant law, irrespective of the fact as to whether the remedy of appeal was availed or not by a party---Therefore, in view of proviso to S. 3(2) of the Law Reforms Ordinance, 1972, the present Intra Court Appeal against order of Single Judge, whereby order passed by the National Bank of Pakistan in respondent's appeal was set aside, was not maintainable---The present appeal as well as connected appeals were dismissed, in circumstances.

Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344; Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I, Lahore PLD 1985 SC 107 and International Islamic University, Islamabad through Rector and another v. Syed Naveed Altaf and others 2024 SCMR 472 rel.

Faisal Mehmood Ghani for Appellants.

2025 C L C 1291

[Lahore (Multan Bench)]

Before Anwaar Hussain, J

MUHAMMAD ISLAM ---Appellant

Versus

BAGH ALI (deceased) through L.Rs. ---Respondent

R.S.A. No. 230 of 2016, decided on 23rd January, 2024.

(a) Qanun-e-Shahadat (10 of 1984)---

----Arts. 17, 79 & 81---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement---Agreement to sell---Proof---Admission by the executant---Effect---Second marginal witness of agreement, non-producing of---Effect---Suit of the plaintiff (respondent / vendee) was concurrently decreed on the basis that execution of agreement-to-sell was admitted by the defendant (appellant / vendor) in a prior suit---Validity---For the purposes of proof of a document falling under the purview of Art. 17 of the Qanun-e-Shahadat, 1984 ('the Order 1984'), two attesting witnesses must be examined as per requirement of Art. 79 of the Order, 1984---However, the rigors and clutches of the said requirement envisaged under Art. 17 read with Art. 79 of the Order 1984 subside where the execution of a document is admitted---In such a situation, the plaintiff is not bound to produce both the marginal witnesses in order to prove the execution of the agreement---Though, the documents were required to be attested by two witnesses but where the executant admits the execution of the document, then in terms of Art. 81 of the Order, 1984 such document can be used against him though it was required by law to be attested---Article 81 of the Order, 1984 is an exception to the general rule that where a document is required by law to be attested, the same cannot be used in evidence unless two attesting witnesses are called for the purposes of proving its execution---As the agreement in the present case had been admitted in the prior suit filed by the respondent against the appellant, by recording statement before the Trial Court (statement-in-question), the non-production of both the marginal witnesses was not fatal to the case of the respondent---Thus, the suit for specific performance of the contract based on an agreement to sell can be decreed even if the second marginal witnesses of the agreement is not produced by the vendee in compliance of Art. 79 of the Order, 1984 in cases which fall within the purview of Art. 81 which is an exception to the rule contained under Art. 79 of the Order, 1984---Both the Courts below had correctly appreciated the controversy while decreeing the suit of the respondent---Regular second appeal, being merit-less, was dismissed.

Abbas Ali v. Liaqat Ali and others 2013 SCMR 1600 and Abdul Aziz v. Abdul Hameed (deceased) through LRs. 2022 SCMR 842 ref.

Mst. Saeeda Anwar and 3 others v. Malik Bashir Ahmad and others 2009 MLD 1314 and Sheikh Muhammad Munir v. Mst. Feezan PLD 2021 SC 538 distinguished.

(b) Qanun-e-Shahadat (10 of 1984)---

----Arts. 17, 79, 81 & 91---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement---Agreement to sell---Proof---Admission by the executant in prior suit---Effect---Judicial proceedings---Presumption of genuineness---Second marginal witness of agreement, non-producing of---Effect---Suit of the plaintiff / respondent was concurrently decreed on the basis that agreement-to-sell was admitted by the defendant (appellant / vendor) in a prior suit---Validity---As the agreement had been admitted in the prior suit filed by the respondent against the appellant, by recording statement before the Trial Court (statement-in-question), the non-production of both the marginal witnesses was not fatal to the case of the respondent---Moreover, in terms of Art. 91 of the Qanun-e-Shahadat, 1984 ('the Order, 1984'), presumption of genuineness was attached to documents forming part of the judicial proceedings---Statement-in-question (having been exhibited in the present case) pertaining to the agreement was recorded during the judicial proceedings that took place in the a prior suit and fell under the purview of Art. 91 read with Art. 81 of the Order, 1984 and its effect could not be brushed aside lightly---Thus, the suit for specific performance of the contract based on an agreement to sell can be decreed even if the second marginal witnesses of the agreement is not produced by the vendee in compliance of Art. 79 of the Order, 1984 in cases which fall within the purview of Art. 81 which is an exception to the rule contained under Art. 79 of the Order 1984---Both the Courts below had correctly appreciated the controversy while decreeing the suit of the respondent---Regular second appeal, being merit-less, was dismissed.

(c) Qanun-e-Shahadat (10 of 1984)---

----Arts. 17, 79 & 81---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement---Agreement to sell---Proof---Admission by the executant---Effect---Second marginal witness of agreement, non-producing of---Effect---Suit of the plaintiff / respondent was concurrently decreed, on the basis that agreement-to-sell was admitted by the defendant (appellant / vendor) in a prior suit by recording his statement (statement-in-question)---Assertion of the appellant was that the statement-in-question did not belong to him and his signature and thumb impression had been forged and fabricated by playing fraud upon the Court---Held, that said assertion was belied by the report of Finger Expert Bureau which was also available on the record and was duly corroborated by testimony of Inspector Police Finger Expert Print Bureau, Punjab, as a witness of plaintiff; according to which the thumb impression available on the agreement was identical to the specimen thumb impression marked (as D, D/1 and D/2)---Thus, mere assertion of the appellant (that he did not appear in the prior suit and had not recorded any statement nor affixed his thumb impression on the order sheet of the prior suit) could not be relied upon nor the same was sufficient and cogent to rebut the presumption of truth attached to judicial proceedings---Sanctity of highest order was attached to judicial proceedings and to outweigh the same, strong and unimpeachable evidence was to be produced---Appellant had failed to bring on record any such evidence---Both the Courts below had correctly appreciated the controversy while decreeing the suit of the respondent---Regular second appeal, being merit-less, was dismissed.

(d) Qanun-e-Shahadat (10 of 1984)---

----Arts. 17, 79, 81 & 91---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement---Agreement to sell---Proof---Admission by the executant in a prior suit, non-challenging of---Effect---Suit of the plaintiff / respondent was concurrently decreed on the basis that agreement-to-sell was admitted by the defendant (appellant / vendor) in a prior suit by recording his statement (statement-in-question)---Validity---Appellant never assailed the proceedings and the statement-in-question by initiating appropriate proceedings rather denied the same in an oblique manner while filing written statement in the suit instituted by the respondent from which the present second appeal had emanated, which could not denude the earlier proceedings of its genuineness and/or existence unless the same was held to be fraudulent by the said Court---Proceedings carried out in prior suit particularly statement-in-question still held the field and existed in judicial record---In such situation, it was for the Court to look into peculiar facts and circumstances of each case and also the conduct of the parties and their credibility while appreciating the evidence available on record---Both the Courts below had correctly appreciated the controversy while decreeing the suit of the respondent---Regular second appeal, being merit-less, was dismissed.

Mian Mumtaz Ahmad Zahid for Appellant.

Muhammad Khalid Mehmood Ayyaz for Respondent.

2025 C L C 1307

[Lahore]

Before Ch. Muhammad Iqbal and Malik Waqar Haider Awan, JJ

Ms. JAHANARA and 2 others ---Petitioners

Versus

PUNJAB COOPERATIVE BOARD FOR LIQUIDATION through Chairman ---Respondent

Writ Petitions Nos. 14800 and 14799 of 2010, decided on 17th March, 2025.

(a) Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)---

----Ss.5 & 7---Cooperative Boards (PCBL)---Powers and objectives---Property of the Cooperative Board (PCBL) alienated by its Chairman through a private transaction---Powers of the Chairman of Cooperative Board discussed---Mere depositing of amount under an unauthorized/unlawful transaction does not confer any vested legal right---In the present Constitutional petitions, the petitioners challenged an order by the Cooperative Judge dismissing their petitions seeking transfer of shops, based on a private deal with Chairman PCBL, instead of participating in the auction proceedings---High Court considered as to whether the Chairman, PCBL had any jurisdiction to unilaterally alienate the property of PCBL through any private treaty/ negotiation---Held: Perusal of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 showed that no such provision was available in the said enactment whereby Chairman, PCBL was shown competent to pass order for selling the property of the PCBL through any private negotiation / treaty---Moreover, section 5 of the Act ibid empowered the government to constitute a Cooperative Board which shall consist of a Chairman and at least two members---The said Board is bestowed with the jurisdiction under Section 7 of the Act ibid to exercise power as a liquidator under the Cooperative Societies Act, 1925 along with ancillary administrative powers as well---The Chairman, PCBL was not vested with any exclusive power to alienate the properties, assets of the Board through any private treaty or understanding---Even otherwise, no bidder participated in the auction---Attempt of selling through auction remained unsuccessful and present petitioners had not participated in auction process rather they chose a novel avenue to acquire the shops through under the table settlement which always remains vulnerable to collusivety, nepotism, favourtism and corrupt practices and such practice dwindled the legality and veracity of said mode of transactions and thus any arbitrary alienation of public assets at a miserably throw away price remained always open for interference by the competent fora---Further, making of unwarranted deposit of some small amount did not create any right to bound down the owner Board to acknowledge the private treaty and even no document was placed on the record to show that the Chairman was authorized by the Board through any resolution/ consensus of the Board to alienate the shops in question in favour of the petitioners---Petitioners having dragged a state institution in futile and frivolous litigation since the year 2002 without having any sort of valid right were burdened with special cost of Rs.10,00,000/---Petitions were dismissed, in circumstances.

Capital Development Authority, CDA through Chairman, CDA, Islamabad v. Ahmed Murtaza and another 2023 SCMR 61; Province of Punjab through the Deputy Commissioner, Collector District Gujranwala and others v. Zulfiqar Ali and another 2024 SCMR 22 and Javed Hameed and others v. Aman Ullah and others 2024 SCMR 89 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court, invoking of---Scope---Matters against public policies---Contractual matters, enforcement of---Any decision of an authority against the public policies is always void in nature and same is not enforceable through Constitutional jurisdiction of the High Court---Moreover, in contractual matters the Constitutional petition is ordinarily not maintainable.

Mehmood A. Shaikh for Petitioners.

Armaghan Masood Chaudhary for Respondent.

2025 C L C 1320

[Lahore]

Before Rasaal Hasan Syed, J

FARZANA BEGUM ---Petitioner

Versus

MUHAMMAD NAWAZ ---Respondent

C.R. No. 55854 of 2024, decided on 18th September, 2024.

(a) Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 17, 59, 79 & 129(g)---Civil Procedure Code (V of 1908), O.XLI, R.27---Specific performance of agreement to sell---Burden of proof---Scope---Non-fulfilment of requirement to produce two attesting witnesses of the agreement to sell---Effect---Absence of evidence as to bargain of sale between the parties or about the payment or considerations---Adverse presumption---Expert opinion---Relevance---Suit for specific performance instituted by the petitioner was dismissed by the trial as well as appellate courts concurrently---Contention of the petitioner was that since the scribe of the document had been produced, therefore, requirement of Arts. 17 and 79 of the Qanun-e-Shahdat, 1984 (Order) had been fulfilled---Validity---Out of four witnesses to the document only one attesting witness was produced, who too was disbelieved by the courts below and there was no explanation for non-production of the other marginal witnesses---Mandatory requirement of Art. 79 of the Order had not been met as such document could not be proved nor could the petitioner produce admissible or credible evidence to prove the existence of any bargain of sale between the parties or about the payment for consideration, thus, the opinion of expert even if brought on record could not serve any purpose as a substitute for the mandatory requirements of law of evidence---Testimony of the scribe could not be equated with that of an attesting witness as both of them had signed the document in different capacities and with a different state of mind and such scribe did not meet the requirement of Art. 79 of the Order---Adverse presumption under Art. 129(g) of the Order against the person intending to prove the document had to be drawn against the petitioner---Petitioner could not make out any case for interference in the concurrent findings of facts recorded by the courts below and the findings of the courts below were based on correct analysis and appreciation of evidence---Civil revision was dismissed, in circumstances.

Farid Baksh v. Jind Wadda and others 2015 SCMR 1044 and Hafiz Tassaduq Hussain v. Muhammad Din through legal heirs and others PLD 2011 SC 241 rel.

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

----O. XLI, R. 24---Production of handwriting expert qua report already available in evidence---Application for production of handwriting expert at appellate stage---Application for additional evidence at the appellate stage being an attempt to fill up lacuna in evidence could not be allowed.

(c) Qanun-e-Shahadat (10 of 1984)---

----Art. 59---Opinion of expert as a substitution of direct evidence---Scope---Opinion of an expert or the report submitted by him on its own cannot be made basis to disregard the direct evidence---There is no need for the expert opinion which otherwise is nothing but confirmatory and explanatory to the direct evidence.

Mst. Saadat Sultan and others v. Muhammad Zahur Khan and others 2006 SCMR 193 and Qazi Abdul Ali and others v. Khawaja Aftab Ahmad 2015 SCMR 284 rel.

2025 C L C 1382

[Lahore]

Before Shahid Bilal Hassan and Masud Abid Naqvi, JJ

Mst. KHAIR-UN-NISA and others ---Petitioners

Versus

CHAIRMAN, FEDERAL LAND COMMISSION, ISLAMABAD and others ---Respondents

Writ Petition No. 4323 of 2000 and C.M. No. 1 of 2022, decided on 7th May, 2024.

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

----O.VI, R. 17---Plea, raising of---Principle---Alternative or inconsistent plea can be taken but contradictory and mutually destructive pleas cannot be raised. [p. 1385] A

Haji Sultan Abdul Majeed (decd) through Mehboob Sultan and Habib Sultan and others v. Mst. Shamim Akhtar (decd) through Mah Jabeen and others 2018 SCMR 82 rel.

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

----O. I, R. 10(4) & O. VI, R. 17---Constitution of Pakistan, Art. 199---Constitutional petition---Amendment of pleadings---Principle---Impleading necessary party---During pendency of Constitutional petition, petitioner filed an application for amendment of petition by impleading a necessary party as respondent---Validity---Mere delay in filing of such like applications was not a good ground for refusal of the same---Proposed amendment should not introduce a new and changed case/claim and it should not change the nature, complexion and cause of action---Allowing or refusing to allow amendment of pleadings is an act, which goes to the root of the case, because the parties cannot lead evidence beyond their pleadings and if provisions of O. VI, R. 17, C.P.C. are not construed and exercised liberally, it would jeopardize case of the parties---High Court directed petitioner to file amended Constitutional petition under O. VI, R. 17, C.P.C.---Application was allowed, in circumstances.

Lahore Development Authority and others v. Sultan Ahmed and another 2007 SCMR 1682; Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 and Semco Salvage Pte. Ltd. v. m.v. Kaptan Yusuf Kalkavan and another 1993 SCMR 593 rel.

Ali Masood Hayat for Petitioners.

Barjees Iftikhar Bhatti for Petitioner No. 2.

Ch. Bashir Ahmad for Respondents Nos. 1 and 9.

Barrister Taha Shaukat for Respondents Nos. 5 to 8 and 10 to 12.

2025 C L C 1411

[Lahore]

Before Abid Hussain Chattha, J

SIBGHAT ELAHI CHAUHAN ---Petitioner

Versus

THE DEFENCE HOUSING AUTHORITY and 2 others ---Respondents

W. P. No. 8273 of 2024, heard on 23rd October, 2024.

Constitution of Pakistan---

----Arts. 23, 24, 10-A & 199---Protection of property rights---Right to fair trial---Defence Housing Authority (DHA)---Agreements of sale of land in two transactions against exempted plots---Sale of some of the plots after issuance of No Demand Certificate (NDC) without marking any "caution" by DHA---Plea of non-fulfillment of contractual obligations by the land owner---Withholding of NDCs while marking "caution" regarding the remaining plots by DHA on the grounds of pendency of suit and land conveyed to DHA with reference to Khasra Numbers was different from land in possession of DHA---Validity---Act of marking "caution" on the remaining exempted plots of the land owner/petitioner was in gross violation of Arts. 23 & 24 of the Constitution, which guaranteed a fundamental right to every citizen to acquire, hold and dispose of property in any part of Pakistan subject to the Constitution and any reasonable restriction imposed by law in public interest and that no person should be deprived of his property save in accordance with law---After purchase of property of the petitioner by DHA it the latter became exclusive owner of the conveyed land and as such, it had every right to defend the alleged pending suit for partition to protect its rights under the sale deed executed in its favour by the petitioner---Mere pendency of the suit was no ground to mark "caution" on the remaining exempted plots of the petitioner---If there was any grievance of DHA with respect to breach of obligations by the petitioner pursuant to the sale deed executed by him, the DHA was free to avail appropriate remedies available to it under the law to safeguard its interest, however, DHA in its capacity as a Regulator could not transgress its authority by marking "caution" on its own regarding the remaining exempted plots of the petitioner---Constitutional petition was allowed, in circumstances, with a direction to DHA to remove "caution" and issue NDCs to the petitioner regarding the remaining exempted plots.

Raja Haroon Rashid v. Defence Housing Authority through Secretary 2017 CLC 342 rel.

Muhammad Riaz Chopra for Petitioner.

Altaf-ur-Rehman Khan and Ishfaq Amir for Respondents.

2025 C L C 1427

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

MUHAMMAD SALEEM (deceased) through Legal Heirs ---Petitioner

Versus

HABIB-UR-REHMAN ---Respondent

Civil Revision No. 1068-D of 2014, decided on 21st November, 2024.

(a) Punjab Pre-emption Act (IX of 1991)---

----S.13 (1)(a)---Civil Procedure Code (V of 1908), S. 115---Suit for possession through pre-emption---Existence and enforcement of right of pre-emption---Distinction---Discrepancies in the statements/evidence of pre-emptor and his witness as to time, date and place of Talb-i-Muwathibat---Effect---Evidence beyond the scope of pleadings---Existence and enforcement of right of pre-emption are two distinct and different phenomena and merely having a superior right of pre-emption by itself is not sufficient to succeed in a suit for pre-emption---Pre-emptor has to establish the performance of necessary Talbs as required under S. 13 of the Act in order to succeed in a suit for pre-emption---Pre-emptor received information through PW.2 on 17.02.2011 at 10:00 a.m., when he was present in his house in presence of PW.3, however, while appearing as PW.1 the pre-emptor did not mention the time on which information was received from PW.2---Pre-emptor in his plaint stated that he attained knowledge about the sale of the suit land while sitting in his house, but plaint was silent about the exact portion of the house, which was a vast place and non-mentioning of the exact portion by itself was fatal to right of pre-emption---PW.3 did not make clear statement about the place of Talb-i-Muwathibat---PW-3 in his statement only deposed about the date of Talb-i-Muwathibat and did not state about the month and year regarding such material fact, which was fatal for pre-emption suit---Concurrent findings arrived at by both the courts below were based on proper appraisal of evidence and there was no misreading or non-reading of evidence on part of any of the court below---Revisional jurisdiction is to be exercised by High Court while keeping in view the principles enshrined in S .115 of the C.P.C.---Civil revision was dismissed, in circumstances.

Allah Ditta through L.Rs. and others v. Muhammad Anar 2013 SCMR 866; Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302; Noor Muhammad Sultan v. Hafiz Allah Bakhsh 2014 YLR 1381; Muhammad Afzal v. Ali Muhammad 2014 YLR 87; Mst. Zarsheda v. Nobat Khan PLD 2022 SC 21; Muhammad Sarwar and others v. Hashmal Khan and others PLD 2022 Supreme Court 13 and Ghulam Qadir and others v. Sh. Abdul Wadood and others PLD 2016 Supreme Court 712 rel.

(b) Punjab Pre-emption Act (IX of 1991)---

----Ss. 13 & 16---Suit for possession through pre-emption---Death of pre-emptor during pendency of suit---Transfer of right of pre-emption---Scope---Where a pre-emptor dies after making any of the demand under S. 13 of the Punjab Pre-emption Act, 1991, (Act), the right of pre-emption shall transfer to his legal heirs.

(c) Punjab Pre-emption Act (IX of 1991)---

----S. 13(2)---Talb-i-Muwathibat---Burden of Proof---Complete chain of source of information---Informer became acquainted with the sale transaction from one person, who was never produced in evidence in order to prove the source of information---Onus to prove the basic source of information through which the pre-emptor attained the knowledge of sale always rests upon him, however, pre-emptor had failed to establish the whole chain of information---Civil revision was dismissed, in circumstances.

Farid Ullah Khan v. Irfan Ullah Khan 2022 SCMR 1231; Muhammad Riaz v. Muhammad Akram and others 2024 SCMR 692 and Subhanuddin and others v. Pir Ghulam PLD 2015 SC 69 rel.

(d) Punjab Pre-emption Act (IX of 1991)---

----S. 13(1)(a)---Talb-i-Muwathibat---Failure to prove Talb-i-Muwathibat---Effect---Once the pre-emptor failes to prove the first Talb i.e. Talb-i-Muwathibat, which is the basic foundation for the whole edifice of pre-emption right, there remains no need to advert to the second Talb because if first Talb is not proved then the entire structure would crumble down.

Allah Ditta through L.Rs. and others v. Muhammad Anar 2013 SCMR 866; Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302; Noor Muhammad Sultan v. Hafiz Allah Bakhsh 2014 YLR 1381 and Muhammad Afzal v. Ali Muhammad 2014 YLR 87 rel.

Sardar Abdul Raziq Khan for Petitioner.

2025 C L C 1439

[Lahore (Multan Bench)]

Before Sultan Tanvir Ahmad, J

MAQBOOL AHMAD ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others ---Respondents

Writ Petition No. 4183 of 2022, decided on 24th December, 2024.

Civil Procedure Code (V of 1908)---

----O. VI, R. 17---Amendment of pleadings---Principles---Suit for permanent injunction---Subsequent application for amendment to include declaration and challenge to revenue orders---Maintainability---Petitioner sought amendment in the suit after closure of evidence---Upon acceptance of the application by the Trial Court, respondents filed civil revision, which was dismissed---Contention of the petitioner was that the proposed amendment would introduce a new cause of action and change the whole complexion of the suit---Validity---High Court after analyzing various decisions highlighted some important factors, which were only illustrative and not exhaustive, that could be kept in consideration while dealing with the application for amendment; they were (i) the intention of the applicant seeking to amend pleadings; (ii) the question of limitation if applicable; (iii) refusal or acceptance of amendment should not lead to injustice or injury to opponent side; (iv) efforts should be made to avoid multiplicity of litigation; (v) the nature of the suit and cause of action originally set-up, and (vi) if the amendment is necessary for the purpose of determination of the real question in controversy between the parties provided subject matter of suit remains unchanged---Predecessor-in-interest of respondents essentially sought relief that as per mutation he was the owner of the disputed property and the earlier round of litigation initiated in the year 1970, which culminated into passing of a decree, which was not considered by the revenue authorities---Amendment as to addition of word "declaration" in the heading of the amended suit, which was already dealt with in detail, the proposed amendments related to those orders or proceedings of the revenue which were allegedly in defiance of the decree already passed and that hardly had any bearing on the subject matter or the nature of the plaint---High Court held that two courts below had not erred in accepting the application for amendment in the plaint and upheld the decisions of the lower courts---Constitutional petition was dismissed, in circumstances.

Mst. Imam Hussain v. Sher Ali Shah and others 1994 SCMR 2293; Mst. Noor Khatoon through Legal Heirs and another v. Muhammad Shafi 2003 SCMR 542; Atlantic Steamer's Supply Company v. M V. Titisee and others PLD 1993 SC 88; Ghulam Haider v. Muhammad Ayub 2001 SCMR 133; Faisalabad Electric Supply Company Limited v. Munir Ahmad Ranjha and others 2020 CLC 68 and Gulzar Ahmad v. Additional District Judge and others 2019 CLC 1432. ref.

Iftikhar Ahmad v. Muhammad Anwar and others 2024 CLC 1735; Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345; Mst Zubaida Bibi v. Mst. Hashmat Bibi and 2 others 1993 SCMR 1882; Nizam Ullah v. Mst. Gohar Taja and others 2003 YLR 2008; Muhammad Zaman v. Siraj-ul-Islam and 11 others 2013 YLR 1548; Syed Akhlaque Hussain and another v. Water and Power Development Authority, Lahore 1977 SCMR 284; L. J Leach and Co. Ltd. and another v. Messrs Jardine Skinner and Co. (S) AIR 1957 SC 357; Dausa and others v. Province of the Punjab and others 2016 SCMR 1621 and Nazir Ahmad and another v. Sarfraz Ali and 2 others PLD 2013 Lahore 309 rel.

Malik Javaid Akhtar Wains and M. Imran Shahzad Bhatti for Petitioner.

M. Tariq Mahmood Dogar for Respondents Nos. 3(i) to 3(v).

2025 C L C 1456

[Lahore]

Before Jawad Hassan, J

QAMAR-UL-ISLAM ---Petitioner

Versus

PROVINCE OF PUNJAB through District Collector Attock and another ---Respondents

C.R. No. 654 of 2013, heard on 7th May, 2025.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), Arts. 74 & 76---Civil Procedure Code (V of 1908), S. 115---Suit for declaration and injunction---Secondary evidence, proof of---Procedure---Judgments at variance---Suit filed by petitioner / plaintiff was decreed in his favour by Trial Court but Lower Appellate Court dismissed the same---Validity---Petitioner / plaintiff claimed ownership of suit property through his father, as one of his legal heirs---Suit was filed on 08-01-2008 i.e. fifty-eight (58) years after execution and registration of alleged mutation in favour of respondent/Tehsil Municipal Administration---During his lifetime, father of petitioner / plaintiff never asserted any right or claim over the property on the basis of alleged sale deed---Petitioner / plaintiff did not inherit any asserted or recognized right from his predecessor-in-interest, therefore, he lacked locus standi to file civil revision---Petitioner / plaintiff adopted an unconventional method by summoning officials of revenue department to testify existence of alleged registered sale deed---Such document constituted secondary evidence within the meaning of Art. 74 of Qanun-e-Shahadat, 1984---Record was silent as to whether requisite permission for production of secondary evidence was sought or granted under Art. 76 of Qanun-e-Shahadat, 1984---Official witnesses deposed that a copy of registered sale deed dated 03-01-1956 was available on record but the witness had never stated that it was a genuine document---In absence of such compliance, the document could not be treated as admissible evidence---Petitioner / plaintiff nor his father took any steps to assert or reclaim possession thereafter and had failed to refer to any application or proceeding in that regard---As per revenue record for the year 2003-04, respondent/Tehsil Municipal Administration had been lawful owner in possession of suit property since its transfer---Each and every issue was discussed in detail and reasons were assigned by Lower Appellate Court for reversing findings of Trial Court---High Court in exercise of revisional jurisdiction declined to interfere as petitioner / plaintiff failed to point out any jurisdictional error, illegality, material irregularity, or misreading/non-reading of evidence in the judgment passed by Lower Appellate Court---Revision was dismissed, in circumstances.

