GBLR 2010 Judgments

2010 G B L R 1

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

ALL GILGIT BALTISTAN WORKERS through Representative----Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Kashmir Affairs & Northern Areas Division, Islamabad and 3 others----Respondents

C.P.L.A. No.12 of 2009, heard on 24th August, 2009.

(a) Gilgit - Baltistan (Empowerment and Self Governance) Order, 2009---

----Arts.3 to 19, 60(13) & 61---Northern Areas Governance Order, 1994, Arts.8, 15, 16, 17, 19-A & 27---Constitution of Pakistan (1973), Arts.4 & 25---Industrial Relations Act (IV of 2008), Preamble---Constitutional petition before Supreme Appellate Court by Gilgit Baltistan Workers Federation---Non-extension of application of Industrial Relations Act, 2008 and other labour related laws to Northern Areas by Government of Pakistan---Petitioner's plea was that people of the Northern Areas being citizens of Pakistan were equally entitled to benefit of Labour Laws enforced in Pakistan and without application thereof in such Areas, labour class and trade unions of such Areas were deprived of their fundamental right of access to justice, equal treatment and protection of law in terms of Arts.4 and 25 of the Constitution of Pakistan---Validity---Such questions relating to fundamental rights of people of the Northern Areas were of public importance---Supreme Appellate Court granted leave to consider questions raised in the petition.

(b) Gilgit - Baltistan (Empowerment and Self Governance) Order, 2009---

----Arts.3 to 19, 60(13) & 61---Northern Areas Governance Order, 1994, Arts.8, 15, 16, 17, 19-A & 27---Constitution of Pakistan (1973), Arts.4 & 25--- Industrial Relations Act (IV of 2008), Preamble---Constitutional petition before Supreme Appellate Court by Gilgit Baltistan Workers Federation in representative capacity--Prayer in the petition was that Government of Pakistan be directed to extend application of Industrial Relations Act, 2008 and other labour related laws in the Northern Areas---Validity---Petitioner had filed direct petition in representative capacity, as it was not possible for individual workers of the Areas to raise common grievance through separate petition---Supreme Appellate Court permitted the petitioner (Workers Federation) to represent the workers in representative capacity without prejudice to right of respondents to raise objection as to maintainability of such petition.

(c) Gilgit - Baltistan (Empowerment and. Self Governance) Order, 2009---

----Art.1---Northern Areas Government Order, 1994, Art.1---Constitution of Pakistan (1973), Art.1(d)---Northern Areas, constitutional status of---History stated.

(d) Gilgit - Baltistan (Empowerment and Self Governance) Order, 2009---

----Arts.61, 60(13), 69 & 71---Northern Areas Governance Order, 1994, Arts.19-A & 27---Constitution of Pakistan (1973), Art.184(3), Part II, Chap.1 (Arts. 8 to 28)---Original jurisdiction of superior courts in Gilgit Baltistan---Scope---such jurisdiction would be exercised for enforcement of fundamental rights in matters involving question of public importance---Any rigid interpretation in respect of exercise of such powers by superior courts i.e. Chief Court and Supreme Appellate Court of Gigit Baltistan for enforcement of fundamental rights would be against concept and spirit of rights conferred by Art.19-A of Northern Areas Governance Order, 1994 read with Ch. I, Part-II of Constitution of Pakistan---Principles.

(e) Gilgit - Baltistan (Empowerment and Self Governance) Order, 2009---

----Art.60(13) & 61---Northern Areas Governance Order, 1994, Arts.17(1), 19-A & 27---Industrial Relations Act (IV of 2008), Preamble---Constitution of Pakistan (1973), Arts.4, 17 & 25---Direct constitutional petition before Supreme Appellate Court by Gilgit Baltistan Workers Federation in representative capacity---Prayer for directing Government of Pakistan to extend application of Industrial Relations Act, 2008 and other labour related laws to Northern Areas---Objection of respondents that petitioner was not a recognized agent or representative body of labour class, thus, could not maintain such petition---Validity---Such ground would be a rigid interpretation to recognize fundamental right of formation of labour union of people of such Areas under Art.17(1) of Constitution of Pakistan read with Art.19-A of Northern Areas Governance Order, 1994---Such petition with reference to enforcement of fundamental rights of public importance guaranteed under Constitution or law could be brought by any person and question of locus standi of a person, whether he was directly aggrieved or not would be of no significance---Fundamental rights in terms of Art.17(1) of the Constitution without machinery of law for its enforcement would be of no significance---Question as to whether Industrial Relations Act, 2008 should be extended to such Areas was a question of great public importance for being directly related to fundamental rights of such Areas---Such question would require decision on touchstone of fundamental right of formation of union for collective benefit of labour class---Supreme Appellate Court overruled the objection in circumstances.

Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 rel.

(f) Gilgit - Baltistan (Empowerment and Self Governance) Order, 2009---

----Arts.61 & 60(13)---Northern Areas Governance Order, 1994, Art.27---Constitution of Pakistan (1973), Art.184(3) --Filing of direct constitutional petition before superior courts---Locus standi---Alternate remedy, availability of---Such petition with reference to enforcement of fundamental rights of public importance guaranteed under Constitution or law could be brought by any person and question of locus standi of a person, whether he was directly aggrieved or not would be of no significance---When question of public importance relating to enforcement of fundamental rights was involved in such petition, then Supreme Appellate Court notwithstanding availability of alternate remedy under law could take cognizance of matter on such petition moved by an individual or by an association of representative capacity--Principles.

Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 rel.

(g) Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009---

----Arts.3 to 19, 60(13) & 61---Northern Areas Governance Order, 1994, Arts.8, 15, 16, 17, 19-A & 27---Industrial Relations Act (IV of 2008), Preamble---Constitutional petition before Supreme Court by Gilgit Baltistan Workers Federation in representative capacity---Withholding of application of Industrial Relations Act, 2008 and other labour related laws to Northern Areas by Government of Pakistan---Plea of petitioner that labour class of such Areas being citizens of Pakistan were equally entitled to benefit of Labour Laws enforced in Pakistan and without application thereof in such Areas, labour class and trade unions of such Areas were deprived of their fundamental rights of access to justice, equal treatment and protection of law in terms of Arts.4 and 25 of the Constitution of Pakistan read with Art.19-A of Northern Areas Governance Order, 1994---Validity---Initially Industrial Relations Ordinance, 1969 was made applicable to such Areas, but subsequently operation thereof from such areas was withdrawn by Government of Pakistan---Exclusion of application of provisions of Industrial Relations Ordinance, 1969 or non-application of Industrial Relations Act, 2008 being violative of Art.17(1) of the Constitution of Pakistan and Art.19-A of Northern Areas Governance Order, 1994 was without any constitutional or legal justification--Industrial Relations Ordinance, 1969 or Industrial Relations Act, 2008 provided mechanism of registration and operation of union and recognition of collective bargaining agent to raise charter of demands and manner of settlement of dispute between employers and employees through negotiation---No such statute was available in such areas, resultantly the right of formation of unions as a legitimate representative body of workers could not be effectively exercised for welfare of labour class---Registered union having legal recognition could perform all acts permissible under law and could also enter into a binding contract with employer on behalf of employees---Right of freedom of association and forming of union in terms of Art.17(1) of the Constitution of Pakistan read with Art.19-A of Northern Areas Governance Order, 1994 was a constitutional right, which could not be denied---Fundamental duty of Government would be to provide statutory machinery for implementation and enforcement of rights recognized under Art.17(1) of the Constitution, failing which such right could deem to have been denied---Federal Government, subject to reasonable restrictions on functioning of unions by making suitable amendments in Industrial Relations Act, 2008 might extend same to such areas until an alternate statutory law was framed for enforcement of right of association of union in such areas in terms of Art.17(1) of the Constitution of Pakistan read with Art.19-A of Northern Areas Governance Order, 1994---Any restriction on enforcement of legal or constitutional right impliedly or expressly or directly or indirectly would amount curtailment of such right---Northern Areas were under direct control of Federal Government---People of such areas were citizens of Pakistan---Federal Government by making Ch. I, Part-II of the Constitution of Pakistan relating to fundamental rights as part of Northern Areas Governance Order, 1994 had recognized right of forming of labour union by labour class, but withholding of machinery of law for enforcement of such right in such area was discriminatory---Laws would be presumed to be valid, unless proved to have been enacted in violation of constitutional principles---Legislative presumption would be in favour of beneficial interpretation of provision---Industrial Relations Act, 2008 applicable to whole of Pakistan would impliedly be extended to Northern Areas, though not defined as territory of Pakistan in the Constitution, but was an integral part of Federation of Pakistan for all practical purposes and directly governed by Federal Government---Duty of Government of Pakistan either to extend federal laws beneficial to such areas by issuing a formal notification or enact law for public welfare and interest---Withholding of remedy would amount to infringement of right---Rights of labour class provided in different labour laws could not be enforced and protected without providing appropriate forum for their enforcement---Forming of union being fundamental right of labour class and withholding application of law for enforcement of such right would amount to infringement of fundamental right---Supreme Appellate Court accepted the petition in terms of prayer made therein.

Civil Aviation Authority v. Union of Civil Aviation Employees PLD 1997 SC 781; Al-Jehad Trust v. Federation of Pakistan 1999 SCMR 1379 and I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041 rel.

(h) Administration of justice---

----No right exists without a remedy.

(i) Constitution of Pakistan (1973)---

----Arts.4 & 25---Northern Areas Governance Order, 1994, Art.19-A---Equal protection of law---Scope---Reasonable classifications, determination of---Test stated.

The provisions of Article 25 of the Constitution of Pakistan which are embodied in Article 19-A of Northern Areas Governance Order, 1994 may be subject to reasonable classification, and there is no general standard for the test of reasonableness, rather it depends upon the circumstances which may justify different treatment on the basis of principle of reasonable classification, but the restriction on the exercise of legal rights for the reason, which may not be capable to justify the restriction before the court of law, will make the restriction the right guaranteed under the law and Constitution unreasonable.

The principle of equality before law and equal protection of law is recognized in the Constitution with the concept of reasonable classification, but this classification is not as such applicable in respect of fundamental rights rather the same is applied in ordinary law for enforcement of constitutional rights.

The reasonable classification means that every citizen is not to be treated alike in all circumstances, rather it contemplates that persons facing similar situation are to be treated alike. Reasonable classification for the purpose of application of law is permissible, but it must be founded on the reasonable distinction or basis. Different laws can validly be made for different classes of the people in the society to protect their rights on the basis of reasonable classification; therefore, no standard of universal application to the test of classification in a particular set of circumstances may be unreasonable in another set of circumstances. The application of law or group or class of person in the society may be legally valid, if there is sufficient basis or reasons for such classification, but if it is not founded on any rational basis, it is certainly beyond the scope of Article 25 of the Constitution. The equal protection of law means that all persons equally placed be treated alike in respect of the privileges and liabilities and a reasonable classification must be based on an intelligible differentia, which distinguishes a person or group of persons from other person or group of persons and this differential must have rational basis to the object sought to be achieved by the classification.

(j) Interpretation statutes---

----Legislation at provincial or federal level---Principles---Scope---Such legislation would be made on basis of geographical situation, cultural environment, social and economic consideration---Classification in respect of legislation merely on territorial basis was not recognized, rather same might be one consideration among others.

Ehsan Ali, Advocate for Petitioners.

Advocate General, Northern Areas for Respondents.

Muhammad Issa, Advocate, President Supreme Appellate Court, Bar Association Gilgit.

Manzoor Ahmed, Advocate, President Chief Court, Bar Association Gilgit.

Abid Hussain Minto, Senior Advocate Supreme Court of Pakistan, as Amicus Curiae.

Date of hearing: 24th August, 2009.

2010 GBLR27

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Muhammad Yaqoob Khan, J

KARAKORAM INTERNATIONAL UNIVERSITY through Vice-Chancellor, Gilgit and another----Petitioners

Versus

FIDA HUSSAIN and 9 others----Respondents

C.P.L.A. No.4 of 2009, decided on 20th October, 2009.

(a) Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 60 (13)---Leave to appeal was granted by Supreme Appellate Court to consider the contention that University (Employer) in its discretion might or might not appoint a person after his selection against a vacant post and a selectee had no vested right to claim appointment.

(b) Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 71(2) (a)---Constitution of Pakistan (1973), Art. 199---Writ petition---Aggrieved person---Vested right---Selection for a post---Respondents, in response to an advertisement in newspaper, applied for posts in question and remained unsuccessful in the process of selection---Chief Court in exercise of writ jurisdiction directed the authorities to appoint respondents against vacant posts---Validity---No vested right whatsoever had accrued in favour of respondents, hence question of its infringement did not arise---Person could be said to be aggrieved only when he was denied a legal right by someone, who had a legal duty to perform relating to that right---Court could extend its jurisdiction to entertain writ petition when there existed not only a right but justiciable right either personal or otherwise---No order could be passed under Art. 199 of the Constitution of Pakistan, 1973, merely on the basis of recommendations or short listing respondents because no legal or vested right of respondents was infringed---Appointment being a subjective assessment, exclusively fell within the jurisdictional domain of appointing authority, who could not be compelled to make any appointment---Plea of mala fide, which though was alleged but could not be substantiated by providing any cogent and concrete evidence---Supreme Appellate Court set aside the judgment passed by Chief Court to meet the ends of justice---Appeal was allowed.