Muhammad Yaqoob v. Mst. Sardaran Bibi and others PLD 2020 SC 338; Abdul Sattar Khan and another v. Rafiq Khan and others 2000 SCMR 1574; Atta Muhammad v. Nasir-ud-Din PLD 1993 Peshawar 127; Khaliq Dad v. Ahmad Nawaz 2014 MLD 1706; Khawaja Muhammad Khan v. Hayat Khan 1997 MLD 2182; Habibullah Jan and others v. M. Hassan Khan and others 1991 MLD 25; Qasim Khan v. Mirza Ali Khan and others 1990 MLD 2406; Mst. Irum Un Nisa and 8 others v. Mst. Naz Parver and another 2019 CLC 335 and "Haji Atlas Khan and another v. Mst. Mehran Bibi and 5 others 2010 CLC 1629 distinguished.

Haji Muhammad Yunis (Deceased) through legal heirs and another v. Mst. Farukh Sultan and others 2022 SCMR 1282; Mazloom Hussain v. Abid Hussain and 4 others PLD 2008 SC 571; Mst. Rabia Gula and others v. Muhammad Janan and others 2022 SCMR 1009; Haji Wajdad v. Provincial Government through Secretary Board of Revenue Government of Balochistan, Quetta and others 2020 SCMR 2046; Ghulam Abbas and others v. Mohammad Shafi through LRs and others 2016 SCMR 1403; Muhammad Rustam and another v. Mst. Makhan Jan and others 2013 SCMR 299; Kala Khan and others v. Rab Nawaz and others 2004 SCMR 517; Abdul Haq and another v. Mst. Surrya Begum and others 2002 SCMR 1330; Imam Din and 4 others v. Bashir Ahmed and 10 others PLD 2005 SC 418; Mukhtar Ahmad through Legal Heirs v. Muhammad Yunus and 4 others 2001 CLC 1796 and Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398 rel.

Barrister Syed Ali Nouman Shah and Arsalan Qaiser for Petitioner.

Barrister Raja Hashim Javed, Assistant Advocate-General.

Ms. Nabila Rubab, Assistant Attorney General.

Sh. Zamir Hussain, Senior Advocate Supreme Court for Respondent No. 2/TMA, Hazro.

2025 C L C 1497

[Lahore]

Before Sultan Tanvir Ahmad, J

MUHAMMAD RAMZAN (deceased) through L.Rs and others ---Petitioners

Versus

MUHAMMAD SHARIF (deceased) through L.Rs and others ---Respondents

Civil Revision No. 65806 of 2024, decided on 29th October, 2024.

(a) Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement---Limitation---Claim of the plaintiff, that the sellers / vendors (two in number) sold the suit property to him vide the agreement and promised to transfer the suit-property after redemption of mortgage charge from the Bank, was concurrently rejected---Validity---Suit for specific performance was instituted after twenty-five (25) years of the agreement---Admittedly, alleged seller (two in number) have passed away but somehow in the suit or examination-in-chief of petitioner's witnesses even the date of death of alleged sellers is not specified---It came to the surface during cross-examination of one of the plaintiff witnesses that alleged seller died about thirty (30) years prior to recording of the evidence---There is hardly any justification available for instituting the suit after such a long delay from the agreement and decades after the death of the alleged seller---The names of the marginal witnesses are given in the agreement but even those alleged witnesses have passed away---The two Courts below have disbelieved the evidence of the petitioner and the High Court also found that the evidence of the petitioner was not credible---Revision, filed by the plaintiff, was dismissed in limine, in circumstances.

(b) Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement---Evidence, deficiency of---Effect---Claim of the plaintiff, that the sellers / vendors (two in number) sold the suit property to him vide the agreement and promised to transfer the suit-property after redemption of mortgage charge from the Bank, was concurrently rejected---Validity---The names of the marginal witnesses are given in the agreement but even those alleged witnesses have passed away---Though one of the witnesses of petitioner / plaintiff claimed that he is son of one of the marginal witnesses and he was with his father at the time of execution of the agreement, however, in cross-examination he could not even depose as to the date of the agreement and then he stated that he cannot remember the names of the persons who have given their thumb impressions on the agreement---The evidence led by the petitioner is not coherent or confidence inspiring so that it can be said that they have discharged the onus to prove any fact that they asserted---Two Courts below have disbelieved the evidence of the petitioner and the High Court also found that the evidence of the petitioner was not credible---Revision, filed by the plaintiff, was dismissed in limine, in circumstances.

(c) Qanun-e-Shahadat (10 of 1984)---

----Art. 100---Specific Relief Act ( I of 1877 ), S. 12---Suit for specific performance of agreement---Production of document---Thirty years period, reckoning of---Scope---Claim of the plaintiff, that the sellers / vendors (two in number) sold the suit property to him vide the agreement and promised to transfer the suit-property after redemption of mortgage charge from the Bank, was concurrently rejected---Arguments of the petitioner / plaintiff that the period of thirty (30) years for presumption under Art. 100 of Qanun-e-Shahadat, 1984, is to be calculated till the date when the agreement was brought on record, but the Trial Court reckoned this period up-till institution of the suit---Validity---Article 100 of Qanun-e-Shahadat, 1984, stipulates that thirty (30) years are to be taken on the date when a document is produced from any custody---The period of thirty (30) years is to be reckoned, not from the date upon which deed is filed in the Court, but from the date on which it has been tendered in evidence, its genuineness or otherwise becomes the subject of proof---Thus, in the present case, though the Trial Court fell into error while reckoning the period up-till filing of the suit, however, this error has no bearing on the result of the case, keeping in view the facts of the case and the evidence led by the parties---Furthermore, Art. 100 of Qanun-e-Shahadat, 1984, clearly gives discretion to the Court to apply presumption keeping in view the particular case---Two Courts below have disbelieved the evidence of the petitioner and the High Court also found that the evidence of the petitioner was not credible---Revision, filed by the plaintiff, was dismissed in limine, in circumstances.

Bahadar and others v. Sohna and another PLD 1961 (W.P.) Lahore 387; Surendra Krishna Roy and another v. Mirza Mahammad Syed Ali Mutawali and others AIR 1936 Privy Council 15; AIR 1924 Lahore 145; 1925 Madras 184; AIR 1972 Allahabad 406 (V 59 C 108) and 1980 CLC 216 SC (AJ&K) ref.

(d) Qanun-e-Shahadat (10 of 1984)---

----Art. 100---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement---Production of document---Thirty years period---Presumption---Scope---Claim of the plaintiff, that the sellers / vendors (two in number) sold the suit property to him vide the agreement and promised to transfer the suit-property after redemption of mortgage charge from the Bank, was concurrently rejected---Validity---To presume the signatures and every other part of such document which purports to be in the handwriting of any person and that it is executed by the person by whom it purports to be executed, Court should be very careful about applying any presumption under Art. 100 of the Qanun-e-Shahadat, 1984, in favour of old documents when the same are produced during the trial of a suit, in which the proprietary rights are set up and the Court in its discretion can refuse to apply presumption where evidence in proof of the document is produced and then it is disbelieved---The word 'may' used in Art. 100 of Qanun-e-Shahadat, 1984, signifies that presumption envisaged therein does not follow as a matter of course---Two Courts below have disbelieved the evidence of the petitioner and the High Court also found that the evidence of the petitioner was not credible---Revision, filed by the plaintiff, was dismissed in limine, in circumstances.

Ch. Muhammad Shafi v. Shamim Khanum 2007 SCMR 838; Yousuf v. Muhammad Akbar and others 2024 CLC 1085 and Mst. Hajyani Bar Bibi through L.R. v. Mrs. Rehana Afzal Ali Khan and others PLD 2014 SC 794 ref.

2025 C L C 1526

[Lahore]

Before Shujaat Ali Khan, J

Mst. REHMAT BIBI through (L.Rs.) ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, GUJRANWALA and 2 others ---Respondents

W.P. No. 31166 of 2017, decided on 2nd April, 2024.

Punjab Pre-emption Act (IX of 1991)---

----S. 13---Qanun-e-Shahadat (10 of 1984), Art. 72---Civil Procedure Code (V of 1908), S. 12(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Contents of document---Proof---Petitioners under S. 12(2), C.P.C. assailed judgments and decrees passed by two Courts below decreeing suit filed by respondent on the basis of compromise effected by defendant lady who was predecessor-in-interest of petitioners---Petitioners claimed that suit was filed five days after the death of their predecessor-in-interest and relied upon death certificate---Validity---Contents of a document, in particular a public document, can be proved by producing its custodian in due course---On one hand stance of respondent / plaintiff was that predecessor-in-interest of petitioners died on 19-12-2003 but on the other he produced copy of Register relating to deaths prepared by the Secretary Union Council, on the basis of information furnished by relative of the deceased(s) or Chowkidar of the village, wherein date of death of deceased defendant was mentioned as 20-05-2000---Both the Courts below were bound to take pain to unearth real date of death of deceased defendant as it was the sole decisive factor for decision of lis between the parties---In ordinary circumstances, documentary evidence outweighs oral evidence but in exceptional cases documentary evidence cannot be relied upon without due corroboration---High Court set aside orders passed by two Courts below and remanded the matter to Trial Court to determine whether predecessor-in-interest of petitioners was alive at the time of making statement before Trial Court owning compromise between the parties, as entries in documents produced by parties contradicted each other---High Court directed Trial Court to decide application filed by petitioners, under S. 12(2), C.P.C. afresh---Constitutional petition was allowed accordingly.

Muhammad Younas and another v. Ghazanfar Abbas and 12 others 2017 YLR 2229; Commissioner of Income-Tax, Companies Zone-II, Karachi v. Messrs Sindh Engineering (Pvt.) Limited, Karachi 2002 SCMR 527; Mst. Saadia v. Mst. Gul Bibi 2016 SCMR 662; Tassaduq Hussain Shah and others v. Allah Ditta Shah and others 2023 SCMR 1635; Mst. Zarsheda v. Nobat Khan PLD 2022 SC 21; Ch. Muneer Hussain v. Mst. Wazeeran Mai alias Mst. Wazir Mai PLD 2005 SC 658 and Mst. Safia Begum v. Muhammad Ajmal 2007 YLR 3030 rel.

Irfan Ghaus Ghuman for Petitioners.

Takeel Ahmed Gujjar for Respondent No. 3.

2025 C L C 1549

[Lahore]

Before Jawad Hassan, J

MUHAMMAD SAEED ---Petitioner

Versus

KHAN AURANG ZAIB and others ---Respondents

W. P. No. 2061 of 2024, decided on 16th June, 2025.

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

----O.XXI, R. 89---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Sale of surety's property in execution of decree---Vested/ valuable rights in favour of auction purchaser, accrual of---Scope---Once the auction sale is confirmed, the auction purchaser cannot be divested of the property, and a Constitutional petition is not maintainable to challenge the concluded sale proceedings---Facts of the case in brevity were that the petitioner, acting as a surety for the execution of a decree passed in favour of respondent No.1 (decree holder) against respondent No.2 (judgment debtor), sought the release of his property under Order XXI, Rule 89, C.P.C., however, the property had already been sold in auction and the sale was confirmed---The Trial Court dismissed petitioner's application for release of property and such dismissal was upheld by the district court/ appellate court---Petitioner, through a Constitutional petition under Art. 199 of the Constitution challenged the vires of the said orders---Core point for consideration by the High Court was as to "Whether the petitioner, acting as a surety, could seek release of property under Order XXI Rule 89, C.P.C., after the auction sale of the property was confirmed?"---Held: Once a sale was confirmed in favour of the successful bidder and subsequently sale certificate was also issued then at a belated stage the auction purchaser could not be deprived of the auctioned property because he gained valuable rights upon confirmation of the sale, including the right to possess the property, transfer of ownership, and protection against subsequent claims that were not based on fraud or irregularity---High Court emphasized that such rights were generally protected by law, including the C.P.C., and were subject to the terms and conditions of the auction---Constitutional petition was dismissed, in circumstances.

Hudaybia Textile Mills Ltd. v. Allied Bank of Pakistan Ltd. PLD 1987 SC 512 rel.

Faysal Bank Limited v. Haris Steel Industry (Pvt.) Limited 2023 CLD 44 ref.

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

----O.XXI, Rr .89, 90 & 91---Execution of decree---Auction sale---Vested third party rights in favour of auction purchaser, accrual of---Scope---The vested/third party rights accrue in favour of a bidder when the auction-sale become complete i.e. when the court confirms the auction sale---However, such vested rights are defeatable and would not take away the right of the mortgagor/judgment debtor to redeem his property if he brings his case within the parameters of Order XII, Rule 89, 91 or 91 of C.P.C.---However, position of the auction purchaser is different when the court confirms the auction sale in favour of the auction purchaser---Once sale has been effected, a third party interest intervenes which cannot be disregarded.

Hudaybia Textile Mills Ltd. v. Allied Bank of Pakistan Ltd. PLD 1987 SC 512 rel.

Faysal Bank Limited v. Haris Steel Industry (Pvt.) Limited 2023 CLD 44 ref.

Shabbir Ahmad Mirza for Petitioner.

2025 C L C 1562

[Lahore (Multan Bench)]

Before Anwaar Hussain, J

MUHAMMAD IFTIKHAR ---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary Local Government and Community Development Department Punjab, Lahore and another ---Respondents

Writ Petition No. 9661 of 2009, heard on 27th February, 2024.

Punjab Local Government Ordinance (XIII of 2001) [Since repealed]---

----S. 142---Punjab Local Government (Auctioning of Collection Rights) Rules, R. 13(3)---Rule 13(3) of Punjab Local Government (Auctioning of Collection Rights) Rules, 2003, vires of---Offer of contract, cancellation of---Required amount, non-depositing of---Terms of auction / contract---Applicability---Petitioners were aggrieved of cancellation of their contracts by authorities for non-depositing of required amount---Validity---Earnest / security money under Punjab Local Government (Auctioning of Collection Rights) Rules, 2003 is received as measure to ensure that serious contenders participate in auction and if successful bidder fails to enter into a contract and does not deposit balance amount in accordance with terms and conditions, the earnest / security money stands forfeited---Earnest / security amount deposited prior to holding of auction was justifiable in terms of R. 13(3) of Punjab Local Government (Auctioning of Collection Rights) Rules, 2003---Any contractual violation subsequent to execution of contract was to be resolved as per mechanism provided under the contract (including arbitration clause) and not by terms of auction---High Court declared that provision of R. 13(3) of Punjab Local Government (Auctioning of Collection Rights) Rules, 2003, was not ultra vires to the Punjab Local Government Ordinance, 2001---Constitutional petition was dismissed, in circumstances.

Province of Sindh v. Public at Large PLD 1988 SC 138; Meenakshinada Deikshtar v. Murugesa Nadar and another AIR 1970 Madras 391 (V 57C 116) and Space Telecom (Private) Limited, Lahore v. Pakistan Telecommunication Authority, Islamabad through Chairman 2019 SCMR 101 ref.

Abdul Rasheed Sheikh for Petitioner.

Imran Khan, Assistant Advocate General , Sahibzada Muhammad Saleem, Assistant Advocate General, Haji Muhammad Aslam Malik, Advocate/Legal Advisor, M.C., Dera Ghazi Khan and Muhammad Asif Malik for Respondents.

Riaz Ahmad, SLO, Local Government South Punjab, Bahawalpur and Muhammad Falak Sher, Senior Clerk, M.C. Dera Ghazi Khan for Respondents.

2025 C L C 1580

[Lahore (Multan Bench)]

Before Raheel Kamran, J

MUHAMMAD IRSALAN FARAZ ---Petitioner

Versus

HABIB UL REHMAN ---Respondent

Civil Revision No. 609 of 2025, decided on 19th May, 2025.

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

----O.XXXVII, Rr. 1, 2(2) & 3(2)---Suit for recovery---Conditional leave to defend, grant of---Failure to satisfy the condition---Effect---Order granting conditional leave to defend, recalling of---Scope---The respondent filed a suit for recovery under O. XXXVII, Rr. 1 and 2 of the C.P.C. against the petitioner---The petitioner/defendant filed an application for leave to defend the suit, which was accepted subject to furnishing surety bonds---Respondent/plaintiff moved an application alleging that the surety bond submitted by the petitioner/defendant was fake and forged---The Trial Court, after conducting an inquiry, found the surety bond to be fake---Consequently, the court recalled its earlier order granting conditional leave and dismissed the petitioner's/defendant's application to defend the suit---Subsequently, petitioner filed the present civil revision arguing that the impugned order was illegal and that he should have been allowed to furnish fresh surety---Primary legal question in the present civil revision was as to "whether a court could retract an order granting leave to defend in a summary suit under O. XXXVII of the C.P.C., when the condition precedent attached to that leave had not been genuinely fulfilled?"---Held: When leave to appear and defend the suit was granted subject to a specific condition, the very efficacy of that leave depended on fulfillment of that condition---If the condition was not met in its true letter and spirit, the order granting conditional leave became inoperative---In the present case, the trial court, after conducting an inquiry that included summoning and recording of the statement of the relevant patwari, arrived at the finding that the petitioner/defendant submitted forged surety bonds, which clearly constituted non-compliance of the conditional order granting leave to defend---The submission of a fake surety bond was not merely a technicality rather it constituted an act of fraud committed with court---Therefore, no illegality or material irregularity in the findings of the court below was pointed out warranting interference by the High Court in exercise of its revisional jurisdiction under S. 115 of the C.P.C.---Civil revision being devoid of any merit was dismissed in limine.

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

----O.XXXVII, Rr. 1, 2 & 3(2)---Suit for recovery---Conditional leave to defend, grant of---Scope---Failing to satisfy the condition---Effect---Conditional grant of leave is contingent upon the satisfactory fulfillment of the stipulated terms and failure to meet those terms effectively nullifies the leave granted---Plain reading of R. 3(2) of O. XXXVII of C.P.C. clearly establishes the court's authority to grant conditional leave---The power of the Trial Court to grant leave to defend subject to conditions is, thus, a matter of judicial discretion---Implicit in such authority to pass conditional order is the understanding that the fulfillment of the condition is crucial for the leave to remain effective.

Haji Ali Khan and Company, Abbottable and 8 others v. Messrs Allied Bank of Pakistan Limited, Abbottable PLD 1995 SC 362; Abdullah v. Shaukat 2001 SCMR 60 and Muhammad Ramzan and others v. Ghulam Qadir 2011 SCMR 659 rel.

2025 C L C 1599

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

ADEEL KHALEEL ---Petitioner

Versus

SHAHID HASSAN and 10 others ---Respondents

Writ Petition No. 3048 of 2018, heard on 16th April, 2025.

(a) Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), S. 115(1), 'second proviso'---Suit for specific performance of agreement to sell---Conditional decree---Order for depositing remaining sale consideration failing which suit would stand dismissed---Dispute regarding remaining sale consideration---Belated filing of application for rectification of remaining sale consideration amount---Revisional jurisdiction of the High Court---Limitation---Brief facts of the matter were that the petitioner (vendee) filed a suit for specific performance which was decreed conditionally, directing the petitioner to deposit the remaining sale consideration, failing which the suit would stand dismissed---The petitioner, instead of depositing the specified amount, filed an application disputing the determined amount by the trial court, which application was dismissed---A revision petition filed against that dismissal was dismissed as time-barred---The petitioner challenged the dismissal through a Constitutional petition, arguing that no specific limitation period existed under S. 115 C.P.C. for filing revision---Pivotal questions for determination before the High Court were; (i) "whether the petitioner's failure to deposit the remaining sale consideration within the stipulated timeframe rendered the decree ineffective, and whether the trial court had any jurisdiction to entertain his subsequent application for rectification of amount after the lapse of time"; & (ii)"whether the revision petition filed after more than one year was maintainable despite the statutory bar under the second proviso to S. 115(1) C.P.C."---Held: Had there been any dispute with regard to the remaining sale consideration, the petitioner must have been vigilant enough to move for the rectification of the judgment swiftly but he remained waiting till the time to deposit expired---When a decree is conditional and it stipulated the condition as well as the consequence of non-fulfillment of such condition the court would become functus officio on the target date---As regards the contention of the petitioner that his application was well within time, if its limitation was computed from the date decree was drawn, bare perusal of the judgment made it clear that the time for deposit of remaining sale consideration started from the date of passing of the decree and not from the date when the decree sheet was drawn, even otherwise if date of preparation of the decree was considered and the if the application of the petitioner would be treated as well within time, he was then obliged to deposit at least the amount which he allegedly specified, being the remaining consideration as per his estimation to show his bona fide but it was not done either before the trial court or the revisional court---Moreover, it was made obligatory that a revision application shall be made within ninety days of the decision of the subordinate court---Revision was filed after passing of about more than a year, which was adjudged as barred by time and rightly so---Even otherwise the petitioner had remained indolent in prosecuting his cause right from the passing of the decree---The petitioner was thus precluded to ask the court to come to his rescue on the principles of equity---Constitutional petition was dismissed, in circumstances.

Muhammad Wahid and another v. Nasrullah and another 2016 SCMR 179 rel.

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

----Ss. 115(1) 'second proviso' & 115(2)---Revisional jurisdiction of the High Court, invoking of---Limitation---As regards the proposition that revision application even though filed after the period of ninety days can be entertained, if the court is satisfied that sufficient reason has been assigned for the delay and it can condone the same, to this effect the revisional powers were conferred upon the High Court for the first time by virtue of S. 35 of the Act No. XXIII of 1861 and through the Law Reforms Ordinance, 1972---Section 115, C.P.C. as it then was, has been re- numbered as subsection (1), and subsections (2), (3) & (4) were added---Second proviso to subsection (1) was added through the Civil Procedure Code (Amendment) Act, 1992 where-under it was made obligatory that a revision application shall be made within ninety days of the decision of the subordinate court which shall provide a copy of such decision within three days thereof and the High Court shall dispose of such application within six months---Mere limitation would not come in the way of revisional court to exercise its jurisdiction where it appears from the record that the proceedings brought before it are tainted with such patent illegalities or material irregularities defeating the ends of justice but at the same time limitation cannot be considered merely a formality---The prime object of law of limitation is to help the vigilant and not the indolent---A court cannot come to the rescue of a litigant who has gone into deep slumber and becomes forgetful of his right.

Lahore Development Authority v. Mst. Sharifan Bibi and another PLD 2010 SC 705 rel.

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

----Ss. 115(1),'second proviso' & 115(2)---Revisional powers of the District Court---Revision application, limitation of---As regards the question that no limitation is provided in S. 115 of the C.P.C. for a revision application before the District Court, the addition of subsection (2) through the Law Reforms Ordinance, 1972 and the Civil Laws (Reforms) Act, 1994) along with the High Court amendments, the District Court was also vested with the revisional powers as is conferred upon the High Court by virtue of subsection (1) of S. 115, C.P.C. in respect of any case decided by a court subordinate to such District Court in which no appeal lies and the amount or value of the subject matter whereof does not exceed the limits of the appellate jurisdiction of the District Court---For the purpose of limitation, second proviso to subsection (1) of S. 115 of the C.P.C., would undoubtedly come into play.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Concurrent findings by the courts below---Limited scope of interference in judgments/orders passed under revisional jurisdiction by the court below---When a question of fact or even of law is decided by the courts of competent jurisdiction concurrently it should not to be interfered with in extraordinary jurisdiction of the High Court unless some patent illegality is floating on the surface of record---High Court, while invoking its Constitutional jurisdiction always exercises restraint in interfering with the judgment or order passed in exercise of revisional jurisdiction unless some perversity or patent illegality is floating on the surface of record---The Constitutional jurisdiction can only be exercised in such an eventuality if the impugned order or judgment suffers with certain legal infirmities or patent illegalities, resulting into failure of justice.

Chief Executive MEPCO and others v. Muhammad Fazil and others 2019 SCMR 919 and Muhammad Husain Munir and others v. Sikandar and others PLD 1974 SC 139 rel.

Ajam Naz Malik for Petitioner.

Abdul Rauf Qureshi and Usama Bin Salam for Respondents Nos. 1 to 3.

Nemo for Respondents Nos. 4 to 8.

2025 C L C 1624

[Lahore]

Before Shakil Ahmad, J

Messrs FIVE STAR STEEL INDUSTRY (PVT.) LTD. through Authorised representative and 4 others ---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Law and Justice and 5 others ---Respondents

Writ Petition No. 67022 of 2024, decided on 28th October, 2024.

Regulation of Generation Transmission and Distribution of Electric Power Act (XL of 1997)---

----Ss. 11 & 12(G)---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court, nature of---Discretionary---Concealment of material fact---Effect---Petitioners were aggrieved of decision of National Electric Power Regulatory Authority (NEPRA) qua imposition of increased fixed charges in the bill---Plea of the respondent-authority was that petitioners had alternate efficacious remedy by way of filing an appeal against the decision of NEPRA before the Appellate Tribunal NEPRA---Contention of the petitioners was that the Tribunal was non-functional, thus, constitutional petition was maintainable---Validity---Petitioners misstated before the High Court that the Appellate Tribunal was not functional at that moment, as the cases were being entertained and heard by the Tribunal, which information had also been confirmed through Office of High Court---Extraordinary constitutional jurisdiction under the provisions of Art. 199 of the Constitution is discretionary and equitable and while exercising this jurisdiction, the conduct of the party assumes vital significance and importance---He who seeks equity must come to the Court with clean hands---When petitioners had attempted to suppress material facts, they had become disentitled to the grant of equitable and discretionary relief---Petitioners did not come to High Court with clean hands and attempted to mislead the Court by suppressing the fact qua functionality of the Tribunal, therefore, they were not entitled to get discretionary and equitable relief under Art. 199 of the Constitution and the constitutional petition was liable to be dismissed on this score alone---Petitioners being aggrieved of the decision of the authority had the remedy of filing an appeal under S. 12(G) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (Act), before the Tribunal established under S. 11 of the Act within a period of thirty days of the decision particularly in view of the fact that the Tribunal was fully functional---Where an alternate, equally efficacious and statutory remedy is available to an aggrieved person, he ought to avail that remedy instead of invoking extraordinary constitutional jurisdiction of High Court under Art. 199 of the Constitution---Constitutional petition was dismissed, in circumstances.

Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others 2016 SCMR 842 and Mian Azam Waheed and 2 others v. The Collector of Customs through Additional Collector of Customs, Karachi 2023 SCMR 1247 rel.

Barrister Momin Malik for Petitioners.

Rana Nauman Khalid, Assistant Attorney General on Court's call.

2025 C L C 1644

[Lahore]

Before Sultan Tanvir Ahmad, J

AMMAR BASHIR ---Petitioner

Versus

IRFAN SHAFI KHOKHAR (Returned Candidate) and 39 others ---Respondents

Election Petition No. 22232 of 2024, decided on 24th January, 2025.

(a) Elections Act (XXXIII of 2017)---

----Ss. 142, 143,144(4) & 145(1)---Election petition---Maintainability---Non-fulfilment of mandatory procedural requirements while filing the election petition---Verification of election petition being a mandatory requirement---Effect and consequences---A deficient election petition must be rejected at the outset---Detailed particulars with documentary evidence to be provided in order to substantiate incidences of corrupt practices, requirement of---The challenge in the present case was against the election held on 08.02.2024 in constituency PP-167 Lahore-XXIII---The election petitioner alleged that while consolidating the results, Forms-45 issued to polling agents were unlawfully discarded, corrupt practices occurred on polling day, and the results were manipulated with ulterior motives---On the other hand, the returned candidate had raised preliminary objections, contending that the election petition suffered from procedural defects, particularly improper verification and absence of a valid affidavit of service as required under S. 144 of the Elections Act, 2017---Held: It has been settled law that details of the person identifying the election petition must be mentioned in accordance with the provisions of law and the oath commissioner was bound to specify, at the foot of the affidavit, name of the person by whom the identification of the deponent was made and in the regard certificate had to be appended---Verification of an election petition was mandatory and a petition which lacked proper verification should be summarily dismissed by the tribunal, even if the respondent had not asked or prayed for its dismissal---Moreover, when an election petition was not verified in accordance with law, this could not be treated as curable defect particularly after lapse of period of limitation prescribed for filing of election petition---In the present case, the declaration given by the oath commissioner did not reveal if the election petitioner was personally known to him---The identification was not with reference to his Computerized National Identity Card (CNIC)---Moreover, full particulars of any corrupt or illegal practices were required to be given by the petitioner, including the details as to date and place of commission of such acts of illegal practices together with documentary evidence in support of such allegations---Election petition was deficient in many respects, therefore, the same was rejected under S. 145(1) of the Act.

(b) Elections Act (XXXIII of 2017)---

----Ss. 142, 143, 144(4) & 145(1)---Election petition---Maintainability---Non-fulfilment of mandatory requirements while filing the election petition---Consequences and effect---Tribunal bound to reject petition at the outset---The requirements given in Ss. 142 to 144 of the Elections Act, 2017 for presentation of election petition, impleading parties to such petition and contents of the election petition to challenge election in any constituency are followed by S. 145(1) of the Act, 2017 which requires rejection of election petition if aforesaid provisions were not complied with, moreover, the Tribunal cannot wait till the culmination of the proceedings through regular trial and it is mandate of law to reject the plaint.

Col. (R) Muhammad Shabir Awan v. Raja Saghir Ahmed and 4 others PLD 2023 Lah. 458 ref.

Waqar Mushtaaq Toor for Petitioner.

Waqas Ahmad Mir and Hammad Hussain for Respondent No. 1/Returned Candidate).

Ex-parte for Respondents Nos. 2 to 30 and 32 to 38.

2025 C L C 1660

[Lahore]

Before Abid Hussain Chattha, J

MUHAMMAD YASIN ---Petitioner

Versus

Mst. SEEMAB JABEEN and 2 others ---Respondents

Civil Revision No. 207770 of 2018, heard on 2nd June, 2025.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance---Payment of remaining sale amount---Conduct of vendee /plaintiff---Delaying tactics---Effect---Trial Court decreed the suit of the plaintiff directing him to pay the remaining sale consideration within thirty days, which judgment was maintained by the Appellate Court---Contention of the petitioner/plaintiff was that he paid amount of Rs. 500,000/- to female respondent / defendant subsequently, which (payment) was required to be adjudicated on merits by production of evidence and that the Appellate Court made erroneous observations that possession of the suit-property was with him, and that appeal filed by him should not have been dismissed due to non-payment of court-fee---Validity---Notably, non-payment of court-fee was not the basis for dismissal of appeal of the petitioner/plaintiff; it was merely an observation of the Appellate Court that the petitioner was bound to pay the same who had not paid despite repeated opportunities which did not otherwise affect the outcome of the appeal on merits---Further, observation of the Appellate Court that possession of the suit property was with the petitioner was merely an additional observation which also did not affect the outcome of the suit inasmuch as it was explicitly stated in the plaint that an amount (of Rs. 2,895,625/-)was remaining sale consideration and the said claim was conceded by the female respondents, whereafter, the Trial Court rightly decreed the suit of the petitioner/plaintiff directing him to pay the said remaining sale consideration within thirty days but he did not pay the same on the pretext that he had paid Rs. 500,000/- to the respondents on account of marriage of daughter which had nothing to do with the transaction alleged by him in the plaint---Said plea/pretext was merely an afterthought and it had been established on record that the petitioner was never ready and willing to pay the remaining sale consideration within the stipulated period mentioned in the agreement and even failed to do so pursuant to the decree / judgment and the earnest money paid by the petitioner to the respondents surely stood forfeited under the forfeiture clause of the agreement executed between the parties---No illegality or infirmity had been noticed in impugned decrees and judgments passed by both the Courts below---Revision, filed by plaintiff, was dismissed, in circumstances.

Raja Muhammad Riaz Satti for Petitioner.

Barrister Syed Ali Numan, Ali Sher, Hassan Safdar Khan and Abu Bakar Attique for Respondents Nos. 1 and 2.

Rizwan ul Hassan for Respondent No. 3.

2025 C L C 1705

[Lahore]

Before Sultan Tanvir Ahmad, J

FAYYAZ AHMED ---Petitioner

Versus

SPECIAL JUDGE (RENT) and 2 others ---Respondents

Writ Petition No. 27842 of 2025, decided on 16th June, 2025.

(a) Cantonments Rent Restriction Act (IX of 1963)---

----S. 17---Civil Procedure Code (V of 1908), O.XXI, Rr.100, 101 & 103---Ejectment proceedings---Execution of eviction order---Objection application by the tenant, adjudication of---Scope---While adjudicating objection application of the tenant the court was obligated to frame issues and record evidence in order to resolve disputes raised by the tenant---Petitioner (landlord) filed an ejectment petition against respondent No.2 (tenant) regarding the shop in question resulting in passing of eviction order---Respondent No.2/tenant claimed to be a tenant of petitioner with respect to shop No.986-A and raised grievance that in execution of eviction order the possession of his rented premises was taken, whereas, eviction order was passed with respect to a different shop bearing No. 986 against another person 'MS'---Tenant's objection application filed under O. XXI, R. 100, C.P.C. was allowed by the Rent Controller directing restoration of possession---Held: It was an imperative aspect of the matter that such order was passed without proper investigation, framing of issues, or recording of evidence---Petitioner/landlord was admittedly the owner of two shops having No. 986 and 986-A---He had filed ejectment petition against another person 'MS'---As per stance of the petitioner/landlord, he rented out property measuring 32x13 sq. ft. to one 'MS', after removing partition wall between two adjacent shops---The number of shop given in eviction petition was No. 986, however, the rent agreement was with respect to shop No. 986-A, which was relied upon---The agreement clearly stipulated that the property subject of rent agreement was measuring 32x13 sq. ft---The number of property mentioned therein was No. 986-A---Somehow, respondent No.2/tenant who instituted the objection application under O. XXI R. 100 of C.P.C., previously approached the Rent Controller with an application claiming that petitioner/landlord had executed a rent agreement in his favour---He claimed that he was tenant in the shop which was subject of eviction-petition and sought to be impleaded in the array of parties---This application, under O. I, R. 10 of C.P.C. was rejected---Then respondent No.2/tenant never raised any challenge to the said order until the conclusion of trial---It was admitted position that 'MS' maintained in ejectment proceedings that he was tenant of shops subject to eviction proceeding until 13.08.2000 and then respondent No.2/tenant obtained the same shops on rent under separate arrangement---Thereafter, 'MS' stopped pursuing the proceeding and he was proceeded ex-parte---Statements of three witnesses were recorded in support of the stance of ejectment petitioner---These statements went un-rebutted as they were never cross-examined---Finally, the ejectment-petition was allowed---The disputes raised by respondent No.2/tenant in his objection filed under O. XXI, R. 100 of C.P.C. clearly involved such questions which should not have been resolved in his favour in a summary manner---The impugned order without due investigation and proper exercise of jurisdiction could cause miscarriage of justice---The case was remanded to the Rent Controller for decision afresh, after framing relevant issues and permitting the parties to lead their evidence---The impugned order and the subsequent orders passed by Rent Controller were set-aside, in circumstances.

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

----O.XXI, Rr.100, 101 & 103---Cantonments Rent Restriction Act (IX of 1963), S. 17---Ejectment proceedings---Execution of eviction order---Adjudication of questions as to title, right, interest or possession by the Executing Court---Powers and jurisdiction of Executing Court---Scope---Rule 103 of O. XXI of C.P.C. was substituted through Law Reforms Ordinance, 1972---Under the substituted provision, any party not being judgment-debtor against whom order is made for restoration of possession in terms of O. XXI, R. 101 was permitted to institute a suit to establish rights to claim possession of the property---This position stood changed after the above substitution---Now all the questions arising as to title, right, interest in or possession of immovable property are required to be adjudicated by the Executing Court---The orders passed, in this regard, become conclusive and no separate suit is permitted---The legislature has used the words "adjudicate upon" and "determined by the Court" besides restricting separate suit---Any person other than judgment-debtor dispossessed from immovable property by decree holder, can make an application under O. XXI R. 100 of C.P.C., which then requires investigation in terms of O. XXI R. 100(2) of C.P.C.---Order XXI R. 100 of C.P.C. is to be read with Rules 101 and 103 of Order XXI of C.P.C.---Order XXI R. 101 of C.P.C. provides that the Court can make the order when satisfied that the applicant was in possession on his own account or on account of some person other than judgment-debtor---The scheme of law is such that it confers full jurisdiction upon the Executing Court to decide the issues involved therein.

Qasim Ali and 5 others v. Fazal and another 1986 MLD 2997; Ibrahim v. Mst. Saeeda Bano 1984 MLD 1124 and Hindu Panchayat of Sukkur v. Matloob Ahmed and others 1991 MLD 480 ref.

Barrister Ch. Saeed Hussain Nagra and Mian Usman Ramzan for Petitioner.

Shakeel Ahmad Malik for Respondent No. 2.

2025 C L C 1737

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

MUHAMMAD RAMZAN ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SHUJABAD and others ---Respondents

Writ Petition No. 15231 of 2024, decided on 14th November, 2024.

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

----O.IX, R.13---Limitation Act (IX of 1908), S. 5---Ex parte decree, setting aside of---Limitation---Non-service due to incorrect/incomplete address---Decision of miscellaneous and ancillary applications before passing final judgment---Scope---Not deciding application for condonation of delay before passing final judgment was not fatal---Courts below conscious of its pendency---Delay deemed impliedly condoned---Implied condonation of delay permissible in view of proprietary rights and absence of prejudice to the opposite party---Substantial justice overrides technical objections---The pivotal legal issue that invited the consideration of the High Court was as to "Whether the concurrent findings of the courts below, whereby the ex parte proceedings and decree were set aside and the suit was revived, could be sustained in law despite the admitted pendency of an application for condonation of delay under S. 5 of the Limitation Act, 1908, which remained undecided, and whether such omission constituted a material irregularity vitiating the legality and propriety of the impugned orders"---The factual backdrop was that the petitioner (now deceased) filed a suit for cancellation of mutation (pertaining to 4-kanals land) and recovery of gold ornaments against his wife, (respondent No. 3), alleging she deserted him after receiving these benefits---The suit was decreed ex parte on 11.07.2015 after proceedings against her were initiated ex parte on 04.10.2014---Respondent No. 3 (wife) filed an application under Order IX Rule 13, C.P.C. to set aside the ex parte proceedings and decree, asserting she only came to know of the decree on 22.02.2022 and filed the application on 29.06.2022---Her plea was that an incorrect/incomplete address was provided, which led to non-service---Application for setting aside ex-parte judgment and decree was accepted and the suit was revived---Revision petition filed thereagainst by the petitioner was dismissed---The petitioner, since deceased, filed constitutional petition through legal heirs and made challenge to the concurrent findings of both the courts below on the grounds that the respondent's application was barred by time; her application under S. 5 of the Limitation Act, 1908, for condonation of delay was not expressly decided, therefore, setting aside the ex parte decree without adjudication of the limitation issue was legally flawed---Held: Notwithstanding the disposal of appeal on merits without dealing with the question of limitation in express words, it would be deemed that there was implied condonation of delay---No one should be condemned unheard and parties should not be knocked out on the basis of technicalities---By revival of the suit the petitioners would still have the right to pursue the remedy available to them under the law, hence, no serious prejudice would have been caused to them by setting aside of the ex-parte judgment and decree---Balance to avoid prejudice to the rights of the parties tilted in favour of maintaining the decision of setting aside the ex parte proceedings and decree and revival of suit for its decision on its own merits---Even if application for condonation of delay was not decided, as proprietary rights of the parties were involved, hence it was appropriate to condone the delay in filing application for setting-aside ex parte decree and consequently order passed by both the courts below were interpreted in the manner that as while setting aside ex parte decree the courts below were conscious of pendency of the application for condonation of delay, hence the delay in filing the application for setting aside ex parte proceedings and decree although not dealt with in express terms had been impliedly condoned---Ex-parte proceedings and decree were set-aside and the suit filed by the petitioners was revived---Constitutional petition was dismissed, in circumstances.

Ashiq Hussain Shah v. Province of Punjab through Collector District, Attock and 6 others 2003 SCMR 1840 and Tehsil Nazim TMA, Okara v. Abbas Ali and 2 others 2010 SCMR 1437 rel.

Muhammad Sadiq v. Administrator, Residual Properties, Multan Division, Multan/Additional Commissioner (Revenue), Multan Division, Multan and another 1985 CLC 369 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Not every procedural irregularity warrants interference by the High Court---No writ where substantial justice has prevailed---Discretionary nature of Constitutional jurisdiction---Concurrent findings of courts below, principle of---It is pertinent to mention that the High Court in its constitutional jurisdiction is not required to interfere in each and every case, where the court or forum below has proceeded with some irregularity while deciding the matter---An order in the nature of a writ of certiorari or mandamus is a discretionary order---Its object is to foster justice and right a wrong, therefore, before a person can be permitted to invoke this discretionary power of a court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties---Although it is general practice of procedural law that where an application going to the root of the matter remains undecided usually the courts remand the matter for decision of the same afresh, while also keeping in view the contents of the said application, but the same is not an absolute rule of law and the courts may refuse to set aside the decision inter alia for the reasons that prejudice has not been caused to the rights of the parties or by the said decision justice has been done and to set aside the said decision would result in prejudice to the right(s) of any of the parties---Where substantial justice has been done, it is not necessary for the High Court to interfere in Constitutional jurisdiction on the basis of technicalities alone for the reason that Constitutional jurisdiction is discretionary in character and where courts below have given concurrent conclusions, Superior Courts generally do not interfere in the conclusions arrived at by Courts and Tribunals below.

Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 rel.

2025 C L C 1761

[Lahore]

Before Hassan Nawaz Makhdoom, J

Mst. NAYYAB ABBAS ---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, LAHORE and others ---Respondents

Writ Petition No. 54172 of 2024, heard on 15th May, 2025.

(a) Guardians and Wards Act (VIII of 1890)---

----Ss. 17 & 25---Custody of the minor---Preferential right of real parents over an adoptive parent---Minor adopted by her paternal uncle---Uncle and his wife subsequently separating---Custody of minor retained by wife of uncle after separation---Plea of love and affection raised by non-parent for keeping custody of minor---Welfare of the minor in custody matters, significance of---Mother's right of 'hizanat'---Brief facts of the case were that the custody of the minor, was initially handed over to her paternal uncle/respondent No. 4 (adoptive parent), who was married at the time to the petitioner---This transfer of custody was formalized through an adoption deed, executed by the minor's biological father/ respondent No. 5, whereby it was stipulated that the custody of the minor would remain with the uncle and none else---The petitioner, as wife of respondent No. 4 (adoptive parent) at that time, became the primary caregiver of the minor---The minor resided with the petitioner and respondent No. 4 (adoptive parent) for a brief period until their marriage dissolved---Despite the divorce, the petitioner continued to retain the custody of the minor---The biological mother of the minor then sought custody which was allowed by the Guardian Judge and the decision was upheld on appeal---The question for determination before the High Court was as to "whether the petitioner (wife of adoptive parent) or the real parents were entitled to custody of the minor in terms of her welfare"---Held: Though adoption is permitted under principle of Islamic laws but compelling circumstances, under which adoption was imperative, were required to be established---As per admission by the petitioner for not having any blood relationship with the minor but still claiming her custody, in presence of her real parents, has a greater threshold and standards to be qualified by the petitioner for grant of her claim---The parentage of the minor was an admitted fact---A careful perusal of the petition under S. 25 of the Guardians and Wards Act, 1890 (the "Act 1890") filed by respondent No.3 reveals that the custody of the minor was handed over to respondent No.4/uncle by respondent No.5/real father, without consent of respondent No.3/real mother---The adoption deed reflected that respondent No.5/real father handed over custody of the minor to respondent No.4/uncle with a clear stipulation that custody of the minor would remain with respondent No.4/uncle and none else---Perusal of the adoption deed and petition under S. 25 of the Act, 1890 also revealed that respondent No.3/real mother claimed and sought custody of the minor in a year's time---Petitioner, who had no blood relationship with the minor and had even been divorced by respondent No.4/adoptive parent/paternal uncle, was a stranger to the family of the minor---Minor being of a tender and gullible age of seven years was not old enough to formulate her opinion or even to understand and realize the bonding of real blood relationship, therefore, her intelligent preference could not be obtained---However, the minor joining her family, which included her real parents and real sisters, would be an environment of true love, affection and care, and also in the best interest and welfare of the minor---The assertion that the minor was deeply attached with the petitioner was without any substance since a child naturally becomes associated and attached with any person, who raises him/her from the stage of infancy---This case was not of adoption simpliciter as the adoption deed was only in favour of respondent No.4/uncle and none else---The petitioner being not related to the minor at all and in presence of real parents of the minor, the custody of the minor could not be handed over to the petitioner as welfare of the minor best lay with her real/biological parents---Admittedly, respondents Nos. 3 and 5 were real parents of the minor and as per Ss. 17 and 25 of the Act 1890, welfare of the ward/minor lay with the real parents---Petitioner had no biological link to the minor and was only connected through a now-dissolved marriage with the minor's uncle, therefore, her claim was not only weak in statutory terms but also found no backing under the Shariah---No case for interreference was made out, consequently, the Constitutional petition was dismissed, in circumstances.

Shabana Naz v. Muhammad Saleem 2014 SCMR 343; Mst. Beena v. Raja Muhamamd and others PLD 2020 SC 508; Miss Nancy Ruth Baney v. District Judge, Islamabad and another PLD 2011 Islamabad 6; Jamshed v. Saleemuddin and 4 others PLD 2014 Sindh 120; Mrs. Shaukat Khalid v. Additional District Judge, Rawalpindi and 2 others 1991 SCMR 19 and Rahimullah Choudhury v. Mrs. Sayeda Helali Begum and others 1974 SCMR 305 rel.

2025 LHC 2015; Mst. Farah Mehnaz and others v. Safeer Hussain Jaffar and others 2013 CLC 235 and Shahida Adnan v. Additional District Judge and others 2021 YLR 1915 ref.

(b) Guardians and Wards Act (VIII of 1890)---

----Ss. 17 & 25---Custody of the minor---Welfare of the minor in custody matters---Custody of minor with adoptive parent---Scope---Paragraphs 352 and 354 of the Muhammadan Law confer the custody of a child to his/her natural parent on the touchstone of welfare, particularly, the mother, who is bestowed with inbuilt and inherent love and affection for her child more than anyone else in the world---There is no reason to deprive the minor from her/his entitlement to be brought up by her/his real parents along with her/his siblings---Such an act is precisely according to the principles enunciated by Islam, which does not treat custodial parents as the same or equal in contrast to biological parents.

2025 LHC 151 ref.

(c) Guardians and Wards Act (VIII of 1890)---

----Ss. 17 & 25---Custody of the minor---Preferential right of real parents over an adoptive parent---Scope---Real parents have a preferential right regarding custody of their child unless exception exists warranting to hold otherwise in respect of welfare of the minor---Minor living with his/her real parents and siblings would be an environment of true love, affection and care, and also in the best interest and welfare of the minor.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Article 199 of the Constitution cannot be invoked as a substitute for an appeal, nor can concurrent findings of fact be interfered with unless it is established that the same are tainted with manifest illegality, perversity, or jurisdictional defect.

Shahzad Ahmad Kalyar for Petitioner.

Rai Zafar Hussain Bhatti for Respondents Nos. 3 to 5.

2025 C L C 1784

[Lahore]

Before Rasaal Hasan Syed, J

MUHAMMAD UMAR FAROOQ ---Petitioner

Versus

IRSHAAD BIBI ---Respondent

C.R. No. 13867 of 2024, decided on 2nd September, 2024.

(a) Illiterate lady---

----Old/illiterate/octogenarian/widow lady---Property transaction---Fraud---Absence of independent advice---Mutation, assailing of---Burden of proof on the beneficiary of such transaction---Nearness of the relationship of the petitioner with the elderly widow lady/maternal grandmother as her grandson, the factum of him residing in the same house with her to the exclusion of anybody else coupled with absence of independent advice being established on record placed heavy responsibility upon the shoulders of the petitioner to establish property transaction by independent, unimpeachable, creditworthy and coherent evidence.

(b) Specific Relief Act (I of 1877)---

----Ss. 42 & 39---Suit for declaration and cancellation of mutation---Property transaction without the knowledge of octogenarian / old / illiterate / widow / dependent lady---Failure of the petitioner to prove oral sale and capacity to pay consideration---Effect---Petitioner was 20 years of age and was not employed anywhere having any source of income for payment of consideration, thus, he failed to prove payment of consideration---Cloud of undue influence and colourability of the transaction could also not be effectively rebutted by establishing any plausible factual context of transaction such as proof of any negotiations with regard to sale, how the price was agreed and how the payment was to be made or was made to the lady and in whose presence---Civil revision was dismissed, in circumstances.

Ghulam Farid and another v. Sher Rehman through LRs. 2016 SCMR 862 and Pervaiz Akhtar v. Mst. Farida Bibi and others PLD 2023 SC 628 rel.

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

----O. I, R. 10---Punjab Land Revenue Act (XVII of 1967), Ss. 41(3) & 42(3)---Specific Relief Act (I of 1877), Ss. 42 & 39---Suit for declaration and cancellation of mutation---Allegation of fraud in collusion with revenue officers/officials---Plea of non-impleadment of revenue staff as necessary party---Validity---Sale transaction was allegedly made by the pardanashin lady, who was not only illiterate and dependent upon the petitioner emotionally and practically as her maternal grandson living with her but was also an octogenarian, which made it pivotal for the transaction to be independently established by the petitioner in which he failed after shifting of onus as its beneficiary---Impleading of revenue officials in every case is not a rule of the thumb and this depends upon the peculiar facts and circumstances of each case---Civil Revision was dismissed, in circumstances.

Sikandar Hayat and another v. Sughran Bibi and 6 others 2020 SCMR 214; Sakhi Jan and others v. Shah Nawaz and another 2020 SCMR 832 and Ghulam Muhammad v. Zohran Bibi and others 2021 SCMR 19 rel.

2025 C L C 110

[Peshawar]

Before Ijaz Anwar and Muhammad Ijaz Khan, JJ

Dr. AURANGZEB KHAN and others--Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar and others---Respondents

Writ Petition No.3800-P of 2024, decided on 22nd August, 2024.

Elections Act (XXXIII of 2017)---

----Ss.230 & 224(1A)---Khyber Pakhtunkhwa Universities Act (X of 2012), S.12---Functions of Caretaker Government to run day to day affairs---Scope---Appointment of Vice Chancellors (V.Cs.) in public sector universities---Some members of the Academic Search Committee (ASC) resigned owing to repeated cancellation of dates of interview of selected candidates---Interim Government substituted the members of ASC, who completed the process of interview and recommended the candidates---Elected Provincial Government re-advertised the posts on the ground that the appointment process was violative of S.230 of the Elections Act, 2017, (Act, 2017), because members of ASC were substituted by the Interim Government---Validity---Section 230 of Act, 2017 prohibits the Caretaker Government from taking major policy decisions, however, the Caretaker Government is not restrained from performing functions to attend to day-to-day affairs which are necessary to run the affairs of the Government---Decision to initiate the process of appointment of V.Cs. was duly taken by the elected Government and it was during that process that some of the Members of the ASC had resigned---It was the duty of the Caretaker Government to appoint ASC, substituting the Members who had resigned---Academic Search Committee had nothing to do with Government as it was apolitical and had only performed its assigned duty---Objection of the Chief Minister to the effect that the Chairman and two Members of the ASC had resigned during the Caretaker Government and no NOC was found on file regarding permission of the Election Commission of Pakistan for constituting new ASC was not according to law---Process for appointment was initiated by the elected Government and thus, it was the policy decision duly taken by the Government---Merely because, some of the Members of the ASC had resigned and their names were substituted by the Interim Government would not amount to policy decision taken by the interim setup within the meaning of S.230 of Act, 2017 as the Caretaker Government was duly empowered to pass any order while running the day-to-day affairs of the Government---Constitutional petition was allowed, in circumstance, and the process of re-advertising the positions of V.Cs. was struck down.

Munawar Hassan v. Chief Secretary, Government of Balochistan and others 2017 PLC (C.S.) 81; Abdul Aziz and another v. Government of Khyber Pakhtunkhwa through Chief Secretary and others 2015 PLC (C.S.) 958; Miss Farzana Oadir v. Province of Sindh through Secretary, Ministry of Health, Government of Sindh Secretariat, Karachi and another 2000 PLC (C.S.) 225; Mehboob Ali Rind and others v. Secretary Education Balochistan and others 2023 PLC (C.S) 1526; Syed Irfan Ahmed and another v. Government of Pakistan through Secretary, Finance, Ministry of Finance, Islamabad and others 2009 PLC (C.S.) 4; Amjad Ali Khan v. Ministry of Energy (Power Division), Islamabad through Secretary and others 2019 PLC (C.S.) 300; Managing Director, Public Procurement Regulatory Authority (PPRA) and another 2019 PLC (C.S.) 1348, A.R. Khan v. P.N. Boga through Legal Heir PLD 1987 SC 107; Nadir Khan v. Qadir Hussain and others 2024 SCMR 770; Muhammad Awais and others v. Government of Pakistan through Federal Secretary Health, Islamabad and others 2024 MLD 422 and Government of Balochistan through Secretary Services and General Administration Department and others v. Abdul Rauf and others PLD 2021 SC 313 distinguished.

Khawaja Muhammad Asif v. Federation of Pakistan and others 2013 SCMR 1205 rel.

Amir Javed, Muhammad Tariq Afridi and Mubashir Manzoor for Petitioners.