Ehsan Ali and Mir Ikhlaq Hussain, Advocates for Petitioners.

Muhammad Issa, Advocate for Respondents

Date of hearing: - 20th October 2009.

2010 GBLR32

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

SECRETARY FOR KASHMIR AND NORTHERN AREAS AFFAIRS, ISLAMABAD and others----Petitioners

Versus

KAMRAN KHAN and 6 others----Respondents

Civil Review No. 4 of 2009, heard on 28th October, 2009.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 65---Supreme Appellate Court Rules, 2008, O.XXVI, R.1---Review of Supreme Appellate Court judgment---Fresh evidence---Authorities produced a letter to support fixing of royalty and other surcharges---Validity---Such letter could neither be treated as rule nor it was brought in evidence on record at any stage and surfaced for the first time in review petition, which could not be considered as part of record---Such letter produced by authorities had no force of law as to be given effect---Authorities failed to point out any error in the judgment for interference in review jurisdiction---Petition was dismissed.

Advocate General Gilgit Baltistan.

2010 G B L R 33

[Northern Areas Supreme Appellate Court]

Present: Syed Jaffar Shah and Muhammad Yaqoob, JJ

SHAB RUNG----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No. 20 of 2009, decided on 6th October, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.457---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.9/14---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---House breaking by night, theft liable to Hadd or Tazir---Bail, grant of---Accused was nominated in the F.I.R. as suspect---Complainant and other employees though present at the spot as guards of the godown had neither caught the accused and his co-accused red handed, nor informed the police, especially when a considerable time had been spent in opening the door of godown and loading the wheat bags in the vehicle---Prosecution case, thus, was doubtful, rather it showed the indulgence and abetment of the guards in the commission of the crime---Nothing incriminating had been recovered from the accused---Prosecution had even failed to recover the original key of the godown---Investigation in the case had been conducted by the police in a capricious and irregular manner---Bail was allowed to accused in circumstances.

Sharif Ahmad, Advocate for Petitioner.

Advocate General Gilgit-Baltistan for the State.

2010 GBLR 35

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Muhammad Yaqoob, J

SAFA and 3 others----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.10 of 2009, heard on 9th July, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art. 60 (13)---Qatl-­e-amd---Bail, refusal of---Common intention---Determination---Accused contended that S.34, P.P.C. would not attract, as accused had no common intention to commit offence of Qatl-e-Amd and even if allegation against them were proved by prosecution at trial, there was no possibility of their ultimate conviction under S.302 P.P.C.---Validity---Tentative assessment of evidence available on record would suggest active participation of accused in the occurrence---Question of common intention would be determined at trial in the light of evidence and the same could not be decided at bail stage---Leave to appeal was refused.

Malik Haq Nawaz Advocate for Petitioners.

2010 GBLR36

[Supreme Appellant Court Gilgit]

Before Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

In re: SUO MOTU CASE RCC CHINA BRIDGE

Suo Motu Case No. 1 of 2009, heard on 7th July, 2009.

(a) Northern Areas Governance Order, 1994---

----Arts.19-A, 27 & 45(2)---Fatal Accidents Act (XIII of 1855), S.1---Fatal accident---Suo motu notice---Payment of compensation---Four innocent young persons were travelling in a car on road during the night and while crossing the bridge when reached in the centre of bridge, their car due to the breakage in the bridge fell in the river, three of them lost their lives; whereas fourth one sustained serious injuries---Said accident was not due to fault of the victims, but they lost their lives due to negligence of public functionaries who were responsible to maintain the road and bridge---Degree of carelessness about the life of people was cruel and criminal---Matter relating to the right of life of the people in terms of Art.9 of Constitution of Pakistan read with Art.19-A of the Northern Areas Governance Order, 1994, was of public importance and Supreme Appellate Court exercising the power under Art.45(2) of Northern Areas Governance Order, 1994 was concerned to take cognizance of the matter---Careful examination of the statements of the witnesses had shown that on the day of incident, neither the road leading through bridge was closed for traffic nor any sign board that bridge was out of order, was put on the road---General Manager of National Highway Authority had not been able to bring on record any evidence in support of version that necessary precautions were taken to close the road for traffic to avoid any incident---Clipping of newspaper and statements of the witnesses, had clearly shown that the damage caused to the bridge concerned due to the breakage of its pillars, was well within the knowledge of National Highway Authority, but said Authority knowingly had omitted to block the road and close it for traffic, so much so that no sign board indicating "danger" was installed on the read on either side of the bridge to warn the public---Failure of Authority to take the precautionary measures for the safe journey on the road was a gross negligence for the purpose of civil as well as criminal liability and aggrieved persons at their choice could surely avail the appropriate remedy provided under the law---Sue motu notice was disposed of with direction that National Highway Authority would pay compensation in the sum of Rs. five lac for each deceased to his legal heirs and same amount to the injured and Authority would bear the expenses to the treatment of injured. ?

(b) Words and phrases---

----`Negligence' defined and explained.

Advocate-General Northern Areas.

Muhammad Issa, Advocate.

Abdullah Jan, General Manager, NHA.

Date of hearing: 7th July, 2009.

2010 GBLR 46

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

SHAHEEN SHAH and another----Petitioners

Versus

MUHAMMAD HASSAN and 4 others----Respondents

C.P.L.A. No. 17 of 2009, heard on 3rd September, 2009.

Civil Servants Act (LXXI of 1973)---

----S.8---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Arts.60(13) & 71---Seniority of civil servants---Factual controversy---Petitioners and respondent were appointed in year, 1985, on different dates---Qualifying of diploma within one year of the appointment was made a condition for regularization of their service at the time of their appointment---Respondent assailed seniority list before Chief Court in writ jurisdiction---Chief Court allowed the petition with the direction to place respondent at serial No. 1 in seniority list---Validity---During pendency of writ petition before Chief Court, authorities did not issue any seniority list but a memorandum was issued by authorities wherein it had been opined that seniority would take effect from the date of regular appointment and not from the date of passing of diploma---Respondent failed to establish whether his service had been brought on regular footing or he was still discharging his duties as a temporary employee---Judgment of Chief Court was also silent in that regard and the court should have discussed such aspect of the case before arriving at final conclusion but no pain was taken in that regard---Judgment passed by Chief Court was also silent about applicability of seniority rules whether department had their own seniority rules or the seniority was governed under S.8 of Civil Servants Act, 1973---As such the same should have been examined and discussed in the judgment passed by Chief Court but the same had not been done so---Chief Court had accepted writ petition and granted relief in favour of respondent and maintained / validated the seniority list which favoured the respondent---Chief Court had not appreciated the real controversy and had not given a well reasoned verdict without dialating upon merits of the case---Supreme Appellate Court remanded the case to Chief Court for decision afresh in accordance with law after providing proper opportunity of hearing to all parties.

Muhammad Issa, Advocate for Petitioners.

Mirza Ali, Advocate for the Respondent No. 1.

Advocate-General for Respondent No.2.

Date of hearing: 3rd September, 2009.

2010 GBLR 50

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

In re: SUO MOTU CASE NO. 14 OF 2009

Suo Motu Case No. 14 of 2009, decided on 19th November, 2009.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 61---Original jurisdiction of Supreme Appellate Court---Suo motu powers, exercise of---Conditions of jails---Rights of prisoners---Reports of District and Sessions Judges showed that Jail Administration had no concept of right of prisoners as human beings and controlling authorities in government were also least bothered about problems of prisoners---Non-observance of instructions contained in Jail Manual and Prison Rules, in respect of right and facilities to be provided to prisoners was not only violation of human rights but also was a grave legal and constitutional violation---Prisoners were human beings and subject to law and were entitled to fair and equal treatment in respect of their rights as citizens under the law and Constitution---Supreme Appellate Court, for improvement of poor condition and reformation of Jails issued directions and asked the Home Secretary and Chief Secretary for taking action on Jail reformation on long and short term basis---Supreme Appellate Court also directed District and Sessions Judges and Jail Reforms Committees for implementation of the directions so issued and to submit their reports.

Capt. (R) Usaman Younus, Home Secretary Gilgit-Baltistan.

Sabtain, Deputy Secretary Home, Gilgit-Baltistan.

Deputy Advocate General for Gilgit-Baltistan.

2010 G B L R 54

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

THE STATE----Petitioner

Versus

ZAHOOQ----Respondent

Crl. Misc. No.7 of 2009, heard on 18th June, 2009.

(a) Criminal Procedure Code (V of 1898)---

----S.497(5)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Penal Code (XLV of 1860), Ss.376/450---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Rape, house-trespass---Bail, cancellation of---Accused had been nominated in the F.I.R.---Victim girl had fully implicated the accused in the offence in her statement made under S.161, Cr.P.C., which was fully corroborated by her medico-legal report---Sufficient material was available on record to connect the accused with the commission of offence falling within the prohibitory clause of S.497(1), Cr.P.C.---Bail could not be claimed as of right in non-bailable cases and the same would not be granted as a matter of grace---Supreme Appellate Court, held, would not hesitate to interfere with the order passed by lower court on improper exercise of discretionary jurisdiction in the spirit of law---Accused was directly charged by the minor victim girl for having committed "zina" with her along with his co-accused, which was an offence under S.10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, punishable with death---Bail granted to accused by Chief Court was cancelled in circumstances.

(b) Criminal Procedure Code (V of 1898)---

----S.497---Bail in non-bailable offences---Principles---Bail in non-bailable cases is discretionary and court must exercise such discretionary jurisdiction according to the settled principles for grant of bail in such cases---Bail cannot be claimed as of right in non-bailable cases punishable with death or imprisonment for life, unless the same fall within the ambit of S.497(2), Cr.P.C., and if the case is not covered by the said provision of law, bail may not be granted as a matter of grace.

Advocate-General for the State.

Accused present in person.

2010 GBLR 56

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

ALL GILGIT BALTISTAN WORKERS' TRADE UNION FEDERATION through Representative----Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Kashmir Affairs and Northern Areas Division, Islamabad and 3 others----Respondents

C.P.L.A. No.12 of 2009, heard on 24th August, 2009.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Arts. 9 & 61---Petitioner had sought direction to the effect that Industrial Relations Act, 2008 and other labour related laws be immediately extended to Northern Areas---Validity---Trade or a Labour Union could not effectively function as a representative body in the industrial disputes between the workers and employees for protection of the rights of workers, merely on the basis of Art.17(1) of the Constitution of Pakistan, read with Art.19-A of Northern Areas Governance Order, 1994 substituted by Art.9 of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, without statutory recognition---Laws on the industrial relations for effective enforcement of fundamental right of formation of union in Gilgit Baltistan and for regulating the industrial relations, in circumstances was to be provided with application of labour laws---Petition was allowed by Supreme Appellate Court with direction that subject to all just exceptions, until a permanent law regulating the industrial relations for protection of labour rights with reasonable restriction was made for Gilgit Baltistan, Industrial Relations Act, 2008 a temporary legislation with related labour laws would be enforced in Gilgit Baltistan (Northern Areas) which would deem to have been extended to Gilgit Baltistan (Northern Areas)---Federal Government would accordingly issue the formal notification for enforcement of said laws.

Ehsan Ali, Advocate for Petitioners.

Advocate-General, Northern Areas for Respondents.

Muhammad Issa, Advocate, President Supreme Appellate Court Bar Association, Gilgit.

Manzoor Ahmed, Advocate, President Chief Court Bar Association, Gilgit.

Abid Hassan Minto, Senior Advocate Supreme Court of Pakistan, as amicus curiae.

2010 GBLR 59

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J.

SETTLEMENT OFFICER GILGIT and 3 others----Petitioners

Versus

MUHAMMAD HUSSAIN and 40 others----Respondents

C.P.L.A. No.2 of 2009, heard on 10th June, 2009.

Land Acquisition Act (I of 1894)---

----Ss.4 & 18---Gilgit-Biltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Acquisition of land---Compensation---Determining factors---Previous award---Authorities assailed compensation of acquired land fixed by Referee Court and upheld by Chief Court---Land owner produced sale deeds in respect of transactions in surrounding area in which price of land was about Rs.7000 per Marla (Rs.140,000 per kanal), whereas authorities determined compensation at the rate of Rs.50,000 per Kanal---Validity--Principle for determining market value of land was whether price offered by a willing purchaser was acceptable to a willing seller or not---Relevant factors to be essentially considered for determination of market value of land were the character of land and its location as well as potential use in future---Previous award of similar kind of land in the area was certainly a relevant evidence but increase in price of land in intervening period would reduce its evidentiary value to determine . current market value of land---Supreme Appellate Court did not find any legal or factual defect of misreading or non-reading of evidence or misrepresentation of law on the subject---Price of similar kind of land fixed in previous award could be the direct source for determining market value of acquired land but correct method for fair determination of market value of land on the date of issue of notification under S.4 of Land Acquisition Act, 1894, was the evidence based on transactions of sales of similar kind of land in surrounding area shortly before issue of notification---Supreme Appellate Court declined to interfere in the judgment passed by Chief Court---Leave to appeal was refused.