Shah Faisal Utmankhel, Advocate General Khyber Pakhtunkhwa, Adnan Ali, A.A.G. and Sana Ullah, Additional Attorney General for Pakistan for Respondents.

2025 C L C 145

[Peshawar]

Before Shakeel Ahmad, J

Mst. NEELOFAR and others---Petitioners

Versus

MUHAMMAD KHAN and another---Respondents

Writ Petition No.931-P of 2024, (with Interim Relief), decided on 18th September, 2024.

(a) Guardians and Wards Act (VIII of 1890)---

----Ss.7 & 17---Appointment of guardian---Custody of minor---Duty of court---Welfare of minor---Primary consideration----Custody of minor was obtained by mother after the death of her husband from her in-laws after hectic efforts by way of approaching competent court of law and with the help of police---Application of mother for appointment of guardian of the minor accepted by the Guardian Court was remanded to Guardian Court upon preferring appeal by the father of her deceased husband for decision afresh after impleading the father of her husband---Validity---Application for appointment of guardian is regulated by S.7 of the Guardians and Wards Act, 1890 (Act)---Mother and father both are natural guardians---Section 17, clauses (1), (2) and (3) of the Act imposes a duty upon the Court while appointing a guardian to make the appointment consistent with the law to which the minor is subject---Central idea is the welfare of the minor---Welfare means his wordly, moral and spiritual well-being---In the presence of mother, the welfare of minors does not lie elsewhere---Minors feel psychologically more secure in the company of the mother rather than anyone else---Amount of love and care which a child receives from the mother cannot be expected from any other relative, including the grandfather or uncle---Welfare of the minor would be provided by the mother with more devotion and there is no other better institution than a lap of a living mother and there cannot be a better tutor than a mother---Right from birth, the minors were living with their mother and such period was spread over years---Uprooting the minors from their given and familiar surroundings, although permissible, yet could not be done as there nothing on record to suggest that the minors would be given beneficent treatment by their grandfather---Petitioner being mother of the minors might spare lot of time for them---Mother who always had a better understanding with her children, and with whom the children enjoyed intimacy, had legal right to be the guardian of the minors---Mother was neither leading an immoral life nor was a lady of ill-repute, rather she was an educated lady and had been leading family life after death of her husband and there was no allegation whatsoever against her moral character---Judgment of the appellate court remanding the matter to Family Court for deciding the matter afresh after impleading grandfather of the minor as respondent was unwarranted---Constitutional petition was allowed, in circumstances.

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

----S.35A & O.XVII, Rr.1 & 2---Unnecessary/frequent adjournments---Effect---Failure of the counsel to appear before the Court upon acceptance/receipt of brief---Effect---Despite availing several opportunities, the respondent and his counsel failed to argue the case, on all previous dates of hearing---Petitioner, who was a female, came from far-flung area with the hope that her case would be decided on merits, but due to constant adjournments by counsel of respondent, case could not be decided---Once brief was accepted by the counsel, he was under legal obligation to appear before the Court and argue the case and assist the Court fairly and justly---Unnecessary and frequent adjournments for no legal or moral justification were unwarranted, thus, request for adjournment was turned down and the case was decided.

Tariq Khan Hoti for Petitioners.

Nemo for Respondents.

2025 C L C 159

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar and Shahid Khan, JJ

ASSISTANT COMMISSIONER KHWAZAKHELA and others---Petitioners

Versus

MUHAMMAD RASHAD and another---Respondents

Writ Petition No.577-M of 2021, decided on 12th December, 2023.

Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act (V of 1977)---

----S. 12---Tribunal, jurisdiction of---Scope---Suit for declaration filed by respondent No. 1 before the Tribunal constituted under Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977, was decreed---Respondent No.1, being served with a notice dated 28.02.2014 issued by Assistant Commissioner, filed civil suit before the Tribunal seeking therein declaration to the effect that khasra No.233 of the revenue estate measuring 04-marla was the ownership of his father, on whose death, it was devolved upon him---Entries of the revenue papers in favour of Provincial Government required rectification as the petitioners/defendants could not deny the ownership right of the plaintiff---Prayer for cancellation of notice issued by petitioner No.1 was also sought, with a further prayer that the petitioners/defendants be perpetually restrained from altering the nature of the property and transfer thereof through any means---Prayer for recovery of possession of the disputed property was also sought in case the plaintiff had lost possession during pendency of the suit and lastly, an amount of Rs.40,00,000/- and damages caused to his construction and household articles were also sought---Suit was resisted by the petitioners through their written statement on different legal and factual objections---Completion of evidence resulted into a decree in favour of the respondent/plaintiff for declaration, cancellation of notice, perpetual injunction and recovery of Rs.20,00,000/- as damages/compensation of the construction etc.---Validity---Tribunal could only grant negative declaration that the property reflected in the notice was not a public property but to the extent of rest of the reliefs that the entries in favour of Provincial Government in the revenue papers were inoperative upon the right of the plaintiff or for the recovery of damages caused to his construction, did not falling within the domain of the Tribunal and in such an eventuality, the judgment and decree of the Tribunal to the extent that the notice issued to respondent/plaintiff was against the law could be maintained but the intriguing aspect of the matter was that after the acceptance of writ petition and before approaching the Tribunal in the year 2016 through the suit by the plaintiff, his alleged owned property had been demolished by the petitioners/defendants and now at the spot, there was no constructed house, thus the notice issued by the petitioner No. 1 and served upon the respondent/plaintiff had lost its efficacy, and there was no need for any decree perpetual in nature restraining the petitioners/defendants from altering or demolishing his property as it was done earlier to the institution of the present suit---In such circumstances, resolution of the controversy was required from the civil Court that the entries in the revenue papers in favour of Provincial Government were ineffective upon the right of the plaintiff/ respondent No.1 along with other ancillary reliefs, which was the sole domain of the civil Court---Since the decree of the Tribunal for declaration, injunction and recovery of damages had been set aside, therefore, the judgment of the Tribunal shall in no way be a bar against the plaintiff and shall not create any obstacle towards his relief, which suit, if any, filed by the plaintiff shall be decided on its own merits by the Court without being influenced by the observation of the High Court---Constitution petition was disposed of accordingly.

Kaleem Shah and 16 others v. Sawab Khan and 17 others PLD 2002 SC 200; Muhammad Farid and others v. Municipal Committee PLD 1999 SC 41; Mian Hakim Ullah and 2 others v. Additional District Judge/Tribunal, Nowshera and 4 others 1993 SCMR 907; Municipal Committee Mingora through Chief Municipal Officer v. Nasar Khan and 8 others 2016 MLD 1610; Pakistan Represented by the Secretary to the Government of Pakistan, Ministry of Rehabilitation and Works, Islamabad and another v. H.H Ahmad 1971 SCMR 626 and Salahuddin Khan and 03 others v. Sultan-e-Rome and 04 others PLD 1973 Pesh. 95 rel.

Inayat Ullah Khan, A.A.G for Petitioners.

Aziz-ur-Rehman Swati for Respondent No.1.

2025 C L C 316

[Peshawar]

Before Muhammad Naeem Anwar, J

SARFARAZ KHAN ---Petitioner

Versus

PESHAWAR DEVELOPMENT AUTHORITY through Director and others ---Respondents

Civil Revisions Nos.456-P and 489-P of 2022, decided on 19th July, 2024.

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

----S.114, O.XVII, Rr.2, 3, O.XLIII, R.1 & O.IX, R.4---Specific Relief Act (I of 1877), Ss.42 & 54---Suits for declaration with perpetual and mandatory injunction---Filing of application for adjourning the suits sine die till the decision of pending writ petitions---Non-appearance of parties---Fixation of applications and not the suits for hearing when the notices for invoking powers under O.XVII, R.3, C.P.C., were issued and suits were dismissed for non-compliance of order of Trial Court to argue the suits in absence of petitioner---Appeals preferred by the petitioner were dismissed being time barred and the review applications were dismissed being incompetent---Validity---Dismissal of suit under O.XVII, Rr.2 & 3, C.P.C. provides the remedy under O.IX, R.4, C.P.C., where the plaintiff may bring a fresh suit, or the court may restore the suit on the application filed by the plaintiff---Orders of the Trial Court dismissing the suits for non-compliance of order by invoking the provisions of O.XVII R.3, C.P.C were not in consonance with law---Order XLIII R.1, C.P.C., is in respect of the appeals against the orders, however, there is no reflection of the appeals under O.XLIII, R.1, C.P.C.---It is the duty of the court to be aware of the facts and proper application of law, however, the appeals filed by the petitioners were dismissed being time barred against which review applications were filed which too were dismissed---Initial order of the Trial Court was not in consonance with law as the main suits before the Trial Court were not fixed for hearing rather the suits were fixed for hearing of the applications, which were submitted by the respondents to adjourn the cases sine die and the same were required to be decided after hearing the parties either in acceptance thereof or dismissal but in the absence of both the parties, the suits were dismissed which were not fixed before the court for hearing---Scope of application under S.114 read with O.XLVII, R.1, C.P.C., is limited and review is possible only when there is an error floating on the surface of the record which did not appear in the matters in hand, thus, the Trial and Appellate Courts had committed an illegality while passing the orders as suits could not be dismissed for non-compliance of direction of the court when no one was before the court---Civil Revisions were allowed, in circumstances.

Muhammad Aslam v. Nazeer Ahmed 2008 SCMR 942; Lahore Municipal Corporation v. S. Abdul Rahim and 3 others PLD 1973 Lahore 391 and Amanullah Khan and 5 others v. Mst. Hayat Bibi and 4 others 2006 CLC 1546 rel.

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

----O.XVII, Rr.2 & 3---Issuance of notice under O.XVII, R.3, C.P.C. in absence of parties---Effect---Notice to take a further step towards the logical end or the conclusion of the lis pending adjudication before the court could only be issued in the presence of the parties and not in their absence---No one was present before the court when notice was issued under O.XVII, R.3, C.P.C.---Trial Court could have proceeded in terms of O.XVII, R.2, C.P.C., but that was not done in the present matter and the Trial Court had gone to the extent of dismissing the suit under O.XVII, R.3, C.P.C.

(c) Administration of justice---

----Matters are to be decided on merits instead of technicalities and parties are to be allowed to lead evidence in support of their cases.

Aslam Khan Chamkani for Petitioner.

Syed Murtaza Zahid Gillani for Respondents.

2025 C L C 348

[Peshawar]

Before S M Attique Shah, J

TARIQ ALI ---Petitioner

Versus

HILAL SHAH ---Respondent

C.R. No.637-P of 2021, decided on 21st April, 2022.

Civil Procedure Code (V of 1908)---

----Ss.51, 115 & O.XXI, R. 37---Recovery of decretal amount---Arrest and detention---Principle---Petitioner/judgment debtor was aggrieved of his arrest by Executing Court for default in payment of decretal amount---Validity---When judgment debtor refuses or neglects to pay decretal amount, then he can be sent to prison---Before committing to prison, Executing Court has to provide judgment debtor an opportunity of showing cause regarding his committing to prison and upon his satisfaction that judgment debtor has means to pay amount of decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, then he can be sent to civil prison---In such case, Executing Court is under legal obligation to provide justiciable reasons thereof---Executing Court committed serious illegality while not providing petitioner/judgment debtor proper opportunity of showing cause regarding his committing to prison due to non-payment of decretal amount---When law required a thing to done in a particular manner, then the same has to be done in that very manner or it should not be done at all---High Court set aside order passed by Executing Court---Revision was allowed, in circumstances.

Muhammad Hayat Khan, for Petitioner.

Daulat Khan Mohmand, for Respondent.

2025 C L C 365

[Peshawar]

Before Ijaz Anwar, J

AJMAL KHAN and others ---Petitioners

Versus

SHER REHMAN and others ---Respondents

Civil Revision No. 05-P of 2007, decided on 13th May, 2024.

Pakistan (Administration of Evacuee Property) Act (XII of 1957)---

----Ss.25(2)(l) & 25(2)(s)---Limitation Act (IX of 1908), S.19 & First Sched. Art. 148---Specific Relief Act (I of 1877), Ss.42 & 54--- Declaration of title---Redemption of land mortgaged to a non-Muslim lady, who left the country at the time of partition in the year 1947---Non-issuance of notice to mortgagor to redeem the property---Effect---Limitation period, commencement of---Possession of the petitioners was not disputed---Federal Government terming the suit property as evacuee property transferred it in favour of Federal Government and then to a person respectively, who later on transferred it in favour of predecessor of respondents---Mortgage came to knowledge of the petitioners, when predecessor of the respondents instituted a suit against petitioners alleging to be the owners of the suit property, which prompted the petitioners to file a declaratory suit for redemption of the suit property---Trial Court dismissed the suit treating it to be barred by time under Art. 148 of Limitation Act, 1908---Appellate Court upheld the judgment and decree of Trial Court on the ground that it was not clear that non-Muslim lady had left the country after 1947, therefore, petitioners were required to have asked for redemption of the property within a period of sixty years---Validity---Such determination of the Appellate Court was completely against the record and did not have any relevance to the present controversy for the reason that if such argument of the Appellate Court was accepted then there was no occasion for the Federal Government to have declared the suit property as evacuee and transferred it in the year, 1990, therefore, Appellate Court had dismissed the appeal on wrong premises---Powers under S.25(2)(l) of Pakistan (Administration of Evacuee Property) Act, 1957, were delegated to the Deputy Rehabilitation and Assistant Rehabilitation Commissioner to issue notice to local mortgagors to redeem the property within one month failing which the property would be liable to be auctioned under S.25(2)(s) of the Act, but the petitioners were not given any notice, as such, from the acknowledgment of the right of redemption, a fresh period of limitation would be computed for the exercise of such right in terms of S.19 of the Limitation Act, 1908---Thus, if the period of limitation was counted from the year, 1947, still the suit of the petitioners was not barred by time---After the acknowledgement of the rights of the petitioners vide letter Memo dated 08.12.1959, a fresh period of limitation would be computed for exercise of such rights in terms of S.19 of the Limitation Act, 1908 and as such, from the year, 1959 too, the suit of the petitioners was not barred by time---Both the Courts below had failed to consider the question of limitation in its true perspective, as suit filed by petitioners for redemption was well within time in terms of Art.148 of the Limitation Act, 1908, therefore, Civil revision was allowed and judgments and decrees passed by the Courts below were set-aside and the suit of the petitioners was decreed as prayed for accordingly.

Muhammad Hanif and another v. Ghulam Rasool through LRs and others 2005 SCMR 1004 rel.

Altaf Ahmad for Petitioners.

Shams-ul-Haq for Respondents.

2025 C L C 449

[Peshawar]

Before S M Attique Shah, J

YOUSAF KHAN and another ---Petitioners

Versus

ALTAF KHAN and others ---Respondents

W.P. No. 222-P of 2022 with IR, decided on 23rd November, 2023.

Civil Procedure Code (V of 1908)---

----S.12(2), & O. VI, R.4---Specific Relief Act (I of 1877), S.42---Limitation Act (IX of 1908), First Sched., Art. 181---Suit for declaration---Revenue entries, correction of Application under S.12(2), C.P.C.---Limitation---Consent decree passed on the basis of compromise arrived at between the predecessors of the petitioners and respondents---Failure of the predecessors-in-interest of the respondents to challenge the consent decree in their life time---Estoppel---Petitioners filed a time barred application under S.12(2), C.P.C., after more than 04 decades, which was dismissed by the Trial Court, whereafter civil revision was filed by the respondent, which was accepted while remanding the application back to the Trial Court for decision afresh on merits after framing of issues---Validity---Once consent judgment/decree/order, as the case may be, has been passed by a competent court of law, then the parties cannot resile from it without any cogent and valid reasons---Consent decree operates as estoppel by judgment---When a person raises the ground of fraud or concealment to allege his claim or defend his stance, the same has to be specifically pleaded with clear particulars, which in the present case were not detailed by the respondents in their application---Framing of issues in an application under S.12(2), C.P.C., depends on the circumstances of each case, nature of alleged fraud and the decree so, obtained---Framing of issues in every case to examine the merits of the application would certainly frustrate the very purpose and object of S.12(2), C.P.C., which is to avoid protracted and time consuming litigation in order to save the genuine decree holder from grave hardships, ordeal of further litigation, extra burden on their exchequer and simultaneously to reduce unnecessary burden on the courts below---Respondents had filed the application under S.12(2), CPC, after more than four long decades and that too without mentioning any specific date of knowledge therein, which was not maintainable being barred by law in terms of Art.181 of the Limitation Act, 1908---Constitutional petition was allowed, in circumstances.

Sailendra Narayan v. State of Orissa AIR 1956 SC 346; Warriach Zarai Corporation v. F.M.C. United (Pvt) Ltd 2006 SCMR 531 and Basher Ahmad through LRs and others v. Muhammad Hussain and others PLD 2109 SC 504 rel.

Asghar Ali for Petitioners.

Rashid Rauf Swati for Respondents.

2025 C L C 506

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar, J

ANWAR ALI and others ---Petitioners

Versus

Mst. SAEEDA BIBI and others ---Respondents

Writ Petition No. 1212-M of 2020, decided on 24th June, 2024.

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

----O. I, R. 10 ---Addition or striking out of parties, doctrine of---Transposition of parties from one side (array of parties) to another side---Application of defendant for transposition from the panel of defendants to that of the plaintiffs---Scope---Attorney, appointment of---Scope---Plaintiff/sister filed suit against her two brothers and other sister (defendants) suit was resisted by all three defendants---However, pending adjudication of the suit, other sister (one of the defendants) moved an application before the Trial Court, seeking her transposition from the panel of defendants to that of the plaintiffs---Ground taken by defendant/sister (applicant) was that due to alleged connivance of her brothers (defendants), she had put her thumb impression on a document and appointed her own son as an attorney ( son/attorney)---Trial Court allowed said application , which order was maintained by the District Court---Petitioners (defendants/brothers) filed constitutional petition against concurrent orders---Validity---Admittedly, the deceased predecessor had left behind two sons (petitioners/defendants) and two daughters i.e the plaintiff and one of the defendants/applicants---No doubt, there was a power of attorney in favour of the son of applicant/sister, who was now before the Court through her husband---As per the application as well as stance of husband (special attorney) of applicant/sister), the power of attorney in favour of son was not correct---It was indisputable that written statement on behalf of applicant/sister was filed by her son, the alleged attorney---Admittedly, the fact of appointment of son as attorney had been denied by applicant/sister through her application signed by her husband as an attorney---Irrespective of the fact that the application was categorically resisted by the petitioners/brothers and without going into the controversy and resolution of the fact as to whether son was appointed as an attorney and in that capacity, he had filed written statement , or otherwise, such fact shall be determined/ resolved by the Trial Court but after recording of pro and contra evidence---No illegality, irregularity or jurisdictional defect had been noticed in concurrent findings of both the Courts below---Constitutional petition, being merit-less, was dismissed, in circumstances.

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

----O. I, R. 10---Addition or striking out of parties, doctrine of---Transposition of parties from one side (array of parties) to another side---Application of defendant for transposition from the panel of defendants to that of the plaintiffs---Scope---Application of defendant for transposition from the panel of defendants to that of the plaintiffs---Plaintiff/sister filed suit against her two brothers and other sister (defendants)---Suit was resisted by all three defendants---However, pending adjudication of the suit, other sister (one of the defendants) moved an application before the Trial Court, seeking her transposition from the panel of defendants to that of the plaintiffs---Ground taken by defendant/sister (applicant) was due to the alleged connivance of her brothers (defendants), she had put her thumb impression on a document and appointed her own son as an attorney (son/attorney)---Trial Court allowed said application, which order was maintained by the District Court---Petitioners (defendants/brothers) filed constitutional petition against concurrent orders---Contention of the petitioners/brothers was that after submission of the written statement, applicant/sister could, in no way, resile from her earlier stance---Validity---Fact of appointing son/attorney had been negated by applicant (defendant/sister) and was corroborated by her husband, who was before the Court---Transposition of a party from the array of plaintiffs or defendants and for that matter the appellants or respondents is a procedural matter, which is decided in view of the plea, or a fact alleged in the plaint or controverted through reply/written statement---No illegality, irregularity or jurisdictional defect had been noticed in concurrent findings of both the Courts below---Constitutional petition, being merit-less, was dismissed, in circumstances.

Rukhsana Mashadi v. Qasim PLD 2002 Karachi 542 and Central Government of Pakistan v. Suleman Khan PLD 1992 SC 590 ref.

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

----O. I, R. 10 ---Addition or striking out of parties, doctrine of---Prejudice, absence of---Transposition of parties from one side (array of parties) to another side---Application of defendant for transposition from the panel of defendants to that of the plaintiffs---Scope---Application of defendant for transposition from the panel of defendants to that of the plaintiffs---Plaintiff/sister filed suit against her two brothers and other sister (defendants)---Suit was resisted by all three defendants---However, pending adjudication of the suit, other sister (one of the defendants) moved an application before the Trial Court, seeking her transposition from the panel of defendants to that of the plaintiffs---Ground taken by defendant/sister (applicant) was that due to alleged connivance of her brothers (defendants), she had put her thumb impression on a document and appointed her own son as an attorney (son/attorney)---Trial Court allowed said application, which order was maintained by the District Court---Petitioners (defendants/brothers) filed constitutional petition against concurrent orders---Validity---By transposition of applicant (sister) from the panel of defendants to the panel of the plaintiffs, no prejudice had been caused to the petitioners, who were the brothers of applicant and plaintiff, being the sons of predecessor-in-interest of parties and the fact of submission of the written statement of applicant by alleging therein that a portion of the property was transferred to her, would be determined when she would be in the witness box either in person or through attorney---No illegality, irregularity or jurisdictional defect had been noticed in concurrent findings of both the Courts below---Constitutional petition, being merit-less, was dismissed, in circumstances.

Mian Abdul Waheed v. Mst. Amtul Hamid and others PLD 1962 (W.P) Lahore 114 ref.

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

----O. I, R. 10 --- Addition or striking out of parties, doctrine of---Transposition of parties from one side (array of parties) to another side---Application of defendant for transposition from the panel of defendants to that of the plaintiffs---Scope---Application of defendant for transposition from the panel of defendants to that of the plaintiffs---Plaintiff/sister filed suit against her two brothers and other sister (defendants)---Suit was resisted by all three defendants---However, pending adjudication of the suit, other sister (one of the defendants) moved an application before the Trial Court, seeking her transposition from the panel of defendants to that of the plaintiffs---Ground taken by defendant/sister (applicant) was that due to alleged connivance of her brothers (defendants), she had put her thumb impression on a document and appointed her own son as an attorney (son/attorney)---Trial Court allowed said application, which order was maintained by the District Court---Petitioners (defendants/brothers) filed constitutional petition against concurrent orders---Validity---In transposition, a person who is already on record as a plaintiff or a defendant seeks his transposition from one capacity to another capacity i.e. from plaintiff to defendant or vice versa---Since primary object of O. I, R. 10 of C.P.C., 1908, is to avoid multiplicity of proceedings, there is no reason why the doctrine of addition or striking out parties does not apply to transposition of parties from one side to another---No illegality, irregularity or jurisdictional defect had been noticed in concurrent findings of both the Courts below---Constitutional petition, being merit-less, is dismissed, in circumstances.

Saila Bala Dassi v. Nirmala Sundari Dassi AIR 1958 SC 394 ref.

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

----O. I, R. 10 ---"Dominus litus", principle of---Addition or striking out of parties, doctrine of---Transposition of parties from one side (array of parties) to another side---Application of defendant for transposition from the panel of defendants to that of the plaintiffs---Scope---A court can order the transposition of parties in an appropriate case---No doubt ,the plaintiff is dominus litus and master of his suit, who files his suit against the person against whom he has some sort of claim, and he cannot be urged to add a person as defendant if he does not wish to do so---The court will unceasingly consider the wishes of the plaintiff before adding a third person as a defendant in the suit---However, if the court finds that addition of the new defendant is absolutely essential and cannot be avoided to enable it to adjudicate effectively and completely the matter in controversy between the parties, it will add a person as a defendant even without the consent of the plaintiff---The principle of dominus litus cannot be overstretched in the matter of impleading or transposition of parties, because it is the duty of the court to ensure that for deciding the real matter in dispute if a person is a necessary party, the court can direct the addition, striking or even the transposition of the parties from the plaintiff to defendant or defendant or plaintiff vice versa depending upon the facts of the case---No illegality, irregularity or jurisdictional defect had been noticed in concurrent findings of both the Courts below---Constitutional petition, being merit-less, is dismissed, in circumstances.

Fayaz Muhammad Qazi for Petitioners.

Razi Khan for Respondents.

2025 C L C 531

[Peshawar]

Before S M Attique Shah, J

Dr. HAZRAT BILAL and others ---Petitioners

Versus

ATHAR AHMAD ARBAB and others ---Respondents

Civil Revision No. 136-P of 2022, decided on 20th April, 2022.

(a) Specific Relief Act (I of 1877)---

----S. 8---Transfer of Property Act (IV of 1882), S. 52---Suit for possession through partition---Lis pendens, principle of---Applicability---Grant of temporary injunction---Petitioner filed application for registration of sale deed qua transfer of property during the pendency of suit and existence of status quo order, which was concurrently refused by the courts below---Validity---Petitioner/vendor was a contesting party before the trial court in the pending suit filed by the respondent and if he was allowed to alienate the property in question in favour of petitioner/vendee, then definitely it would adversely affect the interest and cause of respondent---Pendency of a suit in any court or proceeding, which was not collusive and in which any right to immovable property was directly and specifically in question, the property could not be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order, which may be made therein---Findings of the courts below did not suffer from any illegality or irregularity---Civil revision was dismissed, in circumstances.

Farzand Ali v. Khuda Bakhsh PLD 2015 SC 187 rel.

(b) Transfer of Property Act (IV of 1882)---

----S. 52---Principle of lis pendens---Object and purpose---Section 52 of Transfer of Property Act, 1882 (TPA) in legal parlance is known as principle of "lis pendens", which literally means a pending suit or cause---Doctrine of "lis pendens" has been defined as jurisdiction, power, or control which a court acquires over property involved in a suit pending the continuance of the action and until final judgment therein---Object and purpose of S.52 of TPA is to protect the parties to the litigation against alienation by them during the pendency of litigation---If the vendor is allowed to alienate the disputed property during the pendency of the suit, then, indeed, there would be no end to the pending litigation and certainly justice would be defeated, which is neither permissible nor desirable under the law---Section 52 of TPA is based upon the well-known maxim of equity "pendente lite nihil innovetur", which means that during the pendency of litigation nothing new should be introduced, which adversely affects the rights of the litigating parties.

Tariq Khan Hoti for Petitioners.

Fawad Khan for Respondents.

2025 C L C 644

[Peshawar]

Before S M Attique Shah, J

Haji AZIZ-UR-RAHMAN ---Petitioner

Versus

FAZAL WADOOD and others ---Respondents

Writ Petitions Nos. 4970-P and 4971-P of 2022, decided on 27th May, 2024.

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

----O.XX, R.14 & O.XXI, R. 35(2)---Execution of decree in pre-emption suit---Mode of execution and delivery of possession---Plea of joint possession in objection petition---Executing Court passed order of symbolic possession in favour of petitioner/decree-holder---Contention of the petitioner was that since the matter pertained to decree in pre-emption suits, thus, instead of symbolic possession order of physical possession should have been passed---Validity---Pre-emption decrees must be formulated and executed as per the specific provision of O.XX R.14, C.P.C.---Title of the petitioner/decree holder in respect of the pre-empted properties accrued from the date on which payment of the purchase and costs (if any) was made by him in accordance with the terms of the decrees passed in his favour under the provisions of O.XX R.14, C.P.C. and on the basis of such title, accrued to him, he was entitled to the delivery of physical possession of the properties in question from the respondents/judgment-debtors including any other person, who happened to possess and maintain such properties on their behalf---Question of symbolic possession could arise only when the suit was decreed for possession in terms of O.XX1, R.35(2), C.P.C. which was certainly not the case of the petitioner as the suits were for possession through pre-emption and the same had rightly been decreed by the trial court in terms of O.XX, R.14, C.P.C. and the same were required to be executed in letter and spirit---Constitutional petitions were allowed, in circumstances.

Mahabir Gope v. Harbans Narain AIR 1932 SC 205; Muhammad Ali's case 1989 SCMR 640 and Muhammad Inayat's case PLD 1987 Lah. 537 Rel.

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

----O.XXI, R. 35(2)---Execution of decree---Duty of executing court---Executing court cannot go beyond the decree and must execute it in its letter and spirit.

Zia-ur-Rehman (Senior) for Petitioner.

Malik Usman Nasir for Respondents.

2025 C L C 664

[Peshawar (Mingora Bench)]

Before Ijaz Anwar, J

MUHAMMAD SHERIN and others ---Petitioners

Versus

ZIARAT KHAN and others ---Respondents

W. P. No. 965-M of 2021 with Interim Relief (N) and C.Ms. Nos. 15 of 2022 and 47 of 2023, decided on 14th October, 2024.

Specific Relief Act (I of 1877)---

----Ss. 8, 42 & 54---Civil Procedure Code (V of 1908), O.XXVI, R. 9---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Commission to make local investigation---Scope---Frivolous petitions---Costs, imposing of---Suit for possession, declaration and permanent injunction was filed by respondents/plaintiffs in which petitioners/defendants claimed that Trial Court did not have territorial jurisdiction over the matter---Trial Court considering objection of petitioners/defendants appointed local commission to ascertain about ground position of disputed property as to whether it was situated in the area falling within the jurisdiction of Trial Court---Validity---Respondents/plaintiffs were unnecessarily dragged up till the High Court through frivolous petitions with a calculated effort to delay the matter, at very initial stage---High Court declined to interfere in the order passed by Trial Court and imposed costs upon petitioners/defendants---Constitutional petition was dismissed, in circumstances.

Zakir Mehmood v. Secretary, Ministry of Defence (DP), Pakistan Secretariat, Rawalpindi and others 2023 SCMR 960; Government of Khyber Pakhtunkhwa through Secretary, Elementary and Secondary Education Department, Peshawar and others v. Amjad Ur Rahman and others 2024 SCMR 424; Javed Hameed and others v. Aman Ullah and others 2024 SCMR 89; Mst. Asma Haleem v. Abdul Haseeb Chaudhry and others 2024 SCMR 1714; Province of Punjab through the Deputy Commissioner, Collector District Gujranwala and others v. Zulfiqar Ali and another 2024 SCMR 22 and Capital Development Authority, CDA through Chairman, CDA, Islamabad v. Ahmed Murtaza and another 2023 SCMR 61 rel.

Ikram Ullah Khan and Akhtar Munir Khan for Petitioners.

Qazi Rafiq-ul-Islam, Ihsanullah (Tajik) and Zia-ul-Haq for Respondents.

2025 C L C 691

[Peshawar]

Before Muhammad Naeem Anwar, J

AYUB KHAN and others ---Petitioners

Versus

Mst. IMRANIA and others ---Respondents

C.R. No. 417-P of 2016, decided on 30th July, 2024.

West Pakistan Land Revenue Act (XVII of 1967)---

----Ss.53, 135 & 172---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908), O.XLI, R. 25---Partition of landed property---Jurisdiction of Civil Court---Scope---Resolution of complicated question of facts regarding a joint property---Rights of vendee and share-holders in a joint khata in column of cultivation---Determination---Competency of a vendee of column of cultivation to participate in partition proceedings---Scope---Culmination of partition proceedings in favour of petitioners being owners in joint khata and issuance of warrants of actual possession---Respondent/vendee claimed to be owner in possession of land in dispute on the basis of mutations attested in her favour on the basis of decrees of Court---Validity---Purchaserin column of cultivation is not competent to file a suit for partition as it is in respect of the partition of the property amongst the co-owners i.e., the set of owners from a particular Khata, and vendee of column of cultivation step into the shoes of his vendor---Respondent had already approached the civil court for determination of her right---Total entitlement of respondent on the strength of mutations attested in her favour through judgment and decree, and the property, which was devolved upon her from her father, being subject to the ownership of their vendors were questions requiring resolution---A person cannot transfer a better title than he owns as envisaged in the Latin maxim 'Nemo dat quod non-habet' (no one can give what they do not have)---Total entitlement of the vendor shall be the shares alienated through mutations---Mutationsin favour of respondent in isolation with the rest of the factors might not be made basis for rectification of the entries in revenue papers unless the status of the vendor/vendors was determined---There was no evidence regarding the total ownership of the vendor of respondent and her predecessor-in-interest for resolution of her entitlement, thus, High Court was left with no other option but to have resort to the provisions of O.XLI R. 25 of C.P.C. for proper determination from Trial Court---Since intricate question of law and facts was involved in the matter, it could not be resolved by the revenue office, therefore, the submission of the petitioners for the dismissal of suit was held to be misconceived---Although the entire proceedings of partition which culminated in partition mutation were affected by the suit of the respondent, yet right of respondent could not be overlooked as both i.e., the beneficiary of partition mutations and the vendee of column of cultivation, shall be seen in juxtaposition---Entire confusion and perplexity were, in fact, based upon the attestation of mutations in column of cultivation but even then, the rights of the parties required determination once for all based on Latin maxim "Ubi jus ibi remedium" which encapsulated the principle that when a legal right is violated, the law provides a corresponding remedy or relief to the aggrieved party---Civil revision was allowed, and the judgment and decree of the Appellate Court was set aside and suit of the plaintiff/respondent was deemed to be pending before the Trial Court where all the vendees of column of cultivation and that of column of ownership were ordered to be arrayed and the matter was ordered to be resolved.

Kala Khan v. Shah Hussain and 9 others 1983 CLC 684; Muhammad Muzaffar Khan v. Muhammad Yousaf Khan PLD 1959 SC 9; Raza Khan through Legal Heirs and 3 others v. Member, Board of Revenue, N.W.F.P., Peshawar and others 1999 SCMR 873; Syed Sardar Shah v. Qazi Masood Alam 2003 CLC 857; Mst. Gul Pari alias Gubaro v. Zarin Khan PLD 1994 Peshawar 249 and Jan Muhammad through Mubarik Ali and others v. Nazir Ahmad and others 2004 SCMR 612 rel.

Muhammad Shoaib Khan for Petitioners.

Muhammad Tariq Khan for Respondents.

2025 C L C 864

[Peshawar (Abbottabad Bench)]

Before Muhammad Faheem Wali, J

MUHAMMAD ISHAQ ---Petitioner

Versus

FIDA MUHAMMAD ---Respondent

Civil Revision No. 275-A of 2018, decided on 26th September, 2024.

Specific Relief Act (I of 1877)---

----S. 12---Suit for possession---Proceedings of Revenue Officer, non-challenging of---Effect ---Order attaining finality---Claim of the plaintiff was that he was owner in possession of the suit-property and that the defendant had illegally encroached to the extent of 08 marlas in the suitproperty as per report of Girdawar Circle---Defendant filed revision as the Appelate/District Court allowed appeal filed by the plaintiff setting aside the dismissal order---Validity---Record reflected that the respondent/plaintiff moved an application to the concerned Assistant Commissioner Revenue for conducting demarcation of land and the said application was marked to the Tehsildar, for disposal, who deputed Girdawar Circle and report was submitted whereby property measuring 08 marlas was found encroached upon by the adjacent owner (the petitioner/defendant)---Tehsildar, on receiving the said report while disposing the application , directed the respondent/plaintiff to get possession of the encroached area through competent court---Record further depicted that the said order of the Tehsildar was never challenged before the revenue hierarchy which had now attained finality---Duly exhibited report of the Girdawar obviously showed that an area measuring 08 marlas was encroached by the petitioner/defendant and the said report was never challenged before the revenue hierarchy---Besides, the petitioner/defendant did not file any objection while proceedings were being conducted and had failed to file any appeal, revision etc. provided under the Land Revenue Act, 1967, against the order passed by the Tehsildar, therefore, the same attained finality---Furthermore, the exhibited report of demarcation proceedings reflected that the parties were present at the relevant time, however, the report was not questioned by filing any objection or appeal/revision, therefore, the same had been admitted as correct and the said order would be considered as final---Hence, the findings of the Appellate Court were well reasoned---Petitioner had failed to point out any illegality or irregularity committed by the Appeal Court while passing the impugned judgment warranting interference by the High Court in its revisional jurisdiction---Revision petition, being meritless, was dismissed, in circumstances.

Haji Muhammad Yaqoob for Petitioner.

Khalid Rehman Qureshi for Respondent.

2025 C L C 992

[Peshawar (D.I.Khan Bench)]

Before Inam Ullah Khan, J

SHAH JAHAN and others ---Petitioners

Versus

Mst. HASEENA BIBI and others ---Respondents

Civil Revision No. 178-D of 2024 with C.M. No. 282-D of 2024, decided on 24th February, 2025.

(a) Islamic law---

----Will---Proof---Follower of 'Shia' sect---Relevant revenue record exhibited by one of the witnesses of plaintiff /respondent revealed that the deceased (father of respondent/lady-plaintiff) was the owner of the property-in-question---Respondent/plaintiff not only produced/exhibited the will-deed but also produced the scribe and marginal witnesses of the same (will-deed) as her witnesses---In said will-deed the deceased disclosed that he was follower of Shia sect and directed to conduct his funeral ceremony according to Shia sect and to burry him in a shia graveyard; he further directed that the respondent/plaintiff is his sole legal heir and his legacy will be devolved according to Shia sect---Petitioners/defendants were not able to shatter the evidence qua writing of the will-deed---As many as six witnesses produced by the respondent/plaintiff, including one who led the funeral prayer of deceased, remained consistent to the effect that the deceased was follower of Shia sect till his death---Respondent/plaintiff had proved on record that her father was follower of Shia sect and he validly scribed the will-deed---No mis-reading, non-reading or unlawful exercise of jurisdiction could be pointed out and both the Courts below had passed the impugned judgments/decrees after proper appreciation of the record/evidence, thereof the concurrent finding could be interfered with---Revision petition, being meritless, was dismissed in limine, in circumstances.

(b) Maxim---

----'Actori incumbit onus probandi'---Meaning and scope---He who asserts a fact must prove the same, which is based on latin maxim "onus probandi actori incumbit"---Mode of proof is the procedure by which the "facts in issue" as also "the relevant facts " have to be proved during the trial---In the present case, the petitioners/defendants were unable to produce medical record showing their assertion regarding disease of the deceased suffering from mouth cancer and that at the time of writing will deed, he was unable to talk---Revision petition was dismissed.

(c) Islamic law---

----Sect/sub-sect by birth, renouncing of---Scope and effect---Sect of the deceased---Proof---Inheritance---One of the witnesses produced by the respondent/plaintiff stated that he led the Janaza (funeral) prayer of deceased as per Shia sect---One of the witnesses of the petitioners/defendants (DW-1) stated that two funeral prayers of the deceased were offered; one, as pre Shia sect, and the other, as per Sunni sect led by a Maulvi (prayer leader)---On the request of said witness, prayer leader was summoned but he was abandoned---Subsequently, the prayer leader was examined as a Court Witness (CW-1), who stated in his statement that the deceased was follower of Shia sect and that he (prayer leader) had not led his Janaza (funeral) prayer---Two of the (six) witnesses of respondent/plaintiff admitted in their cross-examination that by birth the deceased was Sunni but that he (deceased) later on adopted Shia sect---Under Para 31 of Chapter 3 of Principles of Muhammadan Law, a Muhammadan male or female who has attained the age of puberty, may renounce the doctrines of the sect or sub-sect to which he or she belongs and adopt the tenets of the other sect or any other sub-sect and he or she will thenceforth be subject to the law of the new sect or sub-sect---Respondent/plaintiff had proved on record that her father was follower of Shia sect and he validly scribed the will-deed---No mis-reading, non-reading or unlawful exercise of jurisdiction had been pointed out and both the Courts below had passed the impugned judgments/decrees after proper appreciation of the record/evidence, thereof the concurrent finding could not be interfered with---Revision petition, being meritless, was dismissed in limine, in circumstances.

(d) Islamic law---

----Inheritance---Shia law---Principles---Shia Law of inheritance divides heirs into two groups, namely, (1) heirs by consanguinity, that is, blood relation, and (2) heirs by marriage, that is, husband and wife---Heirs by consanguinity are divided into three classes and each class is sub-divided into two sections---Para 88 of Chapter 8 of the principles of Muhammadan Law provided three classes of heirs;

I (1) Parents;

II (ii) Children and other lineal descendants h.l.s;

II (i) Grandparents h.h.s. (true as well as false);

II (ii) Brothers and sisters and their descendants h.l.s;

III (i) Paternal and (ii) maternal, uncles and aunts of the deceased and of his parents and grandparents h.h.s, and their descendants h.l.s. Of three classes of heirs, first excludes the second from inheritance and second excludes third---In the present case, admittedly, the respondent/plaintiff was the only daughter of the deceased while he divorced his wife during his lifetime---Respondent (plaintiff/lady), being heir of first class, excluded the petitioners, who were the heirs of third class---Even otherwise, it is settled principle of Islamic Law that nearer in degree excludes the more remote, therefore, as per the pedigree table and the law, the petitioners were not only distant kindred of the deceased but also remoter in degree---No mis-reading, non-reading or unlawful exercise of jurisdiction had been pointed out and both the Courts below had passed the impugned judgments/decrees after proper appreciation of the record/evidence, therefore the concurrent finding could not be interfered with---Revision petition, being meritless, was dismissed in limine, in circumstances.

Syed Ansar Hussain v. Syed Risalat Hussain and 10 others 1985 MLD 265 and Rasool (deceased) through L.Rs and 6 others v. Jano and 10 others 2021 MLD 1759 ref.

Khalida Shamim Akhtar v. Ghulam Jaffar and another PLD 2016 Lahore 865 distinguished.

Burhan Latif Khaisori for Petitioners.

Nemo for Respondents (motion case).

2025 C L C 1010

[Peshawar]

Before Muhammad Naeem Anwar and Dr. Khurshid Iqbal, JJ

Messrs WAQAS ENTERPRISES ---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Minerals Development Department and others ---Respondents

W. P. No. 1662-A of 2022, decided on 9th August, 2023.

Khyber Pakhtunkhwa Mines and Minerals Act (XXXVI of 2017)---

----Ss. 10, 21 & 62---Constitution of Pakistan, Art. 199---Constitutional petition---Mining lease---Failure to apply for grant of lease---Petitioners were aggrieved of not conducting auction for grant of mining lease---Validity---Area was situated within the limits of area under the control of armed forces, thus, ordinarily organizations avoided coming forward to participate in the process---If petitioners had submitted their applications in the prescribed manner with their due acknowledgement by respondent / authorities, their cases would have been at better footing---Petitioners stood as strangers to the process of granting titles---Petitioners failed to show any application placed on the record, which was duly filled with fulfillment of key requirements for the process---Remedy under Constitutional jurisdiction is in the nature of equitable and extraordinary relief---Any party claiming such remedy must come to the Court with clean hands and do equity while seeking equity---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Creative Electronics (Pvt.) Ltd. v. Government of Pakistan through Prime Minister and others PLD 2020 Islamabad 319; Muhammad Hussain Jaffary v. Maryam Bibi 1985 CLC 451; Syed Shah v. Political Agent Bajaur Agency and 3 others PLD 1981 Peshawar 57; Ahmad Khan and others v. Custodian of Evacuee Property West Pakistan and others PLD 1963 Karachi 450; Mohammad Sajjad v. Secretary Higher Education Azad Government of the State of Jammu and Kashmir Muzaffarabad and 4 others 2023 PLC (C.S.) 735; Shabraz Shabir v. District Education Officer (Male) Elementary and Secondary Education, Muzaffarabad 2023 PLC (C.S.) 718 and Junaid Abbasi v. Azad Government of the State of Jammu and Kashmir PLD 2023 (H.C AJ&K) 116 rel.

Kamran Gul for Petitioner.

Tahir Hussain Lughmani and Asghar Khan Kundi for Respondents.

Syed Asif Jalal, Additional Advocate General for Official Respondents.

2025 C L C 1210

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar, J

MUHAMMAD RAHMAN ---Petitioner

Versus

MUHAMMAD AYUB and others ---Respondents

W. P. No. 358-M of 2022, decided on 11th October, 2024.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss.13 & 14---Eviction of tenant---Default in payment of outstanding rent---Recovery by landlord---Possession of the tenant over the premises after expiry of period of tenancy---Disappearance of tenant from the proceedings before the Rent Controller---Partial acceptance of application to the extent of ejectment and dismissal of appeal of tenant for recovery of outstanding rent---Stance of the tenants was that after the expiry of tenancy possession of the premises was handed over to the landlord with payment of all dues---Validity---Possession of the tenants over the rented premises till January 2024 had been proved and they could not prove the payment of rent for the said period, thus, in such an eventuality it was not only unjustified to disentitle the landlord from recovery of the outstanding rent at admitted rate but also against the law and the findings of the Rent Controller that the landlord could not prove the outstanding rent against the tenants were also against the facts because once it was proved that the tenants were in possession of the shop even after the expiry of tenancy, then it was their obligation to pay the rent at the rate admitted by them---Payment of the rent of the rented property was the duty of the tenants to justify their possession otherwise their possession was illegal and their status would be of the trespasser because the possession of the rented premises could only be justified through payment of rent---Findings of the Appellate Court dismissing the appeal on the ground of limitation was also against the law in juxtaposition with the possession of the tenants---Stance of tenants was required to be substantiated through cogent, reliable and convincing evidence, which was lacking on their part, thus, their submission to the extent of contents of the written reply for proof of handing over the possession of the rented premises was misconceived---Constitutional petition was allowed, in circumstances.

Miss Akhtar Qureshi v. Nisar Ahmad 2002 SCMR 1292; Juma Sher v. Sabz Ali 1997 SCMR 1062; Mian Muhammad Fareed v. Khalid Wadood 2021 CLC 1093 and Muhammad Iqbal v. Syed Muhammad Tahir Zahoor and others 2020 MLD 522 ref.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss.13 & 14---Eviction of tenant---Default in payment of outstanding rent---Solitary statement of landlord on oath not cross-examined by the tenants---Evidentiary value---Solitary statement of the landlord had not been cross-examined and whatever was deposed by him had gone unrebutted---In such circumstances, sole statement of the landlord could be considered if it was inspiring confidence---Constitutional petition was allowed.

Messrs F.K Irani and Co. v. Begum Feroze 1996 SCMR 1178 rel.

(c) Qanun-e-Shahadat (10 of 1984)---

----Art. 30---Evidence---Admission---Portion of a statement not cross-examined is deemed to have been admitted by the other side.

Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700; Haji Din Muhammad through legal heirs v. Mst. Hajira Bibi and others PLD 2002 Peshawar; Mrs. Akbar Brothers v. M. Khalil Dar PLD 2007 Lahore 385 and Mst. Zargoon and others v. Mst. Shadana and others 2002 CLC 1539 rel.

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

----O. VI, R. 1---Pleadings---Scope---Pleadings itself is not evidence at all, and pleadings without evidence cannot be taken into consideration as proof of a particular fact nor the evidence without pleadings can substantiate a particular version.

Inayat Ali Shah v. Anwar Hussain 1995 MLD 1714; Pir Wali Khan v. Niaz Badshah 2013 MLD 1106; Mir Laiq Khan v. Sarfraz Jehan 2013 MLD 1449; Mst. Ghazala Yasmeen v. Sarfraz Khan Durrani 2013 CLC 1406 and Messrs Choudhary Brothers Ltd., Sialkot v. Jaranwala Central Co-operative Bank Ltd., Jaranwala 1968 SCMR 804 rel.

Aurangzeb for Petitioner.

Hamid Ullah Khan for Respondents Nos. 1 and 2.

2025 C L C 1247

[Peshawar]

Before S M Attique Shah, J

FAYAZ and others ---Petitioners

Versus

MUHAMMAD HANEEF ---Respondent

Civil Revision No. 700-P of 2022, decided on 29th April, 2024.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11, O.I, Rr. 9 & 10 & O.VI, R. 17---Punjab Land Revenue Act (XVII of 1967), S. 135---Specific Relief Act (I of 1877), Ss. 42 & 54---Shamilat Deh---Suit for declaration alongwith permanent and mandatory injunction---Misjoinder and non-joinder of necessary party---Amendments in pleadings---Scope---Application for rejection of plaint was accepted on the grounds that neither relief of possession was claimed in the suit, nor the entire propriety body of the Shamilat Deh was impleaded as party---Appellate Court set aside order of rejection of plaint and remanded the matter to Trial Court for decision on merits---Validity---Co-sharer in exclusive possession of a certain portion of joint land can retain possession of the same to the extent of his shares, so long as there is no official partition between the co-sharers by metes and bounds---Suit filed by a co-owner under the provisions of S. 42 read with S. 54 of the Specific Relief Act, 1877, is maintainable, who is in possession of a piece of Shamilat land, which has not yet been partitioned and there is a denial to his title and threat to his possession by the other members of the proprietary body---Plaint cannot be rejected for want of impleadment of entire proprietary body of the village because the necessary and proper party can be impleaded by the Court, at any stage, of the proceedings in order to pass an effective decree in terms of the provisions of O. 1, R. 10, C.P.C.---No suit shall be defeated on account of mis-joinder or non-joinder of the necessary parties, rather, the courts are mandated to adjudicate upon the matter in dispute, taking into account the specific facts and circumstances of the case, as well as the rights and interests of the parties directly involved therein, as postulated by O.1, R. 9 of C.P.C.---Plaint could not be rejected merely for want of non-seeking therein a consequential relief, despite being mandatory in such like suits, rather, the Trial Court could direct the plaintiff to amend his plaint by including consequential relief therein in order to secure ends of justice---Suit cannot be dismissed on account of any defect in its form and the court is competent to direct amendment in plaint for extending relief to which the party is otherwise entitled on merits---Courts should exercise their powers liberally while allowing the amendments in the cases where such amendments are necessary to secure the ends of justice---Civil revision was partially allowed, in the circumstances and impugned findings of Appellate Court were modified to the extent that the respondent was allowed to file an amended plaint seeking therein partition of the entire Shamilat Deh by impleading the entire proprietary body of the village and consequential relief of possession.

Muhammad Muzaffar Khan v. Muhammad Yousuf Khan PLD 1959 SC 9; Rabnawaz and others v. Akbar Ali and others 1989 SCMR 93; Atta Muhammad v. Sahibzada Manzoor Ahmad and others 1992 SCMR 138; Muhammad Ramzan v. Nasir Hussain and another PLD 1959 SC 147; Samar Gul v. Central Government and others PLD 1986 SC 35; Mir Mazar v. Azim PLD 1993 SC 332; Samar Gul v. Central Governments and others PLD 1986 SC 35; Ahmad Din v. Muhammad Shafi PLD 1971 SC 762; Ghulam Bibi's case 1985 PLD SC 345; Javaid Iqbal v. Abdul Aziz and another PLD 2006 SC 66 and Jamal Din alias Muhammad Jamal v. Mst. Mehmooda Begum 2002 CLC 361 rel.

Mian Iftikhar Jan (Nowshera) for Petitioners.

Muhammad Adnan Qureshi for Respondent.

2025 C L C 1273

[Peshawar]

Before S M Attique Shah, J

Mst. FATIMA ---Petitioner

Versus

MUSHTAQ and others ---Respondents

Writ Petition No.1056-P of 2023, decided on 15th April, 2024.

Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched. & 17, ---Qanun-e-Shahadat (10 of 1984), Arts.17 & 79---Suit for recovery of dower---Execution of Kabin Nama/Dower Deed---Wife/petitioner in order to establish her claim produced one of the marginal witness alongwith scribe of the Kabin Nama leaving out other marginal witness---Plea of non-fulfilment of requirement of Arts. 17 and 79 of the Qanun-e-Shahadat, 1984, (Order) had been taken by the respondents---Family as well as Appellate Court dismissed the suit and appeal of the petitioner concurrently on this score---Validity---Both the courts below ignored that in view of S. 17 of the Family Courts Act, 1964, the applicability of C.P.C. and Qanun-e-Shahadat, 1984, to the proceedings before the Family Courts had been excluded---Statement of the 'scribe' could be considered to be a statement of marginal witness in the circumstances when he appeared before the concerned court and deposed that the deed/agreement was scribed by him and thumb impressions and signatures were put by the parties---Person, who writes a document, is as good a witness as anybody else, if he has signed the document as a witness---Petitioner in order to prove the execution of dower deed produced the 'scribe' of the said dower deed as a witness, who while appearing in the court admitted the execution of the dower deed and categorically stated that it was signed by the executant and the marginal witnesses, which statement was supported by attesting witness of the dower deed, who also verified his thumb impression over the same, thus, the statement of the scribe could be termed to be a statement of marginal witness---Constitution petition was allowed, in circumstances.

Farzana Rasool v. Dr. Muhammad Bashir 2011 SCMR 1361 and Ram Samujh Singh v. Mainath Quer AIR 1925 Oudh 737 rel.

Bilal Khalil for Petitioner.

Nemo for Respondents.

2025 C L C 1482

[Peshawar]

Before Wiqar Ahmad, J

Haji ZUBAIR AHMAD and others ---Petitioners

Versus

PROJECT DIRECTOR, KDA, KOHAT and others ---Respondents

Civil Revision No. 411-P of 2020 with C.M. No. 1981-P of 2024, decided on 13th January, 2025.