Ali Nazar, Advocate along with Advocate-General for Petitioners.

2010 G B L R 62

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

GHULAM NABI and 2 others----Petitioner

Versus

THE STATE----Respondent

Cr. Misc. No.19 of 2009, heard on 15th September, 2009.

(a) Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.395/34/506---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.20---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Dacoity, criminal intimidation haraabah liable to Tazir---Bail, grant of---Question of holding identification parade did not arise as accused admittedly had muffled their faces at the time of occurrence---Delay of 23 hours in lodging the F.I.R. had made the prosecution case doubtful---No one had been nominated in the F.I.R.---Belated recovery of the undescribed looted amount and Mobile sets without associating independent witnesses in the proceedings in a non-transparent manner, was not credible---Complainant had failed to identify the accused---Case against accused, thus, called for further inquiry---Bail could not be withheld merely on the plea of serious and anti-social nature of the offence, if the accused were, otherwise, found entitled to bail---Accused were admitted to bail in circumstances.

(b) Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.395/34/506---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.20---Dacoity, criminal intimidation and Haraabah liable to Tazir---Bail---Serious and anti-social nature of the offence---Principle---Bail cannot be withheld merely due to the serious and anti-social nature of the offence, if the accused is, otherwise, found entitled to grant of concession of bail.

Munir Ahmed, Advocate for Petitioners.

Advocate-General for the State.

Date of hearing: 15-09-2009.

2010 GBLR 64

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. Syed Jaffar Shah and Muhammad Yaqoob, JJ

In the matter of: UPGRADATION OF JUDICIAL OFFICERS/STAFF AND ALLOWANCES ETC.

S.M.C. Nos.16-17 of 2009, heard on 16th November, 2009.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Arts. 9, 61 & 76---Upgradation of Judicial Officers of the subordinate judiciary---Petitioners had prayed for upgradation of Judicial Officers, Staff and Allowances---Gilgit-Baltistan, was part of Pakistan and by following Judicial Policy enforced in Pakistan, judiciary of Gilgit-Baltistan would certainly be benefited and the disparity in the standard of Judicial Service of Gilgit-Baltistan would certainly be removed which would advance the cause of independent judiciary---Concept of independence of judiciary was not confined only to the person of judicial officers, rather judicial independence mostly depended on administrative and financial independence---Interference of executive in the affairs of judiciary with respect to the prospect of their service and terms and conditions of service directly or indirectly could affect the independence of judiciary---Better service status with better terms and conditions, could ensure the independence of judicial officer to the expectation of a common man---Under Northern Areas Governance Order, 1994 and now under Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, the superior Judiciary of Gilgit-Baltistan had been placed at par to the superior Judiciary of Pakistan and on the basis of same principle, the subordinate judiciary in Gilgit-Baltistan must be treated at par to that of the subordinate Judiciary in the Provinces of Pakistan and it would be fair to follow the Policy of the High Courts in the Provinces of Pakistan regarding upgradation of Judicial Officers in the subordinate Judiciary---With a view to remove the disparity in the status and standard of Judicial Service in Gilgit-Baltistan and to bring at par to the judicial service in the Provinces of Pakistan in the light of principle of fair and equal treatment, Supreme Appellate Court held that Judicial Officers of subordinate Judiciary of Gilgit-Baltistan, would be entitled to the benefit of upgradation---Chief Court Gilgit-Baltistan, in exercise of powers conferred to it under Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009, would initiate the process of upgradation of Judicial Officers of the subordinate Judiciary in the same manner as had been done by the High Court in the Provinces of Pakistan within specified period.?

Sharaf Faridi's case PLD 1994 SC 104 ref.

Advocate-General, Gilgit-Baltistan.

Registrar and Deputy Registrar of Chief Court.

Muhammad Issa and Manzoor Ahmed, amici curiae.

2010 G B L R 69

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

RAZA and another----Petitioners

Versus

GHULAM HAIDER and 7 others----Respondents

C.P.L.A. No. 26 of 2006, heard on 2nd July, 2009.

Specific Relief Act (I of 1877)---

----Ss.39 & 42---Qanun-e-Shahadat (X of 1984), Art. 79---Limitation Act (IX of 1908), Arts. 120, 142 & 144---Gift deed---Proof---Limitation---Fraud---Plaintiffs assailed gift deed on the plea of fraud---Trial Court dismissed the suit but Lower Appellate Court decreed the same in favour of plaintiffs---Chief Court reversed the findings of Lower Appellate Court and dismissed the suit---Validity---Donor denied execution of gift deed and any involvement in transaction of disputed land with defendant---Marginal witness of registered deed stated that he had never put his signatures upon the deed thus the registered gift deed was forged one---Plaintiff instituted suit on the basis of title in year, 1997, the same year when cause of action accrued to him---Defendant admitted the same as adverse possession within a period of three months by submitting a written statement on 16-3-1998---Suit filed by plaintiffs was governed by Art. 144 of Limitation Act, 1908, for possessory relief and declaratory relief governed by ancillary relief under Art.120 of Limitation Act, 1908---Chief Court reached at wrong conclusion by misconception of Limitation Act, 1908---In case of fruad, suits might be filed within a period of 12 years from the date of discovery of fraud, thus suit was well within time---Defendant had been paying Ajara / Batti to donor and admitted by him and corroborated by plaintiff's witness---Donor had granted permission to defendant to enjoy certain privileges, therefore, defendant had permissive possession over the property occupied by him but at no stage he acquired a right to claim adverse possession---Plea of adverse possession was not tenable in the eye of law as such suit of plaintiffs was not hit by Art. 142 of Limitation Act, 1908---Supreme Appellate Court set aside the judgment and decree passed by Chief Court and restored that of Lower Appellate Court---Appeal was allowed.?

Farman Ali Attorney for Petitioners present in person.

Ghulam Nabi Advocate for Respondents.

Date of hearing: 2nd July, 2009.

2010 GBLR 73

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J.

AHALIAN DAYIN through representative and others----Petitioners

Versus

MIRZA----Respondent

C.P.L.A. No.29 of 2008, heard on 11th November, 2009.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 60(13)---Administration of justice---Distribution of water---Parties sought disposal of petition in the light of report of Revenue Officer as permanent settlement and respondents agreed to the disposal of the matter accordingly---Supreme Appellate Court directed the respondents to pay Hashmat (revenue) for the use of water from Nullah (drain) in question in the same manner as other beneficiaries of the Nullah (drain) in the village paid---Petition was disposed of accordingly.

Muhammad Issa, Sr. Advocate for Petitioners.

Malik Shafqat Wali, Sr. Advocate for Respondent.

Date of hearing: 11th November, 2009.

2010 GBLR 75

[Supreme Appellate Court Northern Areas]

Before Muhammad Nawaz Abbasi, C. J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

MALOOK KHAN and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3 of 2009, heard on 9th June, 2009.

(a) Criminal Procedure Code (V of 1898)---

----S. 497(2)---Scope and applicability of S.497(2), Cr.P.C.---Considerations for grant of bail in cases not falling within the prohibitory clause of S.497, Cr.P.C., were different from that of the cases falling under said clause---Bail in cases involving punishment of death or imprisonment for life or for a term of 10 years, was not ordinarily granted, unless the court, on the basis of tentative assessment of the evidence in the hand of prosecution, formed an opinion that the guilt of accused would require further inquiry in terms of subsection (2) of S.497, Cr.P.C.---No general rule existed for grant of bail on the ground of further inquiry, rather the scope of further inquiry in each case depended upon the facts and circumstances of that case---Provision of subsection (2) of S.497, Cr. P. C. could attract in the case of no evidence or the evidence direct or circumstantial was not confidence inspiring or the evidence was not of the standard to sustain conviction, or there was no possibility of ultimate conviction on the basis of evidence brought on Police file or the case was of doubtful nature or on such other ground which could be considered sufficient for further inquiry into the guilt of an accused.

(b) Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---West Pakistan Arms Ordinance (XX of 1965), S.13---Northern Areas Council Legal Framework Order, 1991, Art.19-A---Bail, grant of---Further inquiry---In the present case apart from direct evidence of eye-witnesses, the abscondence of accused persons and recovery of the arms allegedly used by them in the occurrence had been brought on record---Medical evidence was not available to ascertain the cause of death---Fire-arm Expert's opinion regarding the recovered weapon was not part of record, whereas the eye-witnesses had assigned to all accused persons, the same role of combined firing at the deceased---Tentative assessment of evidence in the hand of prosecution would show that the case against accused persons was not distinguishable from that of their co-accused who had since been discharged---Case of accused, in circumstances, would squarely fall within the ambit of S.497(2), Cr.P.C. for the purpose of further inquiry---Investigation of the case was not conducted in fair manner and the element of dishonesty was apparent on the face of record as co-accused on the same set of evidence were declared innocent, whereas accused persons were challaned to face the trial---Petition for leave to appeal was converted into appeal and was disposed of in terms of short order granting bail to accused persons.

?

Malik Haq Nawaz for Petitioners.

A.-G. for the State.

2010 G B L R 79

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

KAMARAN KHAN and 6 others----Petitioners

Versus

SECRETARY FOR KASHMIR AND NORTHERN AREAS AFFAIRS, ISLAMABAD and 4 others----Respondents

C.P.L.A. No. 19 of 2008, heard on 19th August, 2009.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration--Royalty, percentage of---Determination--Concurrent findings of fact by the courts below---Authorities demanded 100% additional royalty from plaintiffs for extracting and transporting timber---Suit and appeal filed by plaintiffs were dismissed by Trial Court and Lower Appellate Court respectively---Chief Court in exercise of revisional jurisdiction maintained the concurrent findings of two Courts below---Validity---Authorities had reviewed / reconsidered their earlier decision regarding enhancement of royalty and had enhanced the rate of royalty on timber by 25% instead of 100% as such authorities could not levy 100% royalty on the timber extracted and transported by plaintiffs---Such crucial point was not discussed by the Chief Court in its judgment, wherein it had been wrongly held that plaintiffs did not challenge the vires of decision regarding enhancement of royalty and from perusal of plaint it appeared that the whole case revolved around such point---Levy of 100% royalty on timber extracted and exported by plaintiffs was not justifiable and the same was declared illegal and authorities might charge the royalty by 25% instead of 100%---Supreme Appellate Court set aside the judgments and decrees passed by three courts below and decreed the suit in favour of plaintiffs---Appeal was allowed.

Muhammad Issa, Advocate for Petitioners.

Advocate-General for Respondents.

Date of hearing: 19th August, 2009.

2010 G B L R 83

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

KHUSH MALIK----Petitioner

Versus

THE STATE----Respondent

Cr. Misc. No.14 of 2009, heard on 20th August, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), 5.302--Gilgit-Baltistan (Empowerment and Selfs-Governance) Order, 2009, Art. 60 (13)---Qatl­-e-amd---Bail, grant of---Further inquiry---Accused sought bail on the plea of his innocence and doubt in his guilt---Validity---Question of, guilt and innocence of accused would be decided in the light of evidence---Supreme Appellate Court, did not find it proper to dilate upon the merits at bail stage, lest it might prejudice the accused or prosecution and directed that after recording of material evidence by Trial Court, accused might, if so advised repeat his request before Trial Court---Bail was refused.

Sharif Ahmed, Advocate for Petitioner.

2010 GBLR 84

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

GUL NAYAB SHAH and 6 others----Petitioners

Versus

NAMKEEN SHAH and 2 others-Respondents

C.P.L.A. No. 23 of 2008, heard on 15th June, 2009.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), O.XXIII, R. 1---Withdrawal of suit---Principle---Lower Appellate Court, during pendency of appeal did not allow plaintiff to withdraw his suit with permission to file fresh but Chief Court allowed the same---Validity---Unconditional withdrawal of suit, under O.XXIII, C.P.C. was possible only in exceptional cases in which no prejudice was caused to opposite party in respect of rights in the subject matter of the suit---Withdrawal of suit at appellate stage with permission to file fresh suit on the same subject was not proper and legal---Permission of unconditional withdrawal would be fair to safeguard the interest of parties---Supreme Appellate Court modified the judgment passed by Chief Court and set aside order regarding amendment of application for withdrawal of suit and directed for unconditional withdrawal of suit---Appeal was allowed.

Mirza Ali Advocate for Petitioners.

Ali Nazar Advocate for Respondents.

Date of hearing: 15th June, 2009.

2010 G B L R 86

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

ALI SARWAR----Petitioner

Versus

Mst. MARYUM and 3 others----Respondents

C.P.L.A. No. 30 of 2008, heard on 7th July, 2009.

Civil Procedure Code (V of 1908)---

----O.XLI, R. 23---Remand of case---Framing of additional issues---Technicalities---Parties agreed to the proposition of law that rights of parties should not be defeated on technical grounds and had consented for framing of material issues and remand of case to Trial Court for determination of bone of contention between the parties to the petition--Effect---Supreme Appellate Court framed additional issues and remanded the case to Trial Court for determination of questions in accordance with law---Supreme Appellate Court directed the Trial Court to provide proper opportunity to parties to bring on record evidence in support of their respective claim and to decide the issues in the light thereof---Findings of remaining points were not in contest---Appeal was allowed.