Civil Procedure Act (V of 1908)---

----O. VI, Rr. 14, 15, 17 & O. XXIX, R. 1---Specific Relief Act (I of 1877), Ss. 42, 54 & 55---Suit for declaration along with perpetual and mandatory injunction---Amendment in the pleadings---Scope---Improper signing/subscription and verification of written statement---Unauthorized concessional statement by the counsel---Cancellation of allotment of houses owing to non-deposit of remaining sale consideration---Suit instituted by the petitioners was decreed, but the appellate court partially allowed the appeal of the respondents while remanding the matter to the Trial Court for decision afresh after obtaining fresh written statement---Validity---Corporate body / Respondent (which was a public sector organization) was allowed to at least present their proper stance before the Trial Court through duly instituted proceedings and file written statements in accordance with O. VI, Rr. 14 and 15, C.P.C.---Appeal being continuation of proceedings the appellate stage was a proper stage for allowing curing of defect in the proceedings---Nothing on factual side was removed from written statement, however, only a concessional statement that if the petitioners became willing and ready to deposit amount of taxes, then their suit might be decreed, was sought to be disowned through amendment, which was a concessional statement and not an assertion of fact---Concessional statement was also found to have been made on behalf of a public sector corporation without due authorization---Petitioners failed to make out a case for interference by High Court in exercise of its revisional jurisdiction---Appellate Court had already allowed the application filed by the respondents for amendment in the written statement, which order was maintained by the High Court---Civil Revision was dismissed, in circumstances.

SDO/AM Hasht Nagri Sub-Division PESCO, Peshawar and others v. Khawazan Zad PLD 2023 SC 174 rel.

Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688 and Abaid Ullah Malik v. Additional District Judge, Mianwali and others PLD 2013 SC 239 distinguished.

Abdul Samad Khan for Petitioners.

Sabah ud Din Khattak for Respondents.

2025 C L C 1503

[Peshawar]

Before Syed Arshad Ali and Wiqar Ahmad, JJ

ABDUR REHMAN ---Petitioner

Versus

SECRETARY LOCAL GOVERNMENT and others ---Respondents

Writ Petition No. 2656-P of 2022, decided on 18th March, 2024.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Execution of an agreement and issuance of NOC for establishing a Vehicle Weighing Station on road---Authority competent to execute such an agreement---Determination---Petitioner sought direction to the Tehsil Municipal Administration (TMA) not to interfere in the business and functioning of such weighing station---Validity---Road was under the domain of Pakhtunkhwa Highways Authority as its construction, repair or maintenance was supposed to be conducted by the Provincial Government through Pakhtunkhwa Highways Authority and the TMA had nothing to do with same, thus, weighing station, if required for checking overweight vehicles, was also supposed to have been established by the Pakhtunkhwa Highways Authority itself or under authorization of the authority and if the road was being damaged due to overweight vehicles, this was not a cause of grievance for the petitioner or even of TMA---Pakhtunkhwa Highways Authority had never granted permission for the establishment of weighing station to the petitioner and no tax could be imposed on such vehicles except by a forum expressly authorized by a law---So far as collection of fee was concerned, existence of quid pro quo for collection of such fee was sine qua non---No services were being extended by TMA for construction or maintenance of the road, thus, it had got no concern with weight of the vehicles---Agreement executed by TMA and NOC granted by it were totally divested of any legal authority and same were declared to be without lawful authority, null and void---Petitioner had no claim against the respondents as he had been illegally extorting money from the people, thus, what had been done was treated as past and closed transaction and no action for recovery against petitioner or TMA on such score was taken---Respondents should be duty bound to protect the transporters and people of the locality from the burden of the unlawful levy---Past practice of collecting money from people on pickets and barricades or otherwise (even existing in the past)may not be allowed to be continued in future---Constitutional petition was dismissed, in circumstances.

Federation of Pakistan v. Durrani Ceramics 2014 SCMR 1630; Messrs Lucky Cement Factory Limited and others v. The Government of N.W.F.P. through Secretary Local Government and Rural Development Department, Peshawar and others 2013 SCMR 1511 and National Commission on Status of Women through Chairperson and others v. Government of Pakistan through Secretary Law and Justice and others PLD 2019 Supreme Court 218 rel.

Maqsood Ali for Petitioner.

Taskeenuddin Khattak, Additional Advocate General for Respondents.

Sikander Rashid for Respondents Nos. 6 and 7.

2025 C L C 1537

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar, J

AKBAR SHAH and others ---Petitioners

Versus

AYUB KHAN and others ---Respondents

C. R. No. 40-C of 2023, decided on 22nd October, 2024.

(a) Evidence Act (I of 1872)---

----Ss. 65 & 90---Qanun-e-Shahadat (10 of 1984), Arts. 76, 77, 100 & 114---Specific Relief Act (I of 1872), Ss. 42 & 54---Suit for declaration with perpetual injunction---Oral gift and execution of deed---Essential ingredient of gift---Proof---Absence of details of oral gift---Effect---Presumption attached to thirty years old documents---Scope---Non-production of original deed and witnesses thereof---Suit instituted by the respondents was decreed and the appeal preferred by the petitioners was dismissed---Validity---Thirty years old document when relied upon by the petitioners/defendants and refuted by the respondents/plaintiffs then petitioners were required to prove not only execution of the deed but the basic essential ingredients of gift along with the details of alienation of the property---Neither any documentary nor any oral evidence was available that when and at which particular place, the declaration of the gift i.e., offer and acceptance, was taken place or erstwhile predecessor had divested himself from the possession of the property, had been proved by the petitioners---Mere age of the document as of thirty years old was not sufficient to hold that it was executed and was deemed to be proved---Petitioners had alleged the alienation in two series and they were required to prove it but not even an iota of evidence was available to substantiate their contention except the production of documents which too had not been produced in original before the court---Law had provided a remedy for proving a document through secondary evidence which was an exception to general rule and only meant for the purpose to cater a genuine need and hardship, which could not be allowed in routine or without complying with the requirements mentioned under S. 65 of the Evidence Act of 1872 (Act) or Arts. 76 and 77 of Qanun-e-Shahadat, 1984 (Order)---Mere production of deed before the court especially when the validity thereof was questioned by the respondents, the benefit of S. 90 of the Act or that of Art.100 of the Order could not be extended in favor of the petitioners---Civil Revision was dismissed in limine, in circumstances.

Ch. Muhammad Shafi v. Shamim Khanum 2007 SCMR 838; Muhammad Naseem Fatima's case PLD 2005 SC 455; Muhammad Asghar and others v. Hakam Bibi through L.Rs. and others 2015 CLC 719 (Lahore) and Mst. Kalsoom Bibi and another v. Muhammad Arif and others 2005 SCMR 135 rel.

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

----S. 11, Explanation IV---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration with perpetual injunction---Maintainability---Constructive res judicata, principle of---Scope---Plea taken by the petitioners that in view of dismissal of an earlier suit as withdraw, in which the respondents/plaintiffs were parties, the latter suit was not maintainable---Validity---Although petitioners were the defendants in the earlier suit but neither the suit was in respect of the legacy claimed in the second suit, nor they had ever appeared before the court---Neither rights of the petitioners were in question nor they were resisting the earlier suit, thus, neither the controversy of the respondents in their suit was the subject matter of the earlier suit, nor it was resolved in any manner, thus, neither the estoppel could be alleged against the respondents nor res judicata could be pressed into service but since the petitioners being defendants in earlier suit had taken a clear stance but failed in proving the same, thus, the matter was properly adjudicated upon by the court of competent jurisdiction against them and their cross objections in view of the dismissal of the suit as withdrawn had become infructuous, which, they could not allege in the latter suit of the respondents as there was no decree and that too in respect of the document/deed alleged by the petitioners---Civil Revision was dismissed in limine, in circumstances.

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

----O. VI, R. 1---Pleadings---Scope---Mere pleadings unless corroborated by qualitative evidence could not be based for the decision of the lis nor the evidence without pleadings could provide any benefit---Mere pleadings of a party cannot be treated as substitute for proof---No litigant can be allowed to build and prove his case beyond the scope of his pleadings.

Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21; Inayat Ali Shah v. Anwar Hussain 1995 MLD 1714; Pir Wali Khan v. Niaz Badshah 2013 MLD 1106; Mir Laiq Khan v. Sarfraz Jehan 2013 MLD 1449; Mst. Ghazala Yasmeen v. Sarfraz Khan Durrani 2013 CLC 1406; Messrs Choudhary Brothers Ltd., Sialkot v. Jaranwala Central Co-operative Bank Ltd., Jaranwala 1968 SCMR 804 and Muhammad Yaqoob v. Mst. Sardaran Bibi and others PLD 2020 SC 338 rel.

(d) Qanun-e-Shahadat (10 of 1984)---

----Art. 114---Principle of estoppel---Scope---Principle of estoppel is used as a shield and not as a sword.

Abdul Wali Khan for Petitioners.

Nemo for Respondents (in motion).

2025 C L C 1571

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar, J

Mst. BIBI SALIMA alias Katkai ---Petitioner

Versus

HASAN BAHADAR and others ---Respondents

C.R. No. 508-M of 2023, decided on 18th October, 2024.

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

----O. VI, R. 17---Amendment in the pleadings---Scope---Joint written statement---Absence of stance of one of the defendants---Effect---Presentation of separate amended written statement---Scope---Application for amendment in the written statement was declined by the courts below concurrently---Validity---There was a joint written statement for the defendants including the petitioner, thus, no details for petitioner were specifically mentioned therein except the details of legal heirs of the erstwhile predecessor-in-interest of the parties, however, the significance aspect was the denial of the defendants including the petitioner, thus, the filing of written statement could not be termed as repelling to the written statement already filed by the defendants---Declining the request of the petitioner for submission of her written statement (amended) would amount to depriving her of placing her actual stance before the court and it would negate the provisions of O. VI R. 17, C.P.C, which was not permissible and the court would be unable to decide the lis in accordance with law unless the written statement is placed before the court---Viewing the joint written statement where no specification of the clear stance, cancellation of power of attorney, appointment of fresh attorney, principle of amendment, determination of real controversy, the petitioner was entitled for submission of separate written statement---Courts below were required to decide the application of the petitioner with proper application of law and mind, however, applications of the petitioner were not decided through proper application of mind and law had not been applied in its true perspective as the decision assailed in the civil revision was not the mandate of law, as such, that could not be sustained---Civil Revision was allowed, in circumstances.

The United Bank Limited through its Chief Executive and others v. Imran Ghani and others W.P. No. 158-P/2024; 2020 CLC 340; 1999 MLD 2968; 1992 CLC 196; Mumtaz Baig and 5 others v. Sarfraz Baig 2003 CLC 713; Alamzeb and others v. Mian Masaud and others C.R. No. 925 of 2006 and Mumtaz Baig and 5 others v. Sarfraz Baig 2003 CLC 713 rel.

(b) Contract Act (IX of 1872)---

----S. 201---Powers of Attorney Act (VII of 1882), S. 2---Power of attorney---Powers of principal---Scope---It is the choice of the principal to delegate his/her powers for his/her representation in legal proceedings to anyone and the principal may cancel the powers bestowed upon the attorney---Powers of the principal cannot be restricted either by the act of the court or by any other implication.

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

----S. 115---Suo motu revisional jurisdiction of High Court---Scope---General powers of High Court in exercise of its jurisdiction under S. 115, C.P.C.---Limitations---Scope---General powers under S. 115, C.P.C., have no nexus with limitation and cannot be curtailed or restricted by the limitation---Such power is exercisable where the High Court itself found any error of the nature provided in S. 115, C.P.C., without there being any application by aggrieved person---High Court in its revisional jurisdiction can take cognizance for correction of illegalities and irregularities in judgments and orders of subordinate court as suo motu and no bar of limitation can be placed against suo motu jurisdiction of revisional court---Such powers of the Courts can be ascertained from the plain language used in Section 115 of C.P.C. and the intention of the legislature, whereas exercise of this jurisdiction if allowed to go into the spiral of technicalities and restrictions of limitation, the very purpose behind conferring such jurisdiction would be defeated.

Province of Punjab through District Officer, Revenue Rawalpindi and others v. Muhammad Sarwar 2014 SCMR 1358 and Banori v. Jillani PLD 2010 SC 1186 rel.

Qazi Ishaque for Petitioner.

Saifullah Mangol and Mumtaz Ali Qazi for Respondents.

2025 C L C 1652

[Peshawar]

Before Wiqar Ahmad, J

ASIF ULLAH and others ---Petitioners

Versus

Mst. GULZARA BIBI and others ---Respondents

Civil Revision No. 725-P of 2020, decided on 26th July, 2024.

(a) Partition Act (IV of 1893)---

----S. 4---Civil Procedure Code (V of 1908), S. 115 & O.IX, R. 13---Suit for partition of dwelling house---Ex-parte decree, maintaining of---Suit was filed by respondent / plaintiff seeking partition of dwelling housing to the extent of her share---Suit was decreed ex-parte and application filed by petitioners / defendants was dismissed concurrently---Validity---Ex-parte decree could not be treated as void---Respondent / plaintiff in ex-parte decree was relying on registered deed in favour of predecessor-in-interest from whom she had been claiming accrual of right by inheritance---In written statement petitioners / defendants had relied on purchase of rights in immovable property through unregistered deed and the unregistered deed could not be proved as the petitioners / defendants did not produce any evidence in support thereof before Trial Court---Respondent / plaintiff through ex-parte evidence of had sufficiently established the case in her favour---There was no rebuttal, therefore, judgment and decree was fully justified on the basis of ex-parte evidence present before Trial Court---High Court in exercise of revisional jurisdiction declined to interfere in the orders passed by two Courts below---Revision was dismissed, in circumstances.

Syed Arshad Ali v. Said Ali 2018 YLR 779; Shah Qaimoos Khan and 4 others v. Faizullah Khan and another 2020 CLC 111; Messrs Rehman Weaving Factory (Regd) Bahawalnagar v. Industrial Development Bank of Pakistan PLD 1981 SC 21; Water and Power Development Authority through Chairman and 3 others v. Mir Khan Muhammad Khan Jamali and another 2006 CLC 92; Honda Atlas Cars (Pakistan) Ltd. v. Honda Sarhad (Pvt) Ltd. and others 2005 SCMR 609; 2008 SCMR 287; Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631; Kiramat Khan v. IG, Frontier Corps and others 2023 SCMR 866; Chief Executive Officer NPGL, GENCO-III,TPS, Muzafargarrah v. Khalid Umar Tariq Imran and others 2024 SCMR 518 and Moon Enterprises CNG Station, Rawalpindi v. Sui Northern Gas Pipelines Limited through General Manager Rawalpindi and another 2020 SCMR 300 ref.

(b) Administration of justice---

----Delaying tactics---Abuse of process of law---Remedy---Court of law can counter deliberate attempts for prolonging delays and causing abuse of process of a Court, in two ways; first to avoid unnecessary and undue leniency in the matter of setting aside those orders where the Court reaches a conclusion that the other party has deliberately absented themselves or defaulted in performance of some activities, required for further progress of suit, without any reasonable cause; secondly, when the Court is of the opinion that a party has defaulted in its duty vis-a-viz progress of suit but the Court considers that interest of justice would be served by affording further chances, then the Court should levy cost which should be sufficient for fully compensating the other party for the time and money spent by it in procuring legal assistance as well as the inconvenience caused to it due to delay in the proceedings---Imposing proper and reasonable amount of cost in such cases would not only ensure justice to affected parties but would also be working as deterrence for the party, which deliberately and maliciously employ delaying tactics, which causes undue delay in litigation---Genuine cases where a party is prevented by sufficient cause in attending to a step in litigation should however be treated differently and in such cases lenient approach should be adopted.

Muhammad Amin Khattak Lachi for Petitioners.

Haji Zahir Shah for Respondents.

2025 C L C 1712

[Peshawar]

Before Ishtiaq Ibrahim, CJ and Wiqar Ahmad, J

HABIB SULTAN ---Petitioner

Versus

MUHAMMAD SARTAJ and others ---Respondents

Writ Petition No. 5204-P of 2024, decided on 7th November, 2024.

(a) National Database and Registration Authority Ordinance (VIII of 2000)---

----S. 18---Civil Procedure Code (V of 1908), O.XXI---Computerized National Identity Card, blocking of---Jurisdiction of Executing Court---Scope---Executing Court had issued orders for blocking CNIC of the petitioner, who had approached High Court without approaching the Executing Court for unblocking of his CNIC---Order of Executing Court was not without authority in view of O.XXI, C.P.C.---Constitutional petition was dismissed, in circumstances.

PLD 2022 Lah. 756 Distinguished.

(b) Constitution of Pakistan---

----Arts. 5 & 199---Constitutional petition---Maintainability---Conduct of the petitioner, considering of---Non-appearance before the Executing Court---Effect---Blocking of CNIC---Validity---High Court while entertaining writ petition may also take into consideration conduct of the petitioner---Petitioner was avoiding his appearance before the Executing Court, which was his inviolable obligation under Art. 5 of the Constitution, thus, his approach before the High Court by filing writ petition could not be accepted to be in good faith---Petitioner failed to make out a case for interference of High Court in exercise of its constitutional jurisdiction---Constitutional Petition was dismissed in limine.

Muhammad Arif v. Uzma Afzal and others 2011 SCMR 374; Dr. Azim Ur Rehman Khan MEO v. Government of Sindh and another 2004 SCMR 1299 and Aziz ur Rehman Ch v. M. Nasiruddin and others PLD 1965 SC 236 rel.

Malik Anwar Ul Haq for Petitioner.

Nemo for Respondents.

2025 C L C 87

[Balochistan]

Before Zaheer-ud-Din Kakar and Gul Hassan Tareen, JJ

FAIZULLAH---Petitioner

Versus

SENIOR MEMBER BOARD OF REVENUE BALOCHISTAN, QUETTA and 5 others---Respondents

Regular First Appeal No.34 of 2021, decided on 5th September, 2024.

Specific Relief Act (I of 1877)---

----Ss.39, 42 & 54---Contract Act (IX of 1872), S.25(1)(2)(3)---Government property---Dispute over the renewable lease hold rights---Execution of an unregistered lease deed without any consideration and without having any lease hold rights---Effect---Locus standi of the appellant to institute the suit---Property was originally leased out to a private limited company (lessee) by the Deputy Commissioner, Quetta without approval of Government---Lessee sold out all its shares and fixtures on the property to respondent, who while acting as attorney of the company/lessee further executed a deed of transfer and assignment qua the property with possession in favour of the appellant---Instead of renewal of lease, Revenue Department leased out the property for establishment of Government offices---Contention of the appellant was that respondent was the lessee/sub-lessee of the property, thus, the appellant had locus standi to institute suit on the strength of deed of transfer and assignment executed by respondent in his favour---Validity---Deputy Commissioner, Quetta, without approval in advance by the Board of Revenue, Government of Balochistan, was not authorized to lease out the property of the Government of Balochistan, therefore, lease deed had no legal effect---Unregistered lease deed was not a title document and the same was considered to be invalid---Respondent was not the leaseholder of the property, therefore, she could not have transferred the leasehold rights of the property to the appellant---Vendor/transferor cannot pass on to vendee/transferee anything better than he himself has, therefore, it is transferee who has to exercise maximum care before entering into a transaction---Title of a transferee is dependent upon the strength or weakness of the title of his transferor and transferee has to pursue him for any loss suffered---Agreement made without consideration is void under S.25 of the Contract Act, 1872, and in the present case the deed of transfer and assignment did not fall within the ambit of any one of the exceptions provided in subsections (1), (2) & (3) of S.25---Deed of transfer and assignment did not state any stipulation with regard to the amount of consideration paid or promised or part paid and part promised by the appellant to the respondent, therefore, the same was not enforceable in a suit for specific performance instituted by the appellant---Trial Court had rightly held that plaintiff had no locus standi to institute the suit---Lease was renewable after completion of its term, however, the lease was not executed by the Deputy Commissioner, Quetta, with the approval of the Board of Revenue Government of Balochistan, thus, this clause had no legal effect---Regular First Appeal was dismissed, in circumstances.

Tariq Ali Tahir and Barkhurdar Khan for Appellant.

Changaiz Dashti, Assistant Advocate General for Respondents Nos.1, 2, 3, 4 and 6.

Ms. Shehnaz Rana for Respondent No.5.

2025 C L C 130

[Balochistan]

Before Rozi Khan Barrech, J

Mir SHAMS UD DIN---Petitioner

Versus

Mir ZIA UD DIN and 5 others---Respondents

Civil Revision No.510 of 2024, decided on 12th September, 2024.

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

----S.24---General power of transfer and withdrawal of suit---Scope---Bias in a judge, proof of---Petitioner sought transfer of suits on the ground of bias of the Presiding Officer, seized with the trial thereof and because alleged utterance of other side that they would get the relief from the Trial Court---Validity---Petitioner had failed to establish the bias in the judge because utterance of the other side that they would get favour from the Court did not constitute a sufficient ground for transfer of the case from one Court to another---Allegation of bias of the Trial Court raised by the petitioner was not supported by any sort of evidence as in order to demonstrate bias against a judge it must be established that some act or expression of a judge visible on the ground would adversely affect the case---Mere assumption and apprehension cannot be entertained as a piece of tangible evidence; therefore, the bald statement could not be made the basis for the transfer of case, and the case would not be transferred as a matter of routine or at the whims of the parties---Administration of justice requires that litigants should have confidence in the judicial system and an application can be filed for transfer of a case when a party has sufficient reasons, grounds, and evidence in his/her possession regarding pecuniary interest and bias of judicial officer, which elements were not available in the case in hand---Civil revision was dismissed, in circumstances.

(b) Administration of justice---

----Bias in a judge---Kinds of such bias enumerated.

Pakistan Newspaper Society and others v. Federation of Pakistan PLD 2012 SC 1 rel.

Sheikh Muhammad Ali for Petitioner.

2025 C L C 173

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Iqbal Ahmed Kasi, JJ

KAMAL ASHRAF and others---Petitioners

Versus

ATIQUE-UR-REHMAN and others---Respondents

C.P. No.1131 of 2021, decided on 26th July, 2024.

Civil Procedure Code (V of 1908)---

----O. III, R. 1 & O. VI, R.14---Appearance in court by recognized agents or pleaders---Power of an Advocate to sign pleadings/replications on behalf of his client---Scope---Advocate representing the petitioners/plaintiffs before the Trial Court in a suit for declaration with permanent injunction filed replication on behalf of petitioners only under his signatures and without being signed by the petitioners---Respondents filed application for placing on record the same replication in another civil suit---Petitioners filed application challenging the filing of replication by their previous counsel without being signed by the petitioners, which was dismissed by both the courts below---Validity---Order III, Rule 1 & O. VI, R. 14, C.P.C., mandate that certain pleadings, including replications, must be signed by the party or their authorized agent---Lawyers are not supposed to replace their client(s) for any substantial relief, which their clients want on the basis of fact from the Court---Lawyer(s) cannot swear affidavit of facts relating to the stance of their client(s) in which they/he need an order from the Court of law, so felt by their/his client---Facts and circumstances can only be in the personal knowledge of their client(s)--When the petition was not signed by the petitioners, it was difficult to believe that the petition had been filed under the instructions given by the petitioners---Lawyers cannot file suit and other miscellaneous petitions solely on the strength of power of attorney---Constitution petition was allowed, in circumstances.

Flight Lt. Anwarul Hasan Siddiqui v. Family Judge, Court No.III, Karachi and 2 others PLD 1980 Kar. 477 and Secretary Communication and Works Department Government of Balochistan and others v. Dad Bakhsh and another 2013 CLC 343 rel.

Naimatullah Achakzai for Petitioners.

Manzoor Ahmed Shah for Respondents Nos.1-A to 1-J and 2.

Shai Haq Baloch, Additional Advocate General for the State.

2025 C L C 236

[Balochistan]

Before Abdullah Baloch, J

MUHAMMAD ALI and others ---Petitioners

Versus

SECRETARY BOARD OF REVENUE, GOVT. OF BALOCHISTAN, BALOCHISTAN SECRETARIAT QUETTA and 2 others ---Respondents

Civil Revision No. 20 of 2021, decided on 31st August, 2023.

Specific Relief Act (I of 1877)---

----Ss. 39, 42 & 54---Balochistan Land Revenue Act (XVII of 1967), S. 53---Constitution of Pakistan, Art. 10A---Suit for cancellation of order, declaration and injunction---Fair trial and due process---Correction of entry in Record of Rights---Concurrent findings of facts by two Courts below---Petitioner/plaintiff claimed to be owner in possession of suit land whereon he had constructed a building---Grievance of petitioner/plaintiff was that without his knowledge the authorities transferred suit land in the name of Provincial Government---Suit and appeal were concurrently dismissed by Trial Court and Lower Appellate Court---Validity---Lower Appellate Court misunderstood the provision of S.53 of Balochistan Land Revenue Act, 1967, which had itself provided relief to an aggrieved person, who sought declaration of title to suit land as its exclusive owner with consequential relief---Such provision did not debar aggrieved party from approaching Civil Court for claiming his ownership over suit land by way of inheritance---Entry in revenue record was not in itself proof of title in favour of the party in whose favour such entry existed---Entitlement/ownership was to be proved by such party independently and for such purpose appropriate forum available was Civil Court, which was Court of ultimate jurisdiction--- In view of provision of Art. 10A of the Constitution, a person is entitled for fair trial and due process---High Court set aside jurisdiction passed by Lower Appellate Court and matter was remanded for decision afresh on appeal filed by petitioner/plaintiff---Revision was allowed accordingly.

Ahsan Ali through L.Rs. and others v. Province of Sindh through District Coordination Officer Thatta and others 2007 MLD 884 and Muhammad Siddique and another v. Mst. Bano and 8 others 2004 YLR 319 ref.

Farooq Rasheed for Petitioners.

Saifullah Sanjarani, Assistant Advocate General for Respondents.

2025 C L C 253

[Balochistan]

Before Iqbal Ahmed Kasi, J

DAD MUHAMMAD and others ---Petitioners

Versus

NATIONAL DATABASE and REGISTRATION AUTHORITY through Director General NADRA Provincial Headquarter Zarghoon Road, Quetta ---Respondent

Civil Revision No. 88 of 2023, decided on 18th September, 2023.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---National Database Registration Authority Ordinance (VIII of 2000), S. 47---Notification No.8/37/20)6-NADRA, dated 19-04-2017---Suit for declaration and injunction---Nationality---Determination---Non-issuance of Computerized National Identity Cards (CNIC)---Petitioners/plaintiffs claimed to be Pakistani nationals and were aggrieved of non-issuance of CNICs---Validity---Petitioners/plaintiffs had been recorded as owners of immovable properties situated in district Quetta since their forefathers i.e. of year 1965-1966---Petitioners/plaintiffs produced documents prior to year 1979, thus they bonafidely proved to be citizens of Pakistan---Petitioners/plaintiffs were entitled to issuance of CNICs in their favour on the basis of Notification No.8/37/20)6-NADRA, dated 19-04-2017---Fundamental rights guaranteed under the Constitution would be rendered meaningless if a person was stripped of citizenship---This had a devastating impact on human lives---Person once registered as a citizen could not be deprived of citizenship otherwise than as was provided under law---High Court set aside judgment and decree passed by Lower Appellate Court and upheld that of Trial Court---Revision was allowed accordingly.

Syed Najab-ud-Din Agha and Abdul Shakoor Baloch for Petitioners.

Zubair Naseem Khawaja, Law Officer, NADRA for Respondent.

2025 C L C 276

[Balochistan]

Before Muhammad Ejaz Swati and Nazeer Ahmed Langove, JJ

ALI AKBAR ---Petitioner

Versus

Mst. NASEEM and 2 others ---Respondents

Constitution Petition No.711 of 2023, decided on 29th August, 2023.

(a) Oaths Act (X of 1873)---

----S.9---Family Courts Act (XXXV of 1964), Ss. 5 Sched.12---Maintenance allowance of minor girls---Enforcement of decree---Father (judgment-debtor), responsibility of---Scope---Denial of parentage---Scope---Judgment-debtor filed an application before the Executing/Family Court praying to discharge him from maintenance of lady/decree-holder's two minor daughters (also decree-holders)---Executing Court dismissed said application which judgment was maintained---Judgment-debtor filed a constitutional petition---Claim/plea of the petitioner (judgment-debtor) was that the minor girls were not his daughters---Validity---Record revealed that the plaintiff/respondent applied under section 9 of the Oaths Act with the prayer that if the petitioner on Oath refused the parentage of the minors girls, she would withdraw the claim of their maintenance, and if he refused, then she was ready to take Oath---Executing Court (Family Judge) allowed the application---Resultantly the petitioner recorded his statement on Oath, which was ambiguous and self-contradictory---Executing Court directed the petitioner to comply with the decree in letter and spirit---Petitioner failed to point out any illegality, irregularity, or non-observance of the mandatory law provisions in the proceedings, warranting interference by the High Court---Instead, the institution of the constitutional petition was just an attempt to cause delay, and deprive the daughters of their legal and Islamic rights---Constitutional petition, filed by judgment-debtor/father, was dismissed in limine, in circumstances.

(b) Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched. 12---Maintenance allowance of minor girls---Enforcement of decree---Father (judgment-debtor), responsibility of---Scope---Denial of parentage---Scope---Judgment-debtor filed an application before the Executing/Family Court praying to discharge him from maintenance of lady/decree-holder's two minor daughters (also decree-holders)---Executing Court dismissed said application, which judgment was maintained---Judgment-debtor filed a constitutional petition---Claim/plea of the petitioner (judgment-debtor) was that the minor girls were not his daughters---Validity---Record showed that after the divorce between the petitioner and respondent, the latter filed a suit for recovery of the minor's maintenance allowance against the petitioner, which was decreed and later attained finality---Respondent (decree-holder) applied for the execution of the decree, and for the first time, the petitioner (judgment-debtor) came up with the plea that two minor girls were not his daughters and prayed for his discharge from their maintenance allowance---Record further showed that the petitioner had filed an application under S.25 of the Guardians and Wards Act, 1890, for custody of six minors, including said two minor girls, which was dismissed, however, he was allowed to have meetings with all the minors (including said two minor girls) once a month---Thus, petitioner's plea was self-contradictory; in his (guardian) application, he applied for custody of the minors, including said two minor girls, however, suddenly, it was revealed to him that the said minors were not his daughters---Such conduct of the father was unfortunate and an attempt to escape his responsibility to maintain his children wherever they lived---Petitioner failed to point out any illegality, irregularity, or non-observance of the mandatory law provisions in the proceedings, warranting interference by the High Court---Institution of the constitutional petition was just an attempt to cause delay, and deprive the daughters of their legal and Islamic rights---Constitutional petition, filed by judgment-debtor/father was dismissed in limine, in circumstances.

(c) Family Courts Act (XXXV of 1964)---

----S. 5, Sched---Maintenance allowance of minors---Father, responsibility of---Scope---Definition of maintenance, which includes food, clothing, and lodging, is neither conclusive nor exhaustive and has a broader connotation and should be given an extended meaning---It is not a benefit but is an undeniable legal obligation of a father---Father cannot be absolved of his prime duty to maintain children, irrespective of the fact that the minors are living with their mother (respondent).

Moula Dad Barech for Petitioner.

Shoaib Ali for Respondent No.1.

2025 C L C 297

[Balochistan]

Before Gul Hassan Tareen, J

MUHAMMAD ALAM---Petitioner

Versus

Malik ZAHOOR AHMED and another---Respondents

Civil Revisions Nos.759 and 760 of 2022, decided on 27th September, 2023.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Civil Procedure Code (V of 1908), Ss. 24, 35A & 115---Suit for declaration and injunction---Revisional jurisdiction of High Court---Mala fide---Delaying tactics---Exemplary cost, imposing of---Petitioner/defendant was aggrieved of rejecting of his application by Lower Appellate Court for transfer of case from one Court to another---Validity---Since date of service of summons on 22-10-2012, by Trial Court, petitioner/defendant had been lingering on the civil suit of respondent/plaintiff for eleven years on one baseless pretext or the other---Suit was at trial stage and it would have to travel across appellate and revisional stages---No litigant could be allowed to make applications for adjournments, transfer of civil suit from one Court to another and frequent substitution of counsel---High Court showed serious concern that if such practice was not curbed by applying strict measures, the prevailing judicial system would not dispense justice, which was indeed it's constitutional and legal duty---High Court declined to interfere in the matter and imposed exemplary costs upon petitioner/defendant---Revision was dismissed, in circumstances.

Sameer Ehsan Ullah Makhzan and 3 others v. Muhammad Asif Zaman and 3 others PLD 1993 Lahore 554 rel.

Petitioner in person.

Mubashir Hassan Shinwari for Respondent No.1.

Allauddin Kakar, Assistant Advocate General for Respondent No.2.

2025 C L C 404

[Balochistan (Sibi Bench)]

Before Gul Hassan Tareen, J

MUHAMMAD RAFIQUE and others ---Petitioners/Defendents

Versus

NAWAB ARBAB ABDUL ZAHIR KHAN and others ---Respondents/Plaintiffs

Civil Revision Petition No.(s)31 of 2024, decided on 28th October, 2024.

Civil Procedure Code (V of 1908)---

----O.XLI, Rr.25 & 26---Dispute over ownership of land---Omission to frame and try the issue by the Trial Court---Remand order by the appellate court without itself framing the issue---Effect---Procedural error, rectification of---Suit was instituted by the respondents/plaintiffs being lessees claiming ownership over the disputed land of constructed shops, whereas, petitioners/defendants claimed that disputed land was owned by the Municipal Committee---Suit was decreed by the Trial Court, however, upon appeal the matter was remanded by the Appellate Court to the Trial Court for framing a specific issue and decision thereon afresh---Validity---Appellate Court set-aside the judgment and decree assailed in the appeal and memorandum of appeal along with record was consigned to the record overlooking Rr.25 & 26 of O.XLI, C.P.C., as the Appellate Court should have itself framed an issue, directed for issuance of local commission and for further evidence referred the issue for trial and should have fixed time in which either party would present memorandum of objections to the findings of the court of first instance on the issues so referred, thus, the findings of the Appellate Court required correction---High Court in exercise of its revisional jurisdiction partially allowed the civil revision with certain modifications in the order of the appellate court in accordance with O.XLI, Rr.25 & 26, C.P.C. with the direction that Trial Court should return the evidence/report to the Appellate Court with its findings on the issue and reasons therefor within thirty days in the pending appeal before the Appellate Court, which on return of findings and after presentation of objections by either party, would proceed to determine the appeal within fifteen days.

Inayatullah Khan Marghzani for Petitioners.

Abdul Zahir Kakar for Respondents Nos. 1 to 3.

Faisal Mengal, Assistant Advocate General for Respondents Nos. 4 and 5.

2025 C L C 475

[Balochistan]

Before Muhammad Ejaz Swati, and Nazeer Ahmed Langove, JJ

ASMATULLAH ---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN, through Chief Secretary and others---Respondents

Constitutional Petitions Nos. 1926 of 2021 and 307 of 2022, decided on 23rd October, 2023.

Allotment---

----Allotted property being utilized for purposes other than the purpose for which it was allotted---Effect---Petitioners (Mashakhors of Fruit and Vegetable Market, Hazar Ganji, Quetta) filed constitutional petition contending that they (Mashakhors) had been compelled to carry out their business only on two acres of land out of twenty-three (23) acres specified by competent authority for establishment of a venue for the business of fruit and vegetable etc. while the rest of the land was illegally occupied by Commission Agents (Private Respondents)---Validity---Record (furnished by official respondents) revealed that petitioners/Mashakhors were allotted twenty-three (23) acres, but they allegedly sold and rented out their allotted land to others and continued their unwarranted possession on the platform made for fruit and vegetable auction by setting their camps illegally and had utilized the land for purposes other than the purpose for which it was allocated---However, in any case, no person(s) including the petitioners could be allowed to encroach upon the property of others in the garb of their business---High Court did not appreciate such a trend at all---Constitutional petitions, being devoid of merit, were dismissed, in circumstances.

Aminullah Amin for Petitioner.

Munir Ahmed Sikandar, Additional Advocate General for Official Respondents.

Syed Taqveem Shah and Inayat Khan Kasi for Respondent (I.G.F.C.).

Jahangir Khan Mandokhail and Abdul Musawir for Respondents (President and General Secretary, Commission Agents)

Ali Jan Tarakai for Respondents (President and General Secretary, All Balochistan Arthian Fruit and Vegetable Association).

2025 C L C 558

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Shaukat Ali Rakhshani, JJ

Bibi PATO and another ---Petitioners

Versus

GOVERNMENT OF PAKISTAN, through Secretary Ministry of Interior, Islamabad and 2 others ---Respondents

Civil Petition No. 1161 of 2024, decided on 30th September, 2024.

National Database and Registration Authority Ordinance (VIII of 2000)---

----S. 18---Computerized National Identity Card (CNIC), non-issuance of---Eligibility of petitioner for issuance of CNIC, determination of---Non-issuance of new CNIC after correction of date of birth as approved by the National Database and Registration Authority (NADRA) respondent-authority owing to unrealistic variation between date of birth of petitioners by NADRA Zonal Board and approved by the respondent, and non-availability of evidence prior to 1978 in view of notification of Ministry of Interior, Government of Pakistan---Validity---There was no allegation against the petitioners of being ineligible, or obtaining more than one cards, or showing obliterated particulars, or tampering with the card or the card being forged---Petitioners were issued CNIC by the concerned officials of NADRA after due compliance of the provisions of Ordinance, 2000 and rules framed thereunder---Conditions enumerated through notification of Ministry of Interior might have application in certain cases, but in petitioners' case, it had no applicability---Connotation "reason to believe" mentioned in S.18 of the Ordinance 2000 demonstrates that if there is reason to believe that the card has been obtained by a person who is not eligible or has tampered or obtained the CNIC by showing obliterated particulars or the card is found forged, his card shall be canceled, but in order to establish such allegations, NADRA must substantiate it through tangible evidence by undertaking exercise as contemplated under S.18 of the Ordinance, otherwise, genuineness and authenticity of CNIC would be attached therewith---Petitioners were issued CNICs with all due care and cautions, while adhering to the provisions of Ordinance, 2000, and rules framed thereunder and SOPs enacted for the purpose of issuance of CNIC, unless contrary was proved by NADRA, which had not been done---Previous CNICs were also issued to the petitioners by NADRA, therefore, no adverse presumption could be inferred that officials of the department did not apply requisite law and mind, thus, petitioners had sufficient documents to prove their entitlement to get issued and renew their CNICs, more particularly in absence of proof of any wrong doing by NADRA on the part of petitioners---Constitution Petition was allowed, in circumstances.

Dr. Pervaiz Khan Khilji for Petitioners.

Zubair Naseem Khawaja for Respondents Nos. 2 and 3.

2025 C L C 577

[Balochistan]

Before Sardar Ahmed Haleemi, J

SAFINA and another ---Petitioners

Versus

JAWAHIR BEGUM and 6 others ---Respondents

Civil Revision No. 439 of 2022, decided on 10th October, 2024.

Islamic Law---

----Inheritance---Share in the legacy of deceased brother who left behind a daughter and wife (petitioners)---Scope---Predecessor-in-interest of the respondents being the surviving legal heir of his deceased brother instituted the suit against the petitioners, who on the basis of a false and fabricated Sharai fatwa got mutated the properties left by the deceased in their names and further sold out a portion to third person (respondent No.6) by depriving respondents of their right of inheritance---Suit was dismissed by the Trial Court, however, the Appellate Court accepted the appeal of the respondents and decreed the suit---Contention of the petitioners was that they being legal and lawful heirs of deceased were the only ones entitled to the legacy of the deceased and predecessor of respondents being distant kindred was not entitled to legacy of his deceased brother---Validity---According to D.F. Mullah's principle of Mohammadan Law under Para-63, the wife and daughter (petitioners) were "sharers" and were entitled to "one-eighth share" and "one-half" of inheritance, respectively---Brother of the deceased i.e. predecessor of respondents came within the category of residuaries, which was in Para-65 of D.F. Mullah's principle of Mohammadan Law---After payment of the deceased's funeral expenses, and debt (if any), the petitioners being widow and daughter of the deceased were sharers and were entitled as per their respective shares, while predecessor of respondents being brother came within the category of residuaries, thus was entitled to a share in the legacy of his deceased brother---Petitioners had sold out a piece of land from the rest of the property through a sale deed in favour of another respondent, which was also not disputed by the parties---As the share of predecessor of respondents would not be affected, thus, the Appellate Court's findings to the extent of cancellation of registered sale deed were held to be legally incorrect, however, the findings of the Appellate Court to the extent of determination of shares of the parties were held to be correct---Civil revision was dismissed, in circumstances.

Sohail Ahmed Rajput for Petitioners.

Muhammad Sharif for Respondents Nos. 1 to 5.

Javed Iqbal Kasi for Respondent No. 6.

Shahid Baloch, Additional Advocate General for Respondents Nos. 7 and 8.

2025 C L C 679

[Balochistan]

Before Muhammad Hashim Khan Kakar,CJ and Muhammad Aamir Nawaz Rana, J

HINA GUL NAZ and others ---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN, through Secretary Local Government Civil Secretariat, Quetta and another---Respondents

C.P. No. 1684 of 2024, decided on 22nd November, 2024.

Balochistan Cultural Heritage Preservation Act (X of 2010)---

----S. 2(g)---Balochistan Antiquities Act (XXIV of 2014), S. 2(d)---Heritage site---Lease, renewal of---Vested right---Petitioner/tenant of Metropolitan Corporation sought renewal of lease deed of "Baldia Café" on the rent already fixed---Validity---Petitioner/tenant offered far less than the actual market rates than those in bids received for the property in question---Highest bid in such regard was more than one million Rupees---Lease of petitioner/tenant on the basis of long standing possession could not be renewed at nominal rates, as the same would amount to huge loss to the exchequer of respondent/Corporation, which was already facing financial crunch in order to meet the daily expenses to run the Corporation---Petitioner/tenant was entitled for right of first refusal to the highest bid received for the property in question---In case petitioner/tenant would accept the amount of rent offered by the highest bidder, then authorities should consider the offer of petitioner/tenant in accordance with law---Authorities imposed restriction on alterations to the basic structure of the café, as it was a heritage site and any conversion into plaza or high rise building would lead to congestion in city---Constitutional petition was dismissed accordingly.

Kamil Khan Mumtaz v. Province of Punjab PLD 2016 Lahore 699 and Heysons Commercial and Industrial Corporation Ltd. v. Trustees of the Port of Karachi 1987 CLC 591 ref.

Muhammad Akbar Shah for Petitioners.

Zahoor Ahmed Baloch, Additional Advocate General (AAG) assisted by Muhammad Hamza Shafqaat, Commissioner, Quetta for Respondent No.1.

Muhammad Bilal Mohsin for Respondent No.2.

2025 C L C 745

[Balochistan]

Before Muhammad Aamir Nawaz Rana, J

WAHID BAKHSH and 4 others ---Appellants

Versus

BALOCHISTAN AWAMI PARTY through Representative/ Secretary Coordination and 2 others ---Respondents

Election Appeal (T) No. 01 of 2024, decided on 31st May, 2024.

(a) Balochistan Local Government Act (V of 2010) [as amended by the Balochistan Local Government (Amendment) Act, 2023]---

----S. 24-A---Constitution of Pakistan, Art. 10-A---Chairman and Members of Municipal Committee---Defection---Complaint not filed by the Party Head---Competency of---Procedural requirement, non-fulfillment of---Violation of fundamental right---Effect---Non-observance of due process---Disqualification to hold seats of Chairman and Members of Municipal Committee on the basis of defection---Held, that Party Head had to make declaration in writing in case any member had committed defection on the grounds enumerated in S. 24-A of the Balochistan Local Government Act, 2010---Party Head had to forward the copy of the declaration to the Presiding Officer and the Secretary Local Government and Rural Development Balochistan and in the same manner the Party Head had to forward the copy of such declaration to the member concerned---Apart from that it had also been stipulated that the Party Head before making the declaration had to provide an opportunity to show cause to the member guilty of defection as to why such declaration might not be made against him---No declaration in the case of the appellants was made by the Party Head rather the complaint was filed by the Secretary Coordination, whereas the alleged declaration was made by Secretary General of Balochistan Awami Party---Since there was no declaration in this case by the Party Head, thus, the complaint filed by the Secretary Coordination allegedly on the strength of letter written by Secretary General was not competent being contrary to the mandatory provision of S. 24-A of the Act---Election Appeal was allowed, in circumstances, by setting aside the impugned order of disqualification and dismissing the complaint filed by the Secretary Coordination.

(b) Administration of justice---

----Procedural requirements---Scope---If law requires anything to be done in a particular manner, then it has to be done in the same manner or not at all, and no exception in this regard can be given.

Shabir Ahmed Sherani, Muhammad Bilal Mohsin, Khalil Ahmed Khatak and Farooq Ali Mastoi for Appellants.

Jam Saka Dashti, Syed Ayaz Zahoor and Aster Mehak for Respondent No.1.

Muhammad Ali Rakhshani, Additional Advocate General assisted by Muhammad Raees, Assistannt Director (Law), Election Commission of Pakistan (ECP) for Respondents Nos. 2 and 3..

2025 C L C 769

[Balochistan]

Before Muhammad Hashim Khan Kakar, CJ and Muhammad Aamir Nawaz Rana, J

Messrs PAKISTAN SHIP BREAKER'S ASSOCIATION and others ---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN, through Secretary Ministry of Planning and Development, Quetta and 2 others ---Respondents

Constitutional Petitions Nos. 268, 351 and 404 of 2024, decided on 15th October, 2024.

Balochistan Development Authority Act (X of 1974)---

----S. 18(2)(d) & (e)---Balochistan Ship Breaking Industry Rules, 1979, R. 15(2)---Levy of "Tonnage Charges" or "Royalty"---Reduction---Approval of the cabinet---Settlement between the Pakistan Ship Breakers Association and Balochistan Development Authority (BDA) as to reduction of Tonnage Fee without approval of Cabinet---Legality---Misconstruing a court's historical summary as a mandate for specific action of reducing tonnage fee---Effect---Petitioners challenged a letter from the BDA directing the Pakistan Ship Breakers Association to pay a tonnage fee at the rate of Rs. 800 per ton on the ground that the competent authority had withdrawn its previous order regarding fixation of a reduced tonnage fee passed on the basis of settlement between the BDA and Pakistan Ship Breakers Association---Validity---Under S. 18(2)(d) & (e) of the BDA Act, the BDA could impose "tonnage charges" or "royalty" only with the previous sanction of the Government and since no previous sanction of the Government was obtained by the Competent Authority while reducing tonnage fee from Rs.800/- per ton to Rs.350/- per ton, therefore, fixation of tonnage fee at Rs.350/- per ton was not in accordance with law---No direction regarding reducing of tonnage fee from Rs.800/- per ton to Rs.350/- per ton was issued by High Court, thus, the BDA had misconstrued the order passed by High Court---Chairman BDA had admitted that approval regarding decrease of tonnage fee from Rs.800/- per ton to Rs.350/- per ton had not been accorded by the Competent Authority, thus, the contention of petitioners that certain right had been created in their favour by fixing the rate of tonnage fee @ Rs.350/- per ton had no substance as the Competent Authority, which in the cases in hand was Government of Balochistan, had never approved the said rate, rather the Provincial Cabinet had fixed the rate of tonnage fee @ Rs.800/- per ton and in this regard the requisite Notification had already been issued by the BDA---High Court directed the Chairman BDA to strictly act in accordance with law and charge the tonnage fee as per the BDA Act and the rules framed thereunder without being influenced from any observation made in the judgments of High Court---Constitutional petitions were disposed of, accordingly.

Collector of Customs v. Sheikh Spinning Mills 1999 SCMR 1402; Government of N.-W.F.P. v. Rahimullah 1992 SCMR 750; Ejaz Shafee v. Federation of Pakistan PLD 1997 Kar 604; Continental Biscuits Ltd. v. Federation of Pakistan through Secretary Defence, Ministry of Defence, Islamabad 2017 PTD 1803; Muhammad Mubeen-Us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence PLD 2006 SC 602; A.R. Khan v. P.N. Boga PLD 1987 SC 107; Overseas Pakistanis Foundation and others v. Sqn. Ldr. (Retd.) Syed Mukhtar Ali Shah 2007 SCMR 569; Abdul Hameed v. Mehmood 2001 SCMR 1316 and Ghulam Rasool v. Chief Administrator of Auqaf PLD 1971 SC 376 distinguished.

Mustafa Impex's Case PLD 2016 SC 808 rel.

Syed Tanweer Ashraf and Imam Sher Marri for Petitioners.

Zahoor Ahmed Baloch, Additional Advocate General for Respondent No.1.

Saad Salauddin for Respondents Nos. 2 and 3.

2025 C L C 792

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Shaukat Ali Rakhshani, JJ

Mst. REHANA HABIB ---Petitioner

Versus

EHSANULLAH and 2 others ---Respondents

Civil Petition No. 1771 of 2022, decided on 30th September, 2024.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Jurisdiction of Family Courts---Scope---Family suit filed by the parents after the death of the spouse---Locus staudi---Suit for recovery of dower and dowry articles initially instituted by deceased daughter of the petitioner against her husband was subsequently prosecuted by the petitioner being mother of deceased daughter---Suit was decreed by the Family Court, however, the Appellate Court partially accepted the appeal preferred by the respondent/defendant to the extent of gold ornaments---Respondent/husband pleaded that proceedings could not have been pursued by the petitioner being mother of the spouse---Validity---Under S.5 of the Family Courts Act, 1964 (Act), the Family Court has been conferred with the exclusive jurisdiction to entertain, hear and adjudicate upon the matters specified in the Schedule of the Act---Dower and dowry articles figure in the said Schedule, thus, the subject matter and relief squarely fell within the jurisdiction of the Family Court---Jurisdiction of Family Court is determined by the subject matter of the suit and not by the person entitled to invoke the jurisdiction, thus, any suit mentioned in the Schedule can be instituted before the Family Court, thus, the Family Court had rightly proceeded with and adjudicated upon the suit of the petitioner---Verdict of the Appellate Court was based on proper appraisal of evidence by attending to all the material points, which suffered from no wrongful or excessive exercise of jurisdiction---Constitutional petition was dismissed, in circumstances.

Khan Assadullah Khan v. Sheikh Islamud Din PLD 1978 Lah. 711; Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95 and Manzoor Ahmed v Muhammad Nawaz Siddique PLD 1975 Lah. 739 rel.

Arshad Aziz for Petitioner.

2025 C L C 851

[Balochistan]

Before Muhammad Hashim Khan Kakar, ACJ and Shoukat Ali Rakhshani, J

NAQEEBULLAH EHSAS and others ---Petitioners

Versus

KHAIR MUHAMMAD ARIF, PRESIDENT PASHTO ACADEMY and others ---Respondents

C.Ps. Nos. 1416 of 2021 and 424 of 2023, decided on 26th March, 2024.

(a) Constitution of Pakistan---

----Art. 251---Balochistan Introduction of Mother Languages as Compulsory Additional Subject at Primary Level Act, (III of 2014), Preamble---National, mother and provincial languages, importance of---Urdu is national language of Pakistan and it mandates that arrangement shall be made for its being used for official and other purposes within fifteen years from the commencing day of the Constitution---Similarly, the provincial assemblies were also to introduce laws and take measures for the teaching, promotion and use of provincial languages in addition to the national language and in that regard the Provincial Assembly of Balochistan also enacted Balochistan Introduction of Mother Languages as Compulsory Additional Subject at Primary Level Act, 2014 ('the Act 2014')---Admittedly, neither the Federal Government implemented Art. 251 of the Constitution despite the lapse of about 35 years nor has the Provincial Government taken any concrete step to preserve and promote the regional languages and implementing the Act of 2014---Undoubtedly, a mother tongue is the language which a child starts hearing after being born and it always helps in providing a definite shape to our emotions and thoughts---Right to education in mother tongue is the right of every child, however, unfortunately in our country the majority of students are taught in language other than their mother tongue, which compromises their ability---Children have no access to education in a language they speak and understand---Balochi, Brahui, Pashto, Hazargi and Persian are neither medium of education nor taught in our schools and there is very possibility of its disappearance while taking away with it an entire culture and intellectual heritage---It is very unfortunate that we focus only on international languages and ignore the remaining two, i.e. mother and national languages, knowing that the only way to save our regional languages is speaking, learning and writing them---Our regional languages are in danger and vulnerable to extinction, they require immediate attention because when a regional language dies, it also loses knowledge, heritage, culture, information and world view---Admittedly, among the social scientists the idea of one nation and one language kills the diversity and mother languages---Unity does not mean uniformity and the unity of our country lies in its diversity.

(b) Constitution of Pakistan---

----Arts. 4, 25 & 28---National, mother and provincial language(s)---Right to association and freedom of expression---Equality---Protection of law---Amendment was made in manifesto of academies for promotion of mother languages i.e. Pashto, Hazargi, Balochi and Brahui academies (academies-in-question), decreasing the number of members of elected bodies of academies-in-question---Case of the petitioner was that all the citizens who prescribed the manifesto of the academies-in-question and had some literary background were eligible to join academies as members as they were entitled to be dealt with in accordance with law---Validity---Constitution of Pakistan guarantees the right to association and freedom of expression and any amendment regarding restriction of new membership infringes upon such rights within the purview of Art. 28 of the Constitution and could potentially be challenged as ultra vires the Constitution---Admittedly under Art. 4 of the Constitution, it is the right of every citizen to enjoy the protection of law and to be treated in accordance with law---Similarly, under Art. 25 of the Constitution, all citizens are equal before law and are entitled to equal protection of law---Impugned amendment made in the manifesto of Pashto Academy regarding limited membership seemed to be made without any justification and it is by now settled that an action, which is mala fide or colorful, is not regarded as action in accordance with law---Similarly, an action taken upon extraneous or irrelevant consideration is also not an action in accordance with law, as such, the same amendment whereby the door of the academy had been closed for new entries was liable to be struck down---High Court set-aside the impugned amendment made in S. 2(2) of Manifesto of Pashto Academy as well as sister academies, whereby the number of members had been limited to 40 to 100, as the same was made in violation of provisions of Societies Act, 1860 and fundamental rights guaranteed by the Constitution---All citizens belonging to the same communities having literary background, prescribing the manifesto and ready to pay the monthly fee and observing the discipline were eligible to be members of the said academies---If any application was filed, the same would be entertained by the President or General Secretory and membership card will be issued immediately without permission from any other body---Constitutional petition was allowed accordingly.