Muhammad Issa, Advocate for Petitioner.

Muhammad Shafi, Advocate for Respondents.

Date of hearing: 7th July, 2009.

2010 GBLR 88

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

MCB BANK LIMITED through President, MCB Chambers, Karachi and 4 others----Petitioners

Versus

RIZWAN ALI KHAN and another----Respondents

CP.L.A. No.6 of 2009, heard on 19th October, 2009.

Northern Areas Governance Order, 1994---

----Art. 28(3)---Civil Procedure Code (V of 1908), S.20---Dismissal from service---Employee was dismissed from service after issuing him show-cause notice and holding inquiry against him on allegations of financial irregularities and misappropriation---Employee assailed order of his dismissal from service before Chief Court in a writ petition, which petition was allowed with direction of reinstatement of employee in service---Contentions of the employer/Bank firstly was that it was a private Bank and Staff Service Rules of the Bank were not statutory rules to be enforced through the process of writ petition, secondly that relation between the Bank and employee being that of master and servant, writ petition before Chief Court was not maintainable---Validity---Petitioner/Muslim Commercial Bank, admittedly was a private Bank---Alleged financial irregularities were committed by the employee at `Skardu' and inquiry into those irregularities was held at Islamabad whereas the final order of dismissal of employee from service was also passed by the circle office at Islamabad--Notwithstanding the fact that transaction of misappropriation happened at Skardu where petitioner-Bank also carried business, the cause of action would certainly arise in favour of employee out of the order of his dismissal from service which was passed at Islamabad and not at Skardu where transaction of misappropriation of money took place during his tenure as manager---Cause of action in such cases could be referred to the grounds on the basis of which relief was sought and not only with reference to the place of transaction on the basis of which an action was taken---Cause of action wholly or partly arose in favour of the employee within the local limit of courts at Islamabad---Mere fact that the transaction of misappropriation took place in the Skardu branch of the Bank---Contentions would not give rise to the cause of action for the purpose of invoking the jurisdiction of courts in Northern Areas---Employee was aggrieved of the action taken against him by the Bank at Islamabad and final order of dismissal from service was also passed within the local limits of courts at Islamabad---Courts in Northern Areas would have no jurisdiction to adjudicate the matter---Chief Court being not competent to entertain the writ petition and adjudicate the matter for want of jurisdiction, impugned judgment was set aside---Petition was converted into appeal and allowed by Supreme Appellate Court.?

Mian Abdul Rauf, Advocate for Petitioners.

Muhammad Issa, Advocate for Respondents.

Date of hearing: 19th October, 2009.

2010 GBLR 92

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

PROVINCIAL GOVERNMENT through Chief Secretary Northern Areas, Gilgit and 4 others---Petitioners

Versus

KHALIDA KHANUM and 5 others---Respondents

C.P.L.A. No.25 of 2009, heard on 28th October, 2009.

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

----S. 21---Power of government to rescind order---By virtue of S.21 of General Clauses Act, 1897, the power of rescinding an order was available to the government till decisive step was taken and authority competent to pass an order was also empowered to undo such an order---Such power, however could not be exercised in respect of an order which having taken legal effect, had created rights in favour of an individual, unless it was shown that it was void or an illegal order or had been passed without jurisdiction.

Government of Pakistan v. Muhammad Himayat Ullah PLD 1969 SC 407; Engineer-in-Chief Branch v. Jalaluddin PLD 1992 SC 207; Abdul Haque Indhar v. Province of Sindh 2000 SCMR 907 and 2009 SCMR 775 rel.

(b) Northern Areas Council Legal Framework Order, 1994---

----S. 19-A---Petition for leave to appeal---Civil service---Suit filed by employees was dismissed as time barred, but in appeal they succeeded as Appellate Court had decreed the suit---Authorities/employers being aggrieved by the judgment and decree of the Appellate Court filed revision, which was dismissed by Chief Court---Petitioners had filed petition for leave to appeal---Counsel for employers had not been able to point out from the record that either the initial appointment of the employees in BPS-7 or their subsequent upgradation/appointment in BPS-9 on regular basis was illegal or was not in accordance with law---Order of upgradation/appointment of employees in BPS-9 was passed by the competent authority; and same having taken effect had created valuable right in their favour---Subsequent withdrawal of such order, would be out of the ambit of power of competent authority---Authorities having not been able to point out any material illegality or jurisdictional defect in the judgment of the Chief Court calling for interference of the Supreme Court, petition for leave to appeal was dismissed.

A.-G., Gilgit Baltistan for Petitioners.

Sharif Ahmed, Advocate for Respondents.

Date of hearing: 28th October, 2009.

2010 GBLR 95

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob Khan, JJ

PROVINCIAL GOVERNMENT through Chief Secretary N.A. Gilgit and 4 others----Petitioners

Versus

KEHKASHAN BEGUM----Respondent

C.P.L.A. No. 1 of 2009, heard on 7th July, 2009.

Civil Servants Act (LXXI of 1973)---

----S.10---Specific Relief Act (I of 1877), Ss.42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2--Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Interim injunction, grant of---Civil service---Transfer of civil servant---Plaintiff was appointed as lady teacher at place D' and managed to get herself posted at placeG' but later on authorities directed her to report at place `D'---Plaintiff assailed direction of authorities in civil suit but Trial Court as well as Lower Appellate Court dismissed the suit and appeal filed by her---Chief Court, in exercise of revisional jurisdiction, set aside the orders passed by two Courts below and granted interim injunction against order of transfer---Validity---Judgment passed by Chief Court was not well reasoned and was not supported by any law---Concession was extended to plaintiff merely on humanitarian grounds without support of any law---Interest of one individual could not be preferred over the interest of general public, especially female students for whose interest plaintiff was appointed---Civil Court could not interfere in posting / transfer cases as a routine---Chief Court could interfere in such matters when acts of authorities found to be based on mala fide---Plaintiff neither alleged any mala fide nor proved the same---Supreme Appellate Court set aside the order passed by Chief Court and those of Trial Court and Lower Appellate Court were restored---Appeal was allowed.

Advocate-General for Petitioners/Appellants.

Sharif Ahmed, Advocate for Respondent.

Date of hearing: 7th July, 2009.

2010 GBLR 98

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

RESIDENTS OF CHAPORTE BALA through Representatives and 7 others----Petitioners

Versus

RESIDENTS OF CHAPROTE PAIN through Representatives and 2 others----Respondents

C.P.L.A. No. 15 of 2006, heard 7th July, 2009.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 60(13)---Administration of justice---Annual Development programme---Alternate proposal---Dispute was with regard to construction of school at land in question---Government realizing the situation stated that instead of disturbing construction of school building at the site in question, it would also upgrade primary school in question to Middle standard in Annual Development Programme of the current financial year and required funds would accordingly be allocated for construction of Middle School---Authorities had no objection to up-gradation of school and its inclusion in Annual Development Programme for construction of building---Petitioner was satisfied with the proposal and agreed for disposal of petition in terms thereof---Petition was disposed of accordingly.

Muhammad Issa, Advocate for Petitioners.

Advocate-General for Provincial Government.

Secretary Health, Dr. Sohail Saqlain holding acting charge of Secretary Education.

Asad Zamin, Additional Deputy Commissioner for Commissioner.

2010 GBLR 100

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Muhammad Yaqoob, J

KARAKORAM INTERNATIONAL UNIVERSITY through Vice-Chancellor ----Petitioner

Versus

NUMAN BUTT----Respondent

C.P.L.A. No. 8 of 2009, heard on 12th August, 2009.

(a) Administration of justice---

----Fact not brought before the Court of first instance, cannot be allowed to make part of record before next forum or final court.

(b) Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 60(13)---Petition for leave to appeal---Controversial questions of fact---Raising of new plea---Respondent was candidate for the post of Lecturer and he was aggrieved of the result of final selection made by Selection Board of the University---Chief Court in exercise of constitutional jurisdiction directed the authorities to appoint respondent against the post in question---Validity---Chief Court in the light of material before it having elaborately dealt with the controversial question of facts and considering the merits of respondent in written test gave verdict in his favour---University/employer failed to point out any misreading or non-reading of evidence by Chief Court or any error of law in the judgment---Finding of fact could not be interfered with even if it was erroneous or was based on misappropriation of evidence" Legality of judgment could not be challenged before higher court on the basis of facts which were not available on record before the lower court and in the light thereof, Supreme Appellate Court did not entertain and dilate upon new facts and pleas not raised before Chief Court---Supreme Appellate Court did not find any legal or factual infirmity in the judgment of Chief Court and declined to take any exception to the same---Leave to appeal was refused.

Ehsan Ali, Advocate for Petitioner.

Mirza Ali, Advocate for Respondent.

2010 G B L R 104

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob Khan, JJ

GHULAMUDDIN and 10 others----Petitioners

Versus

RAHIM ULLAH and 2 others----Respondents

C. P. L. A. No. 7 of 2009, heard on 2nd September, 2009.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art. 60(13)---Declaration of title---Concurrent findings of fact by the courts below---Supreme Appellate Court, jurisdiction of---Reappraisal of evidence---Trial Court after recording of evidence decreed the suit in favour of plaintiffs, which judgment and decree was also maintained by Lower Appellate Court as well as by Chief Court---Validity---Contention of defendants amounted to request for re-appraisal of evidence to reach different conclusions on the questions of facts different than those arrived at by three courts below---Supreme Appellate Court did not consider it an appropriate case for reappraisal of evidence---No error on question of law was pointed out by defendants for determination and interference with the judgments and decrees passed by the courts below---Leave to appeal was refused.

Ehsan Ali, Advocate for Petitioners.

2010 G B L R 106

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

PROVINCIAL GOVERNMENT through Chief Secretary Northern Areas Gilgit and 6 others----Petitioners

Versus

MUBEEN KHAN----Respondent

C.P.L.A. No. 18 of 2009, heard on 10th August, 2009.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

---Art. 60(13)---Civil service---Termination of service---Contract employee---Initial appointment of respondent on contract was made in year 2005, which continued till termination of last extended period of contract---Chief Court directed the authorities to reinstate respondent in service---Validity---Evidently orders regarding extension of contract of respondent passed from time to time created an impression that competent authority intended to absorb him as regular employee but due to intervention of Advisor, Health of Northern Areas neither order of his continuation in service was passed nor he was informed about termination of his contract---Supreme Appellate Court directed competent authority, without prejudice to the right of respondent, to proceed in the light of departmental practice and procedure strictly in accordance with law---Petition was disposed of accordingly.

Advocate-General for Petitioners.

2010 G B L R 107

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

MUHAMMAD YOUNUS and 2 others----Appellants

Versus

GOVERNMENT OF PAKISTAN through Chief Secretary N.As. Gilgit and 4 others----Respondents

Civil Appeal No.2 of 2008, decided on 1st July, 2009.

Land Acquisition Act (I of 1894)---

----Ss.4 & 6---Civil Procedure Code (V of 1908), O.XV, R.3---Specific Relief Act (I of 1877), S.42---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Acquisition of land---Exchange of land---Judgment without recording of evidence---Suit filed by plaintiff was decreed in his favour by Trial Court under the provisions of O. XV, R.3 C.P.C.---Judgment and decree passed by Trial Court was maintained by Lower Appellate Court but Chief Court remanded the case to Trial Court for decision afresh after recording of evidence---Grievance of plaintiff was that authorities acquired land owned by him but did not pay compensation, whereas authorities contended that they were ready to give land in lieu of the land acquired---Validity---Contention of authorities was neither logical nor valid as there was a specific law for acquisition of land for welfare of public or government purpose---Authorities could acquire any land, if it was needed for public purpose by paying compensation in accordance with the provision of Land Acquisition Act, 1894, but they could not be allowed to adopt novel procedure of providing alternate land without consent of owner of land---Adducing of evidence was right of a party but court could not compel or drag a party for production of evidence---Wisdom behind enactment of provision of O. XV, R. 3, C. P. C. was early disposal of cases on the strength of documentary evidence and to save precious time of court and saving protraction of unwarranted litigation---All issues framed by Trial Court were legal which went into the root of subject matter and did not involve question of facts---Findings of Chief Court regarding illegal exercise of powers of Trial Court were not based on sound reasoning rather the same were based on erroneous reasoning and incorrect exposition of law---Supreme Appellate Court declined to agree with the findings of Chief Court and order passed by Chief Court was set aside and judgment and decree passed by Trial Court was maintained---Appeal was allowed.

Wazir Shakeel Ahmed, Advocate for Appellant.

Advocate-General for Respondents.

Date of hearing: 1st July, 2009.

2010 G B L R 112

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J., Syed Jaffar Shah and Muhammad Yaqoob Khan, JJ

NAJAF SHAH through Akbar Ali Shah and 8 others----Petitioners

Versus

AHALIAN MOUZA KHALTARO through Representatives and others----Respondents

C.P.L.A. No.20 of 2008, heard on 12th August, 2009.

Civil Procedure Code (V of 1908)---

----O.IX, R.13 & O.XVII, R.3---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Ex parte decree, setting aside of---Opportunity to produce evidence---Defendant failed to produce his evidence, therefore, Trial Court passed ex parte decree against him---Chief Court, in exercise of revisional jurisdiction set aside ex parte decree and provided one opportunity to defendant to produce his evidence---Validity---Supreme Appellate Court, with the consent of parties, directed Trial Court that if defendant failed to produce evidence on the date fixed by Trial Court in terms of order passed by Chief Court, the ex parte decree passed by Trial Court would hold the field---Order passed by Chief Court was modified---Petition was disposed of accordingly.

Muhammad Issa, Advocate for Petitioners.

Shafqat Wali, Advocate for Respondents.

2010 G B L R 114

[Northern Areas Supreme Appellate Court]

Present: Syed Jaffar Shah and Muhammad Yaqoob, JJ

MUHAMMAD ALI----Petitioner

Versus

HASSAN----Respondent

Review Petition No.1 of 2009, decided on 2nd November, 2009.

Supreme Appellate Court Rules, 2008---

----O.XXVI---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.65---Civil Procedure Code (V of 1908), S.114 & O.XLVII, R. 1---Review of Supreme Appellate Court judgment---Scope---Petitioner sought review of the judgment passed by Supreme Appellate Court whereby appeal was allowed and case was remanded to Trial Court---Validity---Scope of review was very limited and party could not be permitted to invoke the provisions as a matter of routine---Review could be invoked in extraordinary situation where a decree/order for which no appeal was allowed and secondly on discovery of new and important matter or evidence which after exercise of due diligence was not within the knowledge of party---Petitioner was unable to point out new and important facts / law or evidence, which could be considered for admission of the review petition---Entire evidence and all issues relating to subject matter of the suit had been thoroughly discussed by Full Bench of Supreme Appellate Court---No mistake or error apparent on the face of record had been found by Supreme Appellate Court and the court could not sit as a Court of appeal upon its own judgment under review, merely on the ground that petitioner was aggrieved of the decision---Supreme Appellate Court declined to review its judgment---Review petition was dismissed.

Ghulam Haider, Senior Advocate for Petitioner.

2010 GBLR 116

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

SHAH ZAMAN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.24 of 2008, decided on 4th June, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 392/397/398/402/34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17---West Pakistan Arms Ordinance (XX of 1965), S.13---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Robbery or dacoity with attempt to cause death or grievous hurt assembling for committing dacoity, haraabah and unlicensed sale or possession of arms and ammunition etc.---Bail, grant of---Role assigned to accused was not distinguishable from that of his five co-accused, who had been allowed bail by Supreme Appellate Court---Accused was also entitled to the same relief and discussion of the case in detail was not needed---Petition for leave to appeal was, consequently, converted into appeal and the accused was allowed bail accordingly.

Muhammad Abbas Khan, Advocate for Petitioner.

Advocate-General for the State.

2010 G B L R 118

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Muhammad Yaqoob, J

THE STATE through Advocate-General, N.As.----Petitioner

Versus

ASIF AHMED----Respondent

Cr. Miscellaneous No.21 of 2007, heard on 27th August, 2009.

Criminal Procedural Code (V of 1898)---

----S.497(5)---Penal Code (XLV of 1860), Ss.302/324/34---Anti-Terrorism Act (XXVII of 1997), S.6/7---Qatl-e-amd, attempt to commit qatl-e-amd causing terrorism---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Bail, cancellation of---Parties had agreed on not arguing the application on merits, if Trial Court was directed to conclude the trial within two months---Charge in the case had been framed without any delay, but trial could not be concluded due to some unavoidable circumstances and ultimately bail had been granted to accused---Prolonged delay in conclusion of trial was misuse of process of law and courts and also injustice to the parties---Trial Court was directed to conduct day to day trial, avoid adjournment without compelling reason, adopt coercive measures for attendance of witnesses and conclude the trial within two months---In case of default, complainant or the State could move a fresh application for cancellation of bail against the accused before the Trial Court for decision on merits---Petition was disposed of accordingly.

Advocate-General for the State.

Malik Haq Nawaz, Advocate for the Complainant.

Muhammad Issa, Advocate for Respondent.

2010 G B L R 120

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J. and Syed Jaffar Shah, JJ

IMAM MALIK----Petitioner

Versus

THE STATE----Respondent

Cr. Misc. No. 18 of 2008, heard on 18th May, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.324/34---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Attempt to commit qatl-e-amd---Bail, grant of-Benefit of doubt---Recovery of crime weapon from the accused was doubtful---No specific role was attributed to accused---Record did not disclose as to out of two accused who was the main culprit who had caused injuries to the prosecution witness---No medical report had been provided by the prosecution to show the number, locale and the nature of the injuries caused to the injured witness---Prosecution witnesses had made contradictory statements---Irregular and partial investigation in the case had made the same highly doubtful---Accused was entitled to benefit of doubt even at bail stage---Guilt of accused needed further inquiry---Bail was allowed to accused in circumstances.

Javed Iqbal, Advocate for Petitioner.

Advocate-General for the State, assisted by Muhammad Issa, Advocate.

2010 G B L R 122

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

GULZAR HUSSAIN and 2 others----Petitioners

Versus

THE STATE----Respondent

Cr. Misc.No.13 of 2009, heard on 31st August, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.377/34---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Sodomy---Bail, grant of---Investigating Officer had submitted the challan without collecting the medical report from the Doctor, recording the statement of the victim and holding the identification parade---Evidence had been destroyed by the negligence and inefficiency of the Investigating Officer, which had a direct effect on the prosecution case---Medical Officer had also not prepared his final report, who had initially examined the victim---Version of F.I.R. was not supported by any evidence on record against the accused---Case against accused squarely fell under S.497(2), Cr. P. C. and they were allowed bail in circumstances.

Haji Jamal Khan, Advocate for Petitioners.

Advocate General for the State.

2010 G B L R 124

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J. and Muhammad Yaqoob, J

MUHAMMAD ISSA----Petitioner

Versus

IBRAHIM and another----Respondents

Cr. Misc. No. 13 of 2008, heard on 2nd September, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Penal Code (XLV of 1860), Ss.319 & 316---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Qatl-e-Khata, qatl shibh-e-amd---Bail, cancellation of---Challan was submitted in the court under S.319, P.P.C.---Bail had been granted to accused on the ground that offence under S.319, P.P.C. was bailable---Trial Court, however, framed charge against the accused under S.316, P.P.C. which was punishable with Diyat and imprisonment for a term of fourteen years as Tazir---Bail was sought to be cancelled on the ground that offence under 5.316, P.P.C. fell within the prohibitory clause of S.497(1), Cr.P.C. and as such accused did not deserve bail---Trial Court was yet to determine on the basis of evidence whether the offence against the accused would be made out under S.319, P.P.C. or S. 316, P.P.C. and it was not proper for Supreme Appellate Court to comment upon the nature of offence at the present stage, which might prejudice either side at the trial---Counsel for complainant realizing such situation did not press the present petition and requested for permission to file fresh petition before the Trial Court after material evidence was recorded in the case---Request being reasonable was accepted and the petition was disposed of accordingly.

Muhammad Issa, Advocate for Petitioner.

Haji Jamal Khan, Advocate for Respondent No.1.

Advocate-General for the State.

2010 G B L R 126

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

Mir AJAB KHAN----Petitioner

Versus

JAHANGIR KHAN----Respondent

C.P.L.A. No.11 of 2009, heard on 2nd September, 2009.

Gilgit-Baltistan Prior Purchase Regulation, 1938---

----S.29---Limitation Act (IX of 1908), Arts. 10 & 120---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Right of pre-emption (prior purchase), exercise of---Limitation---Land in question was sold in favour of vendee vide registered sale deed dated 21-10-2003 and pre-emptor filed suit after he got knowledge in October, 2004---Validity---Right of Shuffa (pre-emption) was a feeble right and pre-emptor seeking to exercise such right was bound to perform and fulfil its requirements meticulously---Any failing on the part of pre-emptor performing his obligation would be at his grave risk and could turn out fatal to his success---There were two provisions of law which governed question of limitation in pre-emption suits, first was in S.29 of Gilgit-Baltistan Prior Purchase Regulation, 1938, and later one was Art.10 of Limitation Act, 1908; according to both the laws time period to claim pre-emption or enforcement of right of Prior Purchase was one year from the date of registration of sale deed if any---In case the sale was not so registered within one year, then from the date of delivery of physical possession of property sold---As the case fell within the purview of S.29 of Gilgit-Baltistan Prior Purchase Regulation, 1938, and Art. 10 of Limitation Act, 1908, therefore, there remained no room for applicability of Art. 120 of Limitation Act, 1908---In the present cases, there was registered sale deed which was executed in favour of vendees in the same Tehsil and District wherein pre-empted land was situated---Pre-emptor could not claim any other provision of Limitation Act, 1908, except that provided specifically for the purposes of enforcement of right of pre-emption---Supreme Appellate Court did not find any legal or factual infirmity in the judgment passed by Chief Court---Leave to appeal was refused.

1989 MLD (Lah.) page 318 ref.

Sharif Ahmed, Advocate for Petitioner.

Ali Dad and Javed Akhtar, Advocates for Respondent.

Date of hearing: 2nd September, 2009.

2010 GBLR 129

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Syed Jaffar Shah, J

GUL SAFAID----Petitioner

Versus

THE STATE----Respondent

Cr. Misc.No.9 of 2009, heard on 25th August, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Qatl-e-­amd---Bail, grant of-Accused had been assigned general role of firing along with his co-accused---Statements of eye-witnesses recorded under S.161, Cr.P.C. did not show that as to who out of the two assailants was exclusively responsible for causing the death of the deceased---Reason for discharge of co-accused in the case was not apparent on record---Post-mortem of the deceased was not conducted to ascertain the cause of his death---Weapon of offence recovered from accused was not sent to Ballistic Expert for opinion---Despite issue of bailable and non-bailable warrants, prosecution had failed to produce evidence and early conclusion of trial was not in sight---Detention of accused in jail without trial was not fair---Accused was admitted to bail in circumstances.

Malik Haq Nawaz, Advocate for Petitioner.

Advocate-General for the State.

2010 GBLR 132

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

BAKHT BAIG----Petitioner

Versus

ABDULLAH BAIG and another----Respondents

C.P.L.A. No. 10 of 2009, decided on 18th June, 2009.

Civil Procedure Code (V of 1908)---

----O. IX, R.13---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Ex parte decree, setting aside of---Administration of justice---Ex parte decree passed against defendant was set aside by Trial Court but Lower Appellate Court in exercise of revisional jurisdiction maintained the same---Chief Court restored the order passed by Trial Court---Validity---Person might not be non-suited on the basis of technicalities of law, rather efforts should be made to decide the matter on merits in the interest of justice---Non-appearance of defendants on the date on which ex parte order was passed was not considered a valid ground to pass ex parte decree and consequently Chief Court rightly reversed the order---Chief Court having discussed all aspects of the matter in detail remanded the case to Trial Court for decision on merits and Supreme Appellate Court did not find any valid ground for interference in the order of Chief Court---Leave to appeal was refused.

Muhammad Shafi, Advocate for Petitioner.

2010 GBLR 134

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob Khan, JJ

BADAR MUNIR and another----Petitioners

Versus

THE STATE----Respondent

Cr. Misc. No. 15 of 2009, heard on 26th August, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.324/34---West Pakistan Arms Ordinance (XX of 1965), S.13---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Attempt to commit qatl-e-amd and keeping unlicensed arms---Bail grant of---Further inquiry---F.I.R. showed that four persons including the present two accused had fired an each other, but none out of the two parties had sustained any fire-arm injury---Two co-accused had been released by the police under S.169, Cr. P.C.---Role of firing assigned to all accused was identical in nature---No crime empty having been recovered from the spot, recovery of pistol from the accused had no value---Prosecution had challaned only the present two accused treating them with discrimination---Case of accused, thus, fell within the domain of further inquiry as envisaged by S.497(2), Cr.P.C. and they were allowed bail in circumstances.

Muhammad Issa, Advocate for Petitioners.

Advocate-General for the State.

2010 GBLR 136

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Muhammad Yaqoob, J

PROVINCIAL GOVERNMENT through Chief Secretary, NAs Gilgit and 4 others----Petitioners

Versus

Mir GHULAM SARWAR, SENIOR ADVOCATE NORTHERN AREAS CHIEF COURT and 2 others-.---Respondents

C.P.L.A. No.17 of 2008, heard on 22nd October, 2009.

Gilgit-Baltistan Local Government Ordinance (VI of 1979)--

----S.53---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Arts.60(13) & 71---Development charges---Transfer of immovable property---Issuance of notification---Provincial Government, jurisdiction of---Chief Court in exercise of jurisdiction under Art.71, Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, set aside notification regarding payment of development charges on transfer of immovable property---Validity---Notification was issued by officer of Provincial Government as delegatee, without any resolution of local council and no such resolution was passed by the Council--Issuance of such notification by Provincial Government was beyond the scope of S.53 of Gilgit-Baltistnn Local Government Ordinance, 1979---Supreme Court declined to interfere in the judgment passed by Chief Court---Leave to appeal was refused.

Advocate-General Gilgit-Baltistan.

Manzoor Ahmed, Advocate, Respondent No.3 present in person.

2010 G B L R 138

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Syed Jaffar Shah, J

MUHAMMAD DIYAR and 6 others--Petitioners

Versus

ZAMINDARAN HANZAL through Representatives and 4 others----Respondents

C.P.L.A. No. 28 of 2008, heard on 2nd September, 2009.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), O. XXXIX. Rr. l & 2---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Suit for declaration---Interim injunction, grant of---Raising of construction on the basis of undertaking by defendants---Validity---In view of the statements made by parties, Supreme Appellate Court modified the order of Chief Court with the direction that defendants might complete construction on an area of two kanals of disputed land at their own cost and risk, subject to the condition that on final disposal of suit, building would be treated as property of decree holder and if decree was passed against defendants, they without claiming ownership of building would be allowed to remove their movables and machinery from the premises---Supreme Appellate Court directed the parties to maintain status quo regarding ownership and character of land in dispute except construction on specified area of land, pending final disposal of suit---Petition was disposed of accordingly.

Muhammad Issa, Advocate for Petitioners.

Javed Iqbal, Advocate for Respondents.

2010 GBLR 139

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Muhammad Yaqoob, J

SYED MUHAMMAD----Petitioner

Versus

THE STATE----Respondent

Cr.P.L.A. No.2 of 2009, heard on 22nd October, 2009.

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Qatl-e-amd---Leave to appeal was granted to accused by Supreme Appellate Court to reappraise the evidence in order to appreciate the legal and factual aspects of the controversy in the case.

(b) Penal Code (XLV of 1860)---

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Contradiction in ocular and medical evidence---Effect---Contradictory medical evidence cannot discard the confidence inspiring ocular testimony furnished by truthful witnesses.

(c) Penal Code (XLV of 1860)---

----S.302(b)---Qatl-e-amd---Appraisal of evidence---Sentence, reduction in---Ocular account of occurrence being truthful inspired confidence---Occurrence had taken place in broad daylight---F.I.R. having been lodged without any delay had eliminated the question of false implication---Eye-witnesses had established their presence at the scene of incident, which was not disputed by defence---Accused had been directly charged in the F.I.R. with a specific role---Ocular testimony was consistent---Relationship of eye-witnesses with the deceased was no ground to discard their evidence---Motive for the occurrence had been proved on record---Conviction of accused was maintained---Parties were closely related to each other having no previous enmity with the deceased---Minor contradictions existed between medical and other circumstantial evidence---Death sentence of accused was converted into imprisonment for life with reduction in fine, in circumstances.

Khurshid v. The State PLD 1996 SC 305 ref.

Malik Haq Nawaz, Advocate for Petitioner.

Advocate-General Gilgit-Baltistan.

Haji Jamal Khan, Advocate for Respondent.

Date of hearing: 22nd October, 2009.

2010 G B L R 147

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J.

SHAH DAURAN----Petitioner

Versus

HABIBUR REHMAN----Respondent

Civil Review No.1 of 2008, heard on 12th August, 2009.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art.65---Supreme Appellate Court Rules, 1980, O.XXVI, R.1---Civil Procedure Code (V of 1908), O.XLVII, R.1---Review of judgment of Supreme Appellate Court---Error having material effect---Supreme Appellate Court set aside the order passed by the courts below and directed Trial Court to decide application for setting aside ex parte decree afresh but in judgment under review it was mentioned that ex parte decree had been set aside---Validity---Error pointed out in the judgment was of substantial nature and without its correction remand order would be of no consequence---Supreme Appellate Court directed not to read the words `set aside the decree' as part of judgment under review, which was modified accordingly---Petition was allowed.

Ehsan Ali, Advocate for Petitioner.

Muhammad Issa, Advocate for Respondent.

2010 G B L R 148

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

COLLECTOR SKARDU and 2 others----Petitioners

Versus

Mst. KHADIJA----Respondent

C.P.L.A. No.27 of 2009, heard on 2nd July, 2009.

Civil Procedure Code (V of 1908)---

----O.XXI, Rr.54 & 55---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art. 60(13)---Execution of decree---Removal of attachment---Bank guarantee, furnishing of---Judgment debtor contended that payment of decretal amount would be made within three months---Validity---Execution proceedings before Executing Court continued which would be concluded within three months and subject to furnishing of bank guarantee of scheduled bank, equal to decretal amount by defendants, within fifteen days to the satisfaction of Executing Court, the attachment order would remain suspended, failing which attachment order would become operative automatically---Petition was disposed of accordingly.

Advocate-General for Petitioners.

Ghulam Nabi, Advocate for Respondent.

Chief Engineer for NAPWD, Skardu.

2010 G B L R 149

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

ARSHAD WALI and another----Petitioners

Versus

THE STATE----Respondent

Cr. Misc. No.23 of 2009, decided on 21st October, 2009.

(a) Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/118/212/216---Anti-Terrorism Act (XXVII of 1997), Ss.6/7--Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Qatl-e-amd, conceal­ing the offence, harbouring offender and causing terrorism---Bail, grant of---Occurrence was one of dark night---Prosecution had no eye­witness---Delayed recovery of weapons of offence did not connect the accused with the crime, particularly when the same, though handled by the accused, were not stated to have been used by them in the commission of the offence---Confessional statements of accused if believed to be true and correctly recorded, even then the same could not be made a basis for their conviction in the absence of any direct evidence against them on record---Concession of bail could not be withheld merely on the plea of heinousness of the offence, if the accused were otherwise entitled to grant of bail---Senior police officials had failed to conduct a fair, transparent and untainted investigation in the case---Guilt of accused needed further probe within the purview of S.497(2), Cr. P.C.---Accused were admitted to bail in circumstances.

(b) Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/118/212/216---Anti-Terrorism Act (XXVII of 1997), Ss.6/7---Qatl-e-amd and terrorism---Bail---Heinousness of offence---Principle---Concession of bail cannot be withheld on the plea of heinousness of the offence, if the accused is otherwise found entitled to the same.

Malik Haq Nawaz, Advocate for Petitioners.

Advocate General Gilgit-Baltistan for the State.

2010 G B L R 152

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

BARKAT ALI and another----Petitioners

Versus

AL-RAHIM MULTIPURPOSE COOPERATIVE SOCIETY LIMITED through President and 2 others----Respondents

Civil Appeal No.3 of 2007, heard on 8th July, 2009.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S.5---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Judge of Banking Court---Appointment---Additional District Judge was appointed as Judge in Banking Court---Validity---Defect in appointment of Banking Judge was legal and Additional District Judge was not competent to discharge function of Banking Judge---Supreme Appellate Court restrained the Judge to exercise powers of Banking Judge under Financial Institutions (Recovery of Finances) Ordinance, 2001---Supreme Appellate Court, in view of the importance of the matter, directed Chief Judge of Chief Court to send a reference to Federal Government at an early date, with his recommendation for appointment of Banking Judge in accordance with the provision of S.5 of Financial Institutions (Recovery of Finances) Ordinance, 2001, so that cases pending before Banking Court could be decided by competent court in accordance with law---Appeal was disposed of accordingly.

Ehsan Ali, Advocate for Petitioners.

Ali Nazar, Advocate for Respondents.

2010 G B L R 155

[Northern Areas Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

In re: SUO MOTU CASE

C.M.C. No.4 of 2009, decided on 11th August, 2009.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 61---Original jurisdiction of Supreme Appellate Court---Suo motu powers, exercise of---Non-payment of salaries---Supreme Appellate Court took suo motu notice of news item published in newspaper that hundreds of employees with government department on work charge basis had not been given their salaries---Supreme Appellate Court appointed a Judicial Officer to hold inquiry into the matter and submit his report---Authorities contended that appointments of employees in question were made in violation of rules / regulations by the then Superintending Engineer and the employees did not render any service to department to claim salaries---According to report prepared by inquiry officer, except a few, rest all employees had been working since their appointment---Effect---Superintending Engineer was competent to make appointment of work charge employees, therefore, notwithstanding the objection that appointments were made in violation of rules / regulations, the work charge employees in their own right were entitled to payment of salaries for services rendered by them to department---Authorities concerned instead of proceeding against officials who had committed alleged irregularity in appointments withheld salaries of employees depriving them from their legal right---Withholding payment of legal remuneration of a person was an actionable act in law and aggrieved person could avail legal remedy for recovery of his claim as of right---Inquiry in the matter was held by Judicial Officer and Supreme Appellate Court declined to take any exception to the conclusion drawn therein---Competent Authority could proceed against officers/officials who without any legal justification withheld salaries of work charge employees---Supreme Appellate Court directed that department, without disturbing appointment of work charge employees, might proceed for their regularization and would make payment of their unpaid salaries in terms of inquiry report---Suo motu case was disposed of accordingly.

Advocate-General along with Chief Engineer NAPWD.

2010 G B L R 160

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

In re: UP-GRADATION OF JUDICIAL OFFICERS

Suo Motu Case No.16 of 2009, decided on 16th November, 2009.

(a) Independence of Judiciary---

----Concept---Scope---Supreme Appellate Court desired the Government of Gilgit-Baltistan to make judicial reforms and ensure independence of Judiciary for better administration of justice.

The concept of independence of judiciary is not confined only to the person of judicial officers rather judicial independence mostly depends on administrative and financial independence. The interference of executive in the affaires of judiciary with respect to the prospect of their service and terms and conditions of service directly or indirectly may affect the independence of judiciary. The better service status with better terms and conditions may ensure the independence of judicial officer to the expectation of a common man.

Real purpose of independence of judiciary cannot be achieved without complete judicial, administrative and financial independence. The personal conduct of a judge and impartiality of the courts in the decisions of the cases is equally essential for independence of judiciary as the outside interference or environmental influences may reflect upon the decisions of the courts and may impair the impartiality and independence of the judiciary as an institution.

The sound judicial system is always back bone of strong socio economic and political system which is not only an essential and important organ of the State, but is also a rich source of conducive atmosphere for progress and prosperity in the society. The judicial system in Gilgit-Baltistan is based on time-tested judicial system of Pakistan and the people generally have the trust and confidence in the system, therefore it is legal and moral obligation of the Government of Gilgit-Baltistan to make judicial reforms and ensure independence of the judiciary for better administration of justice in the light of principles laid down by the Supreme Court of Pakistan governing independence of judiciary in Sharaf Faridi's Case (PLD 1994 SC 105), Malik Asad and others v. Federation of Pakistan (PLD 1998 SC 161) and Al Jehad Trust's case (PLD 1996 SC 324).

Provincial Government of Gilgit-Baltistan is under obligation to ensure independence of judiciary in Gilgit-Baltistan in accordance with the policy of law in Pakistan as the complete independence of judiciary in Gilgit-Baltistan as an institution is still not visible in financial matters and this state of affairs may reflect upon the decision of the courts and disturb the judicial system and norms to maintain the independence of judiciary.

The independence of judiciary in the expectations of people lies in their faith of true service and confidence of impartiality of the judicial officers as a member of institution. The concept of administration of justice is based on the principle that justice is not only to be done rather it should also be seen to have been done and unfair conduct of judicial officer in discharge of judicial functions may negate this concept in the administration of justice and rule of law.

The concept of independence of judiciary is recognized in all civilized countries which is not popular concept only in advanced countries or the countries which have written constitution rather the universally recognized concept is that the basic function of the judiciary in a political governance system is settlement of Civil and Criminal disputes between the litigants in an impartial and quite independent manner on the basis of facts of the case, brought before the Court strictly in accordance with fair application of law.

The security of tenure of the judges is most essential for the independence of judiciary as without the protection of tenure a judge may not be able to discharge his duty with free mind. The removal of the judges of the superior courts from the office except in the manner provided in the Constitution of Pakistan and Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, is direct attack on the independence of Judiciary and is serious threat to the rule of law. The protection of the tenure of judges with better terms and conditions of service is essential for their impartiality in the judicial conduct and independence in their functions.

The method of appointment of judges of superior courts and protection of their tenure has close nexus with their independence.

The concept of independence of the judiciary is based on the notion that a judge is free to decide matter before him in accordance to his assessment of facts and understanding of the law without outside influence or amusement and direct or indirect pressure from any quarter. It is thus expected that the judicial authorities must exercise jurisdiction in judicial matters to the entire satisfaction of law and discharge their function quite independently and free of the influence of executive and legislature.

Institution of judiciary due to constant influence of executive could not ensure complete independence in the expectations of the people.

The public confidence in the institution of judiciary cannot be built merely on the basis of publicity or projection of the judgments and the public issues in the judicial seminars and conferences rather the people expect real and substantial justice from the courts of law.

The popular judgments are not always balanced judgments and may not essentially satisfy the requirement of impartiality and neutrality which are basis of concept of independence of judiciary and administration of justice.

The declaring of an action of executive on the policy decision as illegal may be treated a popular decision but practically such decision if is not based on the consideration of rule of law may not advance the cause of independence of judiciary. The general concept of independence of judiciary is that the judicial authorities must discharge their function free from any executive or political influence or institutional environment or personal liking or disliking or any consideration other than the will of law and in an Islamic society the concept of independence of judicial decisions is entirely based on the principle of fairness, equality, complete impartiality and neutrality in, the command of Holy Quran and Sunnah of the Holy Prophet (PBUH).

The independence of Judiciary in the light of extended meaning of the concept of separation of powers is that Legislature and Executive must not interfere in the function of judiciary and must discharge their functions within their respective domain under the Constitution. The concept is that no organ of the State should encroach upon or cross the limit of its jurisdiction and enter into the area of jurisdiction of other organ of the State. The interference of the executive or the legislature in the affairs of the judiciary through administrative action or enactment of laws as the case be may affect the independence of judiciary and lead to conflict between these three branches of the government and also damage the system which is dangerous for the foundation of State.

The concept of independence of judiciary is thus based on the principle that the executive and legislature must exercise the power in a manner in which there is no direct or indirect interference in the affairs of judiciary.

(b) Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Arts. 61---Suo motu jurisdiction of Supreme Appellate Court--Independence of judiciary---Concept---Upgradation of judicial officers of the subordinate judiciary---Petition arose out of the representation filed by the Judicial Officers of the Gilgit-Baltistan subordinate judiciary before the Chief Court Gilgit-Baltistan for an appropriate order for their upgradation in the manner in which the judicial officers of subordinate judiciary in the Provinces of Pakistan and in Azad Jammu and Kashmir had been upgraded---Chief Court forwarded their representation to the KA&NA Division, (KA&GB) Division) Government of Pakistan for appropriate action and on failure to get any decision for a considerable long time, they sought appropriate directions from Supreme Appellate Court by sending a copy of their representation which was treated as an application under Article 61 of the Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009--District & Sessions Judge Gilgit had submitted the representation on behalf of whole Judicial Officers of Gilgit-Baltistan subordinate Judiciary seeking upgradation of the posts of judicial officers in Gilgit-Baltistan judiciary in the manner in which such posts had been upgraded in the four provinces of Pakistan and Azad Jammu & Kashmir, with effect from 1st January, 2008---Held, Gilgit-Baltistan, was part of Pakistan and by following Judicial Policy enforced in Pakistan, judiciary of Gilgit-Baltistan would certainly be benefited and the disparity in the standard of Judicial Service of Gilgit-Baltistan would certainly be removed which would advance the cause of independent judiciary---Concept of independence of judiciary was not confined only to the person of judicial officers, rather judicial independence mostly depended on administrative and financial independence---Interference of executive in the affairs of judiciary with respect to the prospect of their service and terms and conditions of service directly or indirectly could affect the independence of judiciary---Better service status with better terms and conditions, could ensure the independence of judicial officer to the expectation of a common man---Under Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, the superior Judiciary of Gilgit-Baltistan had been placed at par with the superior Judiciary of Pakistan and on the basis of same principle, the subordinate judiciary in Gilgit-Baltistan must be treated at par with that of the subordinate Judiciary in the Provinces of Pakistan and it would be fair to follow the Policy of the High Courts in the Provinces of Pakistan regarding upgradation of judicial officers in the subordinate judiciary---With a view to remove the disparity in the status and standard of Judicial Service in Gilgit-Baltistan and to bring at par with the judicial service in the Provinces of Pakistan in the light of principle of fair and equal treatment, Supreme Appellate Court held that judicial officers of subordinate judiciary of Gilgit-Baltistan, would be entitled to the benefit of upgradation---Chief Court Gilgit-Baltistan, in exercise of powers conferred to it under Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, would initiate the process of upgradation of judicial officers of the subordinate judiciary in the same manner as had been done by the High Courts in the Provinces of Pakistan within specified period.

(c) Constitution of Pakistan (1973)---

----Arts. 1, 189 & 258---Republic and its territories---Gilgit-Balistan by virtue of Art.1(2)(d) of the Constitution, for all intents and purposes is part of Pakistan---Judgments of Supreme Court of Pakistan have more than pursuasive value in Gilgit-Baltistan and also are followed with full effect---Principles.

Gilgit-Baltistan is virtually part of Federation of Pakistan but this area as such is not defined as territory of Pakistan.

In the light of definition of territory of Pakistan in the Constitution of Pakistan, Gilgit-Baltistan by virtue of Article 1(2)(d) of the Constitution of Pakistan for all intents and purposes is part of Pakistan and with the system of self-governance on the basis of provisional setup has internal independence. The Governor Gilgit-Baltistan is representative of the Chairman of Gilgit-Baltistan who is Prime Minister of Pakistan whereas the Chief Minister is Chief Executive of the Government of Gilgit-Baltistan established under Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009.

The territory of Gilgit-Baltistan is considered as a part of Pakistan by virtue of Article 1(2)(d) of the Constitution of Pakistan 1973 and Gilgit-Baltistan (Empowerment and Self-governance) Order, 2009 has the status of an order issued under Article 258 of the Constitution of Pakistan and consequently the judgments of the Supreme Court of Pakistan may have more than persuasive value in Gilgit-Baltistan and also are followed with full effect, therefore, the Provincial Government of Gilgit-Baltistan is under obligation to ensure independence of judiciary in Gilgit-Baltistan in accordance with the policy of law in Pakistan as the complete independence of judiciary in Gilgit-Baltistan as an institution is still not visible in financial matters and this state of affairs may reflect upon the decisions of the courts and disturb the judicial system and norms to maintain the independence of judiciary.

(d) Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Arts.60, 66, & 76---Rules of Business (Gilgit-Baltistan), 2009, Sched. I, Col.3---Constitution of Pakistan (1973), Art.175(3)---Gilgit-Baltistan Supreme Court Appellate Court, Supreme Judicial Council and Chief Court---Status---Nature and Scope---Role assigned to the Law Department of Gilgit-Baltistan, in Rules of Business of Gilgit-Baltistan (2009), in respect of Supreme Appellate Court and Chief Court is in conflict with the Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009--- Supreme Appellate Court directed that entry "Supreme Appellate Court and Chief Court Gilgit-Baltistan" in Column 3, Sched. I of the Rules of Business, 2009 be omitted to bring the said rules at par with the Rules of Business (Pakistan), 1973.

Under Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 the Supreme Appellate Court has been given the status equal to the Supreme Court of Pakistan. This highest judicial forum with the status of apex Court in Gilgit-Baltistan is quite independent in its judicial and administrative functions as envisaged in Article 175 (3) of the Constitution of Pakistan read with Article 60 of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009. The Supreme Appellate Court is also independent in its financial affairs within the allocated budget in terms of circular letter dated 24-11-1993 of Ministry of Finance, Government of Pakistan read with Letter No. F.3 (9)/2005 dated 18-11-2005 issued by the KA&NA Division in pursuance of the judgment of the Supreme Court of Pakistan in the case "Government of Sindh v. Sharaf Faridi" (PLD 1994 SC 105).

Supreme Appellate Court Gilgit-Baltistan having the status of apex Court in Gilgit-Baltistan is equal to the Supreme Court of AJ&K and Supreme Court of Pakistan and is entirely independent in its administrative affairs as well as financial matters within the allocated budget. The appointment of judges of Supreme Appellate Court, Gilgit-Baltistan is made by the Prime Minister of Pakistan in his capacity as Chairman of the Gilgit-Baltistan Council on the advice of Governor and with the consultation of the Chief Judge of the Court. The Chief Court Gilgit-Baltistan has the status equal to the provincial High Courts in Pakistan and in addition to the superintendence and control of subordinate judiciary in Gilgit-Baltistan by virtue of Article 76 of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 is also empowered to deal with the service matters of judicial authorities of subordinate judiciary including their posting, transfer and promotion and disciplinary matters as well as financial affairs. The Judges of Supreme Appellate Court and Chief Court Gilgit-Baltistan are entitled to the same terms and condition of service and privileges to which the judges of superior courts in Pakistan are entitled. They have also the protection of tenure of office as no judge of the Supreme Appellate Court or Chief Court can be removed from his office except in the manner provided in Article 66 of the Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009.

The special forum of Supreme Judicial Council provided under Article 66 of the Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 is an exclusive body to deal with the cases of removal of judges of superior Courts in Gilgit-Baltistan on any ground mentioned therein. The judges of the Supreme Appellate Court and Chief Court Gilgit-Baltistan thus having the guarantee of tenure cannot be removed from their respective offices except in the manner provided in Article 66 of the Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009. The Superior Courts in Gilgit-Baltistan are quite independent in their judicial, administrative and financial matters within the allocated budget and executive authorities have no concern with their affairs, therefore, the role assigned to the Law Department, Government of Gilgit-Baltistan in the Rules of Business in respect of work of Supreme Appellate Court and Chief Court Gilgit-Baltistan is in conflict with the Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009.

In the Rules of Business, 2009 (Government of Gilgit-Baltistan) framed under Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, in Column 3 of Schedule I, the Supreme Appellate Court and Chief Court Gilgit-Baltistan have been shown as Special Institutions under the Head Administrative Departments' and Law Department has been assigned the function of coordination with the work of the Courts. The institution of Supreme Appellate Court and Chief Court in Judicature Chapter of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 are entirely independent with separate entity and have no direct or indirect concern in relation to their functions with any administrative department and consequently the Law department except playing the role of a liaison office cannot in any manner interfere in the affairs of the judiciary. The ambiguity and conflict appearing in Column 3 of Schedule I in the Rules of Business of Government of Gilgit-Baltistan with the provisions of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 relating to the Supreme Appellate Court and Chief Court is against the concept of independence of judiciary, therefore, the entrySupreme Appellate Court and Chief Court Gilgit-Baltistan in the Column 3 of Schedule I of the Rules of Business, (Government of Gilgit-Baltistan), 2009 is required to be omitted to bring these rules at par with the Rules of Business of Federal Government of Pakistan 1973.

Al-Jehad Trust's case PLD 1996 SC 396 and Government of Sindh v. Sharaf Faridi PLD 1994 SC 105 ref.

(e) Rule of law---

----Scope---Rule of law is based on the concept of administration of justice---Principles.

(f) Judicial review---

----Powers of Supreme Court---Scope---Principles.

(g) Islamic jurisprudence---

----Administration of justice--Duty of Qazi or Judge---Principles.

(h) Contempt of Court---

----Initiation of contempt proceedings against a judge of superior Court may lower the dignity and honour not only of the office of judge but also the institution of judiciary---Principles.

(i) Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art.49---Article 49, Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 fully assures the governance in accordance with the principles of Islam---Principles.

(j) Administration of justice---

----Obedience of a lawful order passed by a court is essential and disobedience of such an order must have penal consequences to maintain the authority of court and law.

(k) Islamic jurisprudence---

----Administration of justice---Principles.

(l) Contempt of Court---

----Limitations and qualifications detailed.

(m) Islamic jurisprudence---

----Administration of justice---Duties of executive and judicial authorities stated.

(n) Islamic jurisprudence---

----Administration of justice---Independence of judiciary---Duty of judge in administration of justice elaborated.

(o) Interpretation of Constitution---

----Principles.

A provision of Constitution should not be interpreted in a narrow manner rather it should be given liberal and broad interpretation and to give proper effect to a provision of the Constitution and to avoid conflict of a specific provision of the Constitution with another provision, the principle of harmonious interpretation of the statutes must be followed. This is fundamental principle of constitutional law that a specific provision of the Constitution is not supreme to any other provision of Constitution but the provision which contained the mandate of independence of judiciary has special characteristic because independence of judiciary guarantees the protection of rights of people through the process of judicial determination by the courts.

(p) Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Arts.60 & 69---Constitution of Pakistan (1973), Art.175---Appointment of Judges of superior Judiciary in Gilgit-Baltistan---Supreme Appellate Court observed that Law Department, Government of Gilgit-Baltistan, was required to take up the matter with the concerned quarters for suitable amendments in the Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, to bring the relevant provisions relating to the appointment of judges of Chief Court in consonance to the concept of the independence of judiciary as envisaged in the Constitution of Pakistan in terms of Art.175 thereof.

(q) Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art.78---Administrative Courts and Tribunals---Supreme Appellate Court observed that Provincial Government of Gilgit-Baltistan was required to frame rules with regard to appointments and terms and conditions of service of Special Judges and the Law Department, Government of Gilgit-Baltistan, in consultation with the Chief Judge of the Chief Court, will proceed to frame rules to regulate the judicial service in Gilgit-Baltistan, including the service of Special Judges as part of Judicial Service---Principles.

(r) Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Arts.60 & 69---Rules of Business (Gilgit-Baltistan), 2009, Sched. I, Column 3---Institutions of Supreme Appellate Court and Chief Court as mentioned in the Judicature Chapter of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 were entirely independent with separate entity and had no direct or indirect concern in relation to their functions with any administrative department, consequently the law department except playing the role of a liaison office could not in any manner interfere in the affairs of the judiciary---Ambiguity and conflict appearing in Col. 3 of Sched. I in the Rules of Business (Gilgit-Baltistan), 2009, with the provisions of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 relating to the Supreme Appellate Court and Chief Court was against the concept of independence of judiciary therefore, entry "Supreme Appellate Court and Chief Court Gilgit-Baltistan" in Col. 3 of Sched. I of the Rules of Business, Gilgit-Baltistan, (2009) was required to be omitted to bring the said Rules at par with the Rules of Business of Federal Government of Pakistan---Principles.

(s) Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Arts.60, 61, 63 & 69---Independence of judiciary---Supreme Appellate Court, in the interest of independence of judiciary in Gilgit-Baltistan, issued directions to be complied with by the Government of Gilgit-Baltistan.

The Supreme Appellate Court in addition to the original, appellate and review Jurisdiction, has also advisory jurisdiction and decision of the Court on the question of law is binding on all executive and judicial authorities in Gilgit-Baltistan and these authorities are also bound to act in aid of the Supreme Appellate Court. The Chief Court in addition to the judicial functions also has the power of superintendence and administration of the subordinate courts including the appointment, promotion and transfer of Judicial Officers and their disciplinary matters.

Therefore the complete independence of the judiciary at all level in Gilgit-Baltistan in all respect is necessary for the sound judicial system and provincial government must adhere to the rule of law to ensure the independence of judiciary.

In pursuance of the judgment of the Supreme Court of Pakistan in Sharaf Faridi's Case (PLD 1994 SC 105) read with Letter dated 24-11-1993 of Ministry of Finance, Government of Pakistan, Supreme Appellate Court directed that in the interest of independence of Judiciary in Gilgit-Baltistan the Accountant-General Gilgit-Baltistan may depute an officer not below the rank of Assistant Accounts Officer to discharge his functions of pre-audit in respect of Supreme Appellate Court i.e. the bills etc. and issue of cheques within the allocated budget to eliminate any direct or indirect interference of executive in financial matters of the Court. The Accountant-General may also make similar arrangement to maintain the independence of Chief Court and subordinate judiciary in respect of their financial matters within their allocated budget. To ensure complete independence of judiciary in Gilgit Baltistan the Court issued the following directions and guidelines:---

(1) The Chief Court Gilgit-Baltistan should frame the service rules of Subordinate Judiciary on the pattern of the rules framed by the High Courts in the provinces with necessary modifications and may frame the judicial policy at par with the policy in the provinces of Pakistan.

(2) The Chief Court with a view to improve the functioning of subordinate judiciary may create the post of Senior Civil Judge in the judicial service like the judicial service in the provinces of Pakistan and Azad Jammu and Kashmir to remove disparity.

(3) The Chief Court may also ensure for the establishment of the separate office of Nazir of each district and sub-division and regulate independent process server agency in all Civil Courts of Gilgit-Baltistan so that delay may not be caused in the service of notices and summons.

(4) The administrative affairs of the subordinate judiciary including the posting, transfer and promotion of the judicial officers may be regulated through Administrative Committee for improvement of their performance and also depute inspection judges to monitor the subordinate judiciary.

(5) The Chief Secretary Government of Gilgit-Baltistan may take necessary steps for the establishment of Service Tribunal with Appellate forum as provided in Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 and may also with the consultation of Chief Judge of the Chief Court Gilgit-Baltistan and approval of Ministry of Law, Government of Pakistan establish a separate Banking Court and a Customs Court at Gilgit.

(6) The percentage of 40% and 60% for appointment of judges in the Chief Court provided in Article 69 of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 is not in consonance with the Constitution of Pakistan and the Constitution of Azad Jammu and Kashmir. There is also no provision for temporary increase of judges in the Supreme Appellate Court in the manner as is provided in Article 182 of the Constitution of Pakistan,1973 and Article 42 (8-A) of the Constitution of Azad Jammu and Kashmir, 1974 in the situation mentioned therein. The Chief Secretary may take necessary steps for the amendment of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 in this behalf.

(7) The Provincial Government of Gilgit-Baltistan may take necessary steps for separation of Executive Magistrates from Judicial Officers and establish an independent prosecution branch separate to the Police Department by making appointments of Prosecutors from Bars under the control of Advocate-General or Prosecutor-General.

(8) In the matter of appointment of Judicial Officers in the Subordinate Judiciary through process of selection by Gilgit-Baltistan Public Service Commission a Judge of the Chief Court shall be nominated as representative Member of Commission to ensure participation of judiciary in the selection of judicial posts.

The Chief Secretary with consultation of Chief Judge of the Chief Court may set up separate Labour Courts in pursuance of the judgment of Supreme Appellate Court in CPLA 12 of 2009, All Gilgit-Baltistan Workers Federation v. Federation of Pakistan and others [2010 GBLR 1].

The Provincial Government of Gilgit-Baltistan in the light of law laid down by the Supreme Court of Pakistan in Mehram Ali's Case (PLD 1998 SC 1445) and in pursuance of this judgment may bring the special judge ATA Court at par with the Sessions Judge in the matter of his terms and conditions of service and also fill on priority the vacant position of special judge to expedite the disposal of cases under ATA Act, 1997.

The Law Department, Government of Gilgit-Baltistan may set up a separate Human Rights Wing to attend the complaint of people on Human Rights violation and also allocate special fund for assistance to distress and destitute persons in the manner as in the Law, Justice and Parliamentary Affairs Division, Government of Pakistan.

The subordinate judiciary was functioning in Gilgit-Baltistan on commencement of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 under the control and superintendence of the Chief Court by virtue of Article 20 of Northern Areas Governance Order 1994 and now in pursuance of Article 76 of the Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 read with Article 175 of the Constitution of Pakistan 1973, the Provincial Government of Gilgit-Baltistan is required to issue notification for the separation of the subordinate judiciary from the executive with judicial administrative and financial control of the Chief Court. The annual budget of subordinate judiciary must be allocated through Chief Court in the light of annual requirement of each court.

The Provincial Government will also in pursuance of letter of Ministry of Finance, Government of Pakistan dated 24-11-1993 issue instructions to the Finance and Law Departments for guidance.

Dosso's case PLD 1958 SC 533; PLD 2000 SC 869; Al-Jehad Trust's case PLD 1996 SC 396; Government of Sindh v. Sharaf Faridi PLD 1994 SC 105; Malik Asad and other v. Federation of Pakistan PLD 1998 SC 161; Molvi Tamizuddin's case PLD 1955 FC 240; Shorish Kashmiri's Case PLD 1969 SC 14; Baqi Baloch's case PLD 1968 SC 313; Asma Jilani's case PLD 1972 SC 139; Nusrat Bhutto's case PLD 1977 SC 657; Zafar Ali Shah's case PLD 2000 SC 869; Iqbal Tikka Khan's case PLD 2008 SC 178; Federation of Pakistan v. Haji Muhammad Saifullah Khan PLD 1989 SC 166; Ahmad Tariq Rahim v. Federation of Pakistan PLD 1992 SC 646; Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Benazir Bhutto v. Farooq Ahmad Khan Leghari PLD 1998 SC 388; Sabir Shah v. Federation of Pakistan PLD 1994 SC 738; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 416; Farooq Ahmad Khan Leghari v. Federation of Pakistan PLD 1999 SC 57; Sh. Liaqat Hussain v. Federation of Pakistan PLD 1999 SC 504; Salahuddin Tirmizi v. Chief Election Commissioner and others PLD 2008 SC 735; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 897; Jamat-e-Islami through Amir and others PLD 2009 SC 549; PLD 2010 SC 483 at p.551; Surah Al Nisa; Surah Al-e-Imran; Surah Maida; Government of Baluchistan through Additional Chief Secretary v Aziz Ullah Memon PLD 1993 SC 341; Chandra Mohan v. State of U.P AIR 1966 SC 1987 and State of Asam v. Kusseswar AIR 1970 SC 1617 ref.

Advocate-General Gilgit-Baltistan.

Registrar and Deputy Registrar of Chief Court.

Muhammad Issa and Manzoor Advocates

Date of hearing: 16th November, 2009.

2010 G B L R 242

[Supreme Appellate Court]

Present: Syed Jaffar Shah and Muhammad Yaqoob Khan, JJ

YAWAR HUSSAIN----Petitioner

Versus

ANWAR ALI KHAN----Respondent

C.P.L.A. No.32 of 2009, decided on 10th March, 2010.

(Petition for grant of leave to appeal against the impugned judgment/decree, dated 10-7-2009, passed by Chief Court Gilgit-Baltistan).

Civil Procedure Code (V of 1908)---

----O. VII, R.2 & O.IX, R.13---Limitation Act (IX of 1908), S.5 & Art.164---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Suit for recovery of amount---Application for setting aside ex parte decree---Limitation---Condonation of delay---Suit having been decreed ex parte, defendant filed application for setting aside said decree after more than four months from passing of the same, which was to be filed within thirty days according to Art.164 of Limitation Act, 1908---Counsel for defendant who was in attendance when the ex parte decree was passed, despite the knowledge filed an application under O.IX, R.13, C. P. C. along with application under S.5, Limitation Act, 1908 for condonation of four months' delay after lapse of prescribed limitation---Defendant seeking condonation of delay was required to explain delay of each day beyond period of limitation---General and vague statement in support of condonation of delay would not be sufficient---Grounds advanced by counsel for setting aside exparte decree were neither bona fide nor tenable at the law---Courts below and Chief Court, in circumstances, had rightly dismissed application for condonation of delay.

Sharif Ahmed for Petitioner.

2010 G B L R 245

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Muhammad Yaqoob, J

RAKAPOSHI FLOUR MILLS JAGLOTE through Manzoor Mir and 21 others---Petitioners

Versus

PROVINCIAL GOVERNMENT through Chief Secretary, Gilgit-Baltistan and 3 others---Respondents

C.P.L.A. No. 39 of 2009, decided on 23rd June, 2010.

(Civil Petition for leave to appeal under Article 60(13) Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 against the judgment dated 15-09-2009 and 24-03-2009 passed by the Chief Court Gilgit-Baltistan).

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Arts.10 & 60(13)---Right of freedom of trade and business---Scope---Policy matters---Fixing of price---Subsidy on Ata---Administrative function---Interference of Courts---Petitioners were mill owners and depot holders and were aggrieved of wheat quota provided to them for the purposes of supply of Ata to the people of Gilgit-Baltistan---Validity---Scheme of subsidy on Ata was framed for the benefit of public in general, therefore, mill owners, depot holders and other persons engaged in the process for supply of wheat and Ata to people of Gilgit-Baltistan under the scheme were only entitled to labour and service charges etc. without any profit on the price of Ata to be fixed by government---Every person was free to enter into lawful business with margin of reasonable profit but subsidy scheme of wheat supply in Gilgit-Baltistan was not commercial activity of the nature which created a vested right in favour of mill owners to sell Ata directly in market after grinding wheat which was supplied to them by government under the scheme---Condition of sale of Ata to government by mill owners and Chokar in local market at fixed rate was based on the policy of supply of wheat and Ata to people, therefore, courts were not supposed to interfere in such policy matters and fix price of food items or other commodities---Interference of court in such functions of government would amount to encroach upon the policy decision of government and disturb the concept of independent and good governance---Supreme Appellate Court directed Food department to consider grievance of persons engaged in the business regarding reasonable margin of profit---Supreme Appellate Court, without taking any exception to the direction contained in the judgment passed by Chief Court, directed the government to constitute a committee for ascertainment of the question relating to increase of quota, fair price of wheat, Ata and Chokar in local market with some margin of profit of mill owners and depot holders---Judgment passed by Chief Court was maintained.---Leave to appeal was refused.

Muhammad Issa, Senior Advocate assisted by Malik Shafqat Wali, Senior Advocate for Petitioners.

Advocate-General for Gilgit-Baltistan.

Deputy Director Civil Supply Gilgit.

Date of Hearing: 5th May, 2010.

2010 G B L R 249

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

TOTA JAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 3 and 4 of 2009, heard on 17th November, 2009.

(Petition for Leave to Appeal against the judgment/order of Division Bench of Chief Court, dated 26-8-2009).

Penal Code (XLV of 1860)---

----S.392---Qanun-e-Shahadat (10 of 1984), Art.22---Police Rules, 1934, 8.26.32--- Reappraisal of evidence--- Identification parade---Procedure---Benefit of doubt---Occurrence was alleged to have taken place at about midnight and on the basis of identification parade conducted in police station under the supervision of Naib-Thesildar, accused were convicted under S.392 P.P.C. and were sentenced to seven years of imprisonment---Validity---In absence of any corroborative piece of evidence, prosecution should have carried out identification parade in accordance with procedure / criteria laid down in R.26.32 of Police Rules, 1934 or guidelines laid down by superior courts of country---Procedure adopted by prosecution was novel and un-warranted in law while holding identification parade---No law authorized any investigator to hold identification parade inside police station especially when suspect / accused were visible from the office of Station House Officer, where the identifiers were made seated and possibility to have seen the accused by identifiers before identification parade could not be ruled out---Concerned Station House Officer or Investigating Officer was required to detain the accused in jail without wasting a single moment and without showing them to identifiers--Investigation agency instead