(c) Constitution of Pakistan---

----Art. 28---Societies Registration Act (XXI of 1860), Preamble---National, mother and provincial languages, promotion of---Intelligentsia, rights of---Amendment was made in manifesto of academies for promotion of mother languages i.e. Pashto, Hazargi, Balochi and Brahui academies (academies-in-question), decreasing the number of members of elected bodies of academies-in-question---Case of the petitioner was that all the citizens who prescribed the manifesto of the academies-in-question and had some literary background were eligible to join academies as members and they were entitled to be dealt with in accordance with law---Validity---Pertinently, the academies-in-question were initially registered under the provisions of Societies Registration Act, 1860 and at the time of registration"Memorandum of Association" was also submitted which also did not provide any upper limits of membership---The amendments whereby the number of members had been limited to 40, 60 or 100 while closing doors for new entrants apparently violated fundamental right---Societies established for promotion of languages, science and fine arts or for the diffusion of useful knowledge or for charitable purposes were of paramount importance, particularly within the frame work of Art. 28 of the Constitution which recognizes and safeguards the right to the preservation of language and culture, acknowledging the significance of diversity and protection of minority rights---Such organizations typically aim to unite and protect the values, culture and heritage of a specific group, as such, denying membership to the citizen from the same section was against the principles of diversity and inclusivity---It also leads to discrimination, whereas the Constitution emphasizes equal rights and protection against discrimination---Excluding members based on shared cultural identity also leads to fragmentation within the community and needless to observe that collaboration and shared responsibility could better serve the cause of language and cultural preservation---High Court set-aside the impugned amendment made in S. 2(2) of Manifesto of Pashto Academy as well as sister academies, whereby the number of members had been limited to 40 to 100, as the same was made in violation of provisions of Societies Act, 1860 and fundamental rights guaranteed by the Constitution---All citizens belonging to the same communities having literary background, prescribing the manifesto and ready to pay the monthly fee and observing the discipline were eligible to be members of the said academies---If any application was filed, the same would be entertained by the President or General Secretory and membership card will be issued immediately without permission from any other body---Constitutional petition was allowed accordingly.

Muhammad Sultan Taran for Petitioners (in C.P. No. 1416 of 2021).

Muhammad Anwar Naseem Kasi (Deputy Attorney General), Asif Reki (Advocate General), Zahoor Baloch (Additional Advocate General), assisted by Manzoor Ahmed, Deputy Secretary, Finance, Government of Balochistan for Official Respondents (in C.P. No. 1416 of 2021).

Jam Saka Dashti for Balochi Academy (in C.P. No. 1426 of 2021).

Jawad Ali for Hazargi Academy (in C.P. No. 1426 of 2021).

Najamuddin Mengal and Ilahi Bakhsh for Brahui Academy (in C.P. No. 1426 of 2021).

Shaukat Tareen, Treasurer Pashto Academy (in C.P. No. 1426 of 2021).

Rehmatullah Khilji for Respondents Nos. 1 to 3 (in C.P. No. 1416 of 2021).

Jawad Ali for Petitioners (in C.P. No. 424 of 2023).

Muhammad Asif Reki (Advocate General), Muhammad Anwar Naseem Kasi (Deputy Attorney General) and Zahoor Ahmed Baloch, (Additional Advocate General) for Respondents (in C.P. No. 424 of 2023).

2025 C L C 922

[Balochistan (Quetta Bench)]

Before Muhammad Ejaz Swati and Nazeer Ahmed Langove, JJ

Haji ALI MUHAMMAD and another ---Petitioners

Versus

The SECRETARY GOVERNMENT OF PAKISTAN MINISTRY OF FOREIGN AFFAIRS, CONSTITUTION AVENUE, G-5/1, G-5 ISLAMABAD and 3 others ---Respondents

C.P. No. 1016 of 2023, decided on 31st October, 2023.

(a) Balochistan Wildlife (Protection, Preservation, Conservation and Management) Act (XIV of 2014)---

----Ss. 38 & 39---Hunting (of houbara bustard bird) by Arab dignitaries ---Community Game Reserves on private properties by their owners---Mechanism---Record (including report submitted by Official Respondents) revealed that the private properties were generally not allocated to any person for hunting in this regard, and the Ministry recommended the areas for hunting, which were approved in consultation with the Wildlife Department of the concerned Province---However, in exceptional circumstances, private properties were allocated but with the express consent of the property owners as per the law---Section 38 of Balochistan Wildlife (Protection, Preservation, Conservation and Management) Act, 2014) ('the Act 2014'), provides that where the Government is satisfied that an area of land in private ownership supports sizable population of game animals or has the potential of increasing the number of game animals to harvestable level, it can designate it as a Private Game Reserve on receipt of a formal request from a single owner or 80% of the owners of any jointly owned area, for managing and using it sustainably for hunting of game animals---More importantly, the owner shall manage and use the Private Game Reserve sustainably by a management plan endorsed by the authorized officer---Although the owner is entitled to all income derived from hunting therein or from other sustainable uses of the Private Game Reserve with the condition that the owner is obligated to spend at least 20% of the gross income from a Private Game Reserve for the improvement and development of the Private Game Reserve---Further, the owner is bound to prepare a management plan for the Private Game Reserve in consultation with the authorized authority for its implementation.

(b) Balochistan Wildlife (Protection, Preservation, Conservation and Management) Act (XIV of 2014)---

----Ss. 16, 38 & 39---Hunting by foreign dignitaries in Pakistan---Government Policy---Foreign dignitaries visiting Pakistan for hunting is an important foreign policy instrument that benefits local communities and the domestic economy---Visiting dignitaries carry out development projects (i.e.construction of roads, schools, hospitals, etc.) in the areas allocated to them, creating local employment opportunities---Government of Pakistan also ensures high security for foreign dignitaries with coordinated efforts---Ministry of Climate Change and Environmental Coordination is the formal point for various International Conservations related to the conservation of wildlife---Management, conservation, protection and preservation of wildlife lies with the Provincial wildlife authorities, as each Province has its relevant legislation---However, as per the devolution Notification dated 20 June 2011, the allocation of hunting areas to foreign dignitaries has been assigned to Ministry of Foreign Affairs (respondent) through the concerned Provincial Authorities---Government of Balochistan promulgated a law i.e. Balochistan Wildlife (Protection, Preservation, Conservation and Management) Act, 2014 ('the Act 2014'), to provide protection, preservation, conservation, sustainability and management to the wildlife and protected areas in the Province.

(c) Balochistan Wildlife (Protection, Preservation, Conservation and Management) Act (XIV of 2014)---

----Ss. 38 & 39---Hunting (of houbara bustard bird) by the Arab dignitaries---Local community, participation of---Community Game Reserve, under section 39 of Balochistan Wildlife (Protection, Preservation, Conservation and Management) Act, 2014 ('the Act 204'), pertains to the area owned by a local community that supports a sizable population of game animals or has the potential of increasing the number of game animals with management to harvestable level---Government may designate an area as Community Game Reserve on receipt of a formal request signed and submitted by at least 80% of the households of that community for managing and using it sustainably for hunting of game animals found therein, but in the present case the petitioner failed to place a single document showing that either they were the owners of the area claimed or represented at least 80% of the local community---Constitutional petition was dismissed, in circumstances.

(d) Balochistan Wildlife (Protection, Preservation, Conservation and Management) Act ( XIV of 2014) ---

----Ss. 16 & 39---Hunting and trapping of wildlife---Restrictions---Legal restrictions imposed on hunting and trapping under Balochistan Wildlife (Protection, Preservation, Conservation and Management) Act, 2014 ('the Act, 2014')---Section 16 of the Act, 2014 provides that no person shall hunt any wild animal using a gun, drop spear, deadfall, explosive, gun trap, explosive projectile, bomb, grenade, baited book, net, snare or any other trap, an automatic weapon or a weapon of a caliber used by the Army or Police Force or through a projectile containing any drug or chemical substance, or hunt any game animal in the non-hunting period, or any game animal from a vehicle or conveyance from a distance less than two hundred meters; hunt with the help of decoys or call birds; or hunt with the help of playback recorded calls; or construct or use, to track any wild animal, any pitfall, game pit, or any fence or enclosure, or use any other similar contrivance; or hunt by hiding near a water hole or hunt after sunset or before sunrise.

(e) Constitution of Pakistan---

----Art. 199---Balochistan Wildlife (Protection, Preservation, Conservation and Management) Act (XIV of 2014), Preamble---Hunting (of houbara bustard bird) by the Arab dignitaries---Community Game Reserves on private properties by their owners---Multiple grievances raised by such owners---Invoking constitutional jurisdiction of the High Court---Government established Community Game Reserves (Reserves) on private properties for hunting of houbara bustard bird by the Arab dignitaries---Petitioner (Rakhshan Wildlife Conservancy Washuk) managed one such reserve and filed constitutional petition against activities/complaints relating to the hunting---Maintainability---Grievances of the petitioner were that not only the owners of the lands, tenants and people of the area were deprived from their land and grazing cattle, the free movement of the people was also curtailed and they were threatened of serious consequences by the staff of the Arab dignitaries---Validity---Petitioners spread a wide rope without specifying areas, above all, their ownership or representation of the community---High Court cannot grant relief based on a vague and evasive factual controversy, nor can it be determined in the constitutional jurisdiction of the High Court---However, the petitioners may approach the proper forum to redress their grievances---Constitutional petition, being merit-less, was dismissed.

Ahsan Rafique Rana for Petitioners.

Abdul Zahir Kakar, Deputy Attorney General for Respondents Nos. 1 and 2.

Tahir Iqbal Khattak, Additional Advocate General for Respondents Nos. 3 and 4.

2025 C L C 922

[Balochistan (Quetta Bench)]

Before Muhammad Ejaz Swati and Nazeer Ahmed Langove, JJ

Haji ALI MUHAMMAD and another ---Petitioners

Versus

The SECRETARY GOVERNMENT OF PAKISTAN MINISTRY OF FOREIGN AFFAIRS, CONSTITUTION AVENUE, G-5/1, G-5 ISLAMABAD and 3 others ---Respondents

C.P. No. 1016 of 2023, decided on 31st October, 2023.

(a) Balochistan Wildlife (Protection, Preservation, Conservation and Management) Act (XIV of 2014)---

----Ss. 38 & 39---Hunting (of houbara bustard bird) by Arab dignitaries ---Community Game Reserves on private properties by their owners---Mechanism---Record (including report submitted by Official Respondents) revealed that the private properties were generally not allocated to any person for hunting in this regard, and the Ministry recommended the areas for hunting, which were approved in consultation with the Wildlife Department of the concerned Province---However, in exceptional circumstances, private properties were allocated but with the express consent of the property owners as per the law---Section 38 of Balochistan Wildlife (Protection, Preservation, Conservation and Management) Act, 2014) ('the Act 2014'), provides that where the Government is satisfied that an area of land in private ownership supports sizable population of game animals or has the potential of increasing the number of game animals to harvestable level, it can designate it as a Private Game Reserve on receipt of a formal request from a single owner or 80% of the owners of any jointly owned area, for managing and using it sustainably for hunting of game animals---More importantly, the owner shall manage and use the Private Game Reserve sustainably by a management plan endorsed by the authorized officer---Although the owner is entitled to all income derived from hunting therein or from other sustainable uses of the Private Game Reserve with the condition that the owner is obligated to spend at least 20% of the gross income from a Private Game Reserve for the improvement and development of the Private Game Reserve---Further, the owner is bound to prepare a management plan for the Private Game Reserve in consultation with the authorized authority for its implementation.

(b) Balochistan Wildlife (Protection, Preservation, Conservation and Management) Act (XIV of 2014)---

----Ss. 16, 38 & 39---Hunting by foreign dignitaries in Pakistan---Government Policy---Foreign dignitaries visiting Pakistan for hunting is an important foreign policy instrument that benefits local communities and the domestic economy---Visiting dignitaries carry out development projects (i.e.construction of roads, schools, hospitals, etc.) in the areas allocated to them, creating local employment opportunities---Government of Pakistan also ensures high security for foreign dignitaries with coordinated efforts---Ministry of Climate Change and Environmental Coordination is the formal point for various International Conservations related to the conservation of wildlife---Management, conservation, protection and preservation of wildlife lies with the Provincial wildlife authorities, as each Province has its relevant legislation---However, as per the devolution Notification dated 20 June 2011, the allocation of hunting areas to foreign dignitaries has been assigned to Ministry of Foreign Affairs (respondent) through the concerned Provincial Authorities---Government of Balochistan promulgated a law i.e. Balochistan Wildlife (Protection, Preservation, Conservation and Management) Act, 2014 ('the Act 2014'), to provide protection, preservation, conservation, sustainability and management to the wildlife and protected areas in the Province.

(c) Balochistan Wildlife (Protection, Preservation, Conservation and Management) Act (XIV of 2014)---

----Ss. 38 & 39---Hunting (of houbara bustard bird) by the Arab dignitaries---Local community, participation of---Community Game Reserve, under section 39 of Balochistan Wildlife (Protection, Preservation, Conservation and Management) Act, 2014 ('the Act 204'), pertains to the area owned by a local community that supports a sizable population of game animals or has the potential of increasing the number of game animals with management to harvestable level---Government may designate an area as Community Game Reserve on receipt of a formal request signed and submitted by at least 80% of the households of that community for managing and using it sustainably for hunting of game animals found therein, but in the present case the petitioner failed to place a single document showing that either they were the owners of the area claimed or represented at least 80% of the local community---Constitutional petition was dismissed, in circumstances.

(d) Balochistan Wildlife (Protection, Preservation, Conservation and Management) Act ( XIV of 2014) ---

----Ss. 16 & 39---Hunting and trapping of wildlife---Restrictions---Legal restrictions imposed on hunting and trapping under Balochistan Wildlife (Protection, Preservation, Conservation and Management) Act, 2014 ('the Act, 2014')---Section 16 of the Act, 2014 provides that no person shall hunt any wild animal using a gun, drop spear, deadfall, explosive, gun trap, explosive projectile, bomb, grenade, baited book, net, snare or any other trap, an automatic weapon or a weapon of a caliber used by the Army or Police Force or through a projectile containing any drug or chemical substance, or hunt any game animal in the non-hunting period, or any game animal from a vehicle or conveyance from a distance less than two hundred meters; hunt with the help of decoys or call birds; or hunt with the help of playback recorded calls; or construct or use, to track any wild animal, any pitfall, game pit, or any fence or enclosure, or use any other similar contrivance; or hunt by hiding near a water hole or hunt after sunset or before sunrise.

(e) Constitution of Pakistan---

----Art. 199---Balochistan Wildlife (Protection, Preservation, Conservation and Management) Act (XIV of 2014), Preamble---Hunting (of houbara bustard bird) by the Arab dignitaries---Community Game Reserves on private properties by their owners---Multiple grievances raised by such owners---Invoking constitutional jurisdiction of the High Court---Government established Community Game Reserves (Reserves) on private properties for hunting of houbara bustard bird by the Arab dignitaries---Petitioner (Rakhshan Wildlife Conservancy Washuk) managed one such reserve and filed constitutional petition against activities/complaints relating to the hunting---Maintainability---Grievances of the petitioner were that not only the owners of the lands, tenants and people of the area were deprived from their land and grazing cattle, the free movement of the people was also curtailed and they were threatened of serious consequences by the staff of the Arab dignitaries---Validity---Petitioners spread a wide rope without specifying areas, above all, their ownership or representation of the community---High Court cannot grant relief based on a vague and evasive factual controversy, nor can it be determined in the constitutional jurisdiction of the High Court---However, the petitioners may approach the proper forum to redress their grievances---Constitutional petition, being merit-less, was dismissed.

Ahsan Rafique Rana for Petitioners.

Abdul Zahir Kakar, Deputy Attorney General for Respondents Nos. 1 and 2.

Tahir Iqbal Khattak, Additional Advocate General for Respondents Nos. 3 and 4.

2025 C L C 1315

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Muhammad Najam ud Din Mengal, JJ

Syed MAQBOOL AHMED ---Petitioner

Versus

BIBI MEMOONA and 2 others ---Respondents

Constitution Petition No. 681 of 2025, decided on 21st May, 2025.

Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched. & 14---Constitution of Pakistan, Art. 199---Constitutional petition, maintainability of---Constitutional jurisdiction of the High Court---Factual controversies---Constitutional petition against decision of the Appellate Court in family cases---Decision of Appellate Court cannot be challenged indirectly by filing of Constitutional petition while the legislature had specifically restricted the remedy against family court decision to only one right of appeal---Facts in brevity were that the respondent (wife) filed a suit for dissolution of marriage (Khula), recovery of dowry articles, gold ornaments, and past maintenance against the petitioner (husband) before the Family Court---Despite summons, the petitioner (husband) did not appear, and the suit was decreed ex-parte---Petitioner (husband) filed Constitutional petition challenging decisions of the Trial Court as well as of the Appellate Court---At the outset the petitioner (husband) was confronted with the question as to the maintainability of the Constitutional petition---Held: Provision of S. 14 of the Family Courts Act, 1964 reflected that judgment and decree of the family court could be challenged only once before the court of District Judge, as the same was the only appellate forum and no further right of appeal had been provided against the verdict of such Appellate Court---In the present case, neither the family court was presided over by a district judge or additional district judge nor any person notified by the Government to be of rank of District Judge or Additional District Judge, therefore, the appeal against a decision or decree of family court was competent before the District Court, which was conclusive and final---Section 14 of the Family Courts Act, 1964 did not in any manner, envisage any right to appeal against the decision of Appellate Court in the High Court indirectly by filing a Constitutional petition---Moreover, contentions pertained to factual controversies, which had already been discussed by the Trial Court as well as Appellate Court, being the fact-finding fora, therefore, High Court in exercise of Constitutional jurisdiction under Article 199 of the Constitution could not look into the factual controversy---Besides, the High Court was not vested with the jurisdiction to act as a court of appeal against the decisions of the Family Court in the absence of any specific statutory provisions conferring such a right of appeal in family cases.

M. Hamad Hassan v. Mst. Isma Bukhari and 2 others 2023 SCMR 1434 rel.

Syed Abdul Salam for Petitioner.

2025 C L C 1325

[Balochistan]

Before Rozi Khan Barrech, J

SANAULLAH ---Petitioner

Versus

CANTONMENT EXECUTIVE, OFFICER, QUETTA CANTT and 2 others ---Respondents

Civil Revision No. 539 of 2024, decided on 27th September, 2024.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 27& S. 115---Production of additional evidence at appellate stage---Scope---Irrelevancy of documents-Absence of reasonable cause---Plea of non-possession of documents during pendency of suit---Validity---Under O. XLI R. 27, C.P.C., the appellate court may allow additional oral or documentary evidence in limited circumstances, thus, its scope is limited---Order XLI, Rule 27, C.P.C., empowers the appellate court to allow additional evidence after recording reasons---No plausible explanation or reasonable cause was shown for production of additional evidence---Law regarding additional evidence was not intended to allow an unsuccessful litigant to patch-up weak parts of their case and fill omissions on appeal, and such power ought to be exercised sparingly--Petitioner neither applied to the Trial Court for recording additional evidence nor did the appellate court find it necessary to allow placing of documents as additional evidence---Petitioner merely tried to patch-up weak parts of his case without discovery of new evidence, facts, or documents, thus, the appellate court committed no illegality in dismissing the application for producing additional evidence---Order XLI, Rule 27, C.P.C., disclosed no exceptional circumstance to justify recording of additional evidence and the grounds were flimsy and appeared to be an attempt at a fishing or roving inquiry---Civil revision was dismissed, in circumstances.

Abdul Hameed and 14 others v. Abdul Qayyum and 16 others 1998 SCMR 671 rel.

Sharjeel Haider for Petitioner.

2025 C L C 1768

[Balochistan]

Before Muhammad Ejaz Swati, ACJ and Muhammad Aamir Nawaz Rana, J

Messrs GREEN FIELDS MINERALS AND MINING (PVT.) LIMITED through Authorized Representative ---Petitioner

Versus

PROVINCE OF BALOCHISTAN through Secretary Mines and Minerals Development Department and 3 others ---Respondents

C.Ps. Nos. 505 and 506 of 2024, decided on 21st April, 2025.

Balochistan Mineral Rules, 2002---

----R. 70---Constitution of Pakistan, Art. 199---Grant of an area under an exploration license---Cancellation of license, challenge to---Constitutional petition---Maintainability---Adequate remedy of appeal, availability of---Constitutional jurisdiction of the High Court, exercise of---Scope---Brief facts were that the petitioners were granted Exploration Licenses by the Director General Mines and Minerals, Balochistan, for a period of three years to explore areas for copper, gold, silver, and other metals, however, such licenses were later cancelled; that the petitioners challenged the cancellation of licenses on the ground of being tainted with mala fide and unlawful, arguing that they had complied with all requirements---Held: Rule 70 of the Balochistan Mineral Rules, 2002 outlined the hierarchy and process for appeal in cases involving order of respondent No.2 (D.G. Mines and Minerals) touching grievance of the parties relating to licenses in question---Rule 70 (ibid) provided a clear mandate for appeal, ensuring that the aggrieved person could seek redressal accordingly---The authority which passed the order was conferred a power under statute, which provided the right of appeal---The prescribed legal procedure was to be followed to avoid excessive cases in High Court against all types of orders by-passing the remedy of appeal provided by the relevant stature---High Court under Constitutional jurisdiction did not intervene where an aggrieved person had adequate remedy available by way of appeal---High Court should not be approached without first exhausting remedy provided in law in the hierarchy---In the present case, the petitioners' appeal were pending before the respondent No. 1, where an efficacious alternate and time bound remedy was available specifically constituted under the law, therefore, resort to extraordinary constitutional jurisdiction before the High Court was not to be favored unless exceptional circumstances were shown---Since the petitioners had already availed remedy of appeals which were pending adjudication, which was not only efficacious but also effective as it allowed for both factual and legal question to be examined by the authority designated under the Balochistan Mines and Minerals Rules, 2002, present Constitutional petitions were not maintainable and were dismissed, in circumstances.

2023 SCMR 866; Muhammad Ismail v. Fazal Zada PLD 1996 SC 246; Mumtaz Ahmed v. Assistant Commissioner PLD 1990 SC 1195; Jameel Qadir v. Government of Balochistan 2023 SCMR 1919 and Aftab Ahmed Khan v. Muhammad Ajmal PLD 2010 SC 1066 rel.

Farooq H Naek, Anwar-Ul-Haq Kakar and Syed Qaim A. Shab for Petitioner.

Zahoor Baloch, Additional Advocate General for Official Respondents.

2025 C L C 1778

[Balochistan]

Before Muhammad Ejaz Swati, CJ and Muhammad Aamir Nawaz Rana, J

ABDUL HAQ and 4 others ---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and 3 others ---Respondents

C.P. No. 490 of 2025, decided on 27th May, 2025.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Public tender---Cancellation---Factual controversy---Petitioner / contractor was aggrieved of change of nomenclature of project in question from "widening of road" to "scheme for construction of BT road and side drain"---Validity---Electronic bid of widening / improvement / rehabilitation of road in question was initially invited, bid opening date was fixed but the same was cancelled due to unavoidable circumstances---Thereafter bid was again cancelled after a few months due to the reason that it was not published on time---Third time after fixing a specific date, the bid was again cancelled / annulled due to unavoidable circumstances---Petitioner alleged that change of nomenclature was made without sufficient legal justification or adherence to rules---Authorities claimed that inhabitants' claim / objection over land led to halt in implementation of the scheme---High Court declined to exercise its jurisdiction as factual controversy was involved in the matter---Constitutional petition was disposed of accordingly.

Abdul Raheem Ziaratwal v. Federation of Pakistan 2014 SCMR 873; Action Against Distribution of Development Funds By Ex-Prime Minister Raja Parvaiz Ashraf PLD 2014 SC 131 and Zarif Khan Hussain Zai and Brothers v. Government of Balochistan 2024 YLR 2353 ref.

Messrs Ahmed Developers v. Muhammad Saleh and others 2010 SCMR 1057; Suo-Motu case No.13 of 2007 PLD 2009 SC 217; Sardar Naseer Ahmed Mooiani v. Chief Executive/Chief Secretary, Government of Balochistan, Quetta and others 2007 SCMR 105 and Muhammad Yahya and others v. Government of Khyber Pakhtunkhwa through Secretary Forest and others 2022 MLD 21 rel.

Munir Ahmed Kakar for Petitioners.

Adnan Basharat, Advocate General assisted by Zahoor Baloch, Additional Advocate General, Faisal Mengal, Assistant Advocate General, Muhammad Akhtar, Deputy Secretary, P&D Department and Ali Nawaz Marri, XEN Roads Quetta for Respondents.

2025 C L C 1800

[Balochistan]

Before Muhammad Ejaz Swati, CJ and Muhammad Aamir Nawaz Rana, J

Malik MUHAMMAD NASEEM KHAN (Now late through legal herirs) and 2 others ---Petitioners

Versus

Mst. BIBI ZAHRA and 4 others ---Respondents

C.P. No. 287 of 2024, decided on 26th May, 2025.

Balochistan Land Revenue Act (XVII of 1967)---

----Ss. 45 & 172---Constitution of Pakistan, Art. 199---Constitutional petition---Record of Rights, entries in---Inclusion of name of co-sharer---Rights of women folk---Petitioners assailed mutation attested in favour of respondent, who was their real sister---Plea raised by petitioners was that their predecessor-in-interest, in his lifetime, had gifted part of properties in dispute in favour of his sons---Validity---If respondent / sister had no share in gifted property, then why petitioners, in year 2008, alleged that they had given share to her in shape of cash against agreement dated 30-06-2008---Agreement in question was neither registered nor consideration amount as alleged by petitioners was mentioned in the agreement and such agreement was otherwise void---High Court declined to interfere in mutation attested in favour of respondent---Constitutional petition was dismissed, in circumstances.

Mst. Parveen (Deceased) through LRs. v. Muhammad Pervaiz and others 2022 SCMR 64 rel.

Bahlol Khan Kasi for Petitioners.

Aurangzaib Khan Kakar for Respondent No. 1.

Zahoor Ahmed Baloch, Additional Advocate General for Respondents Nos. 2 to 5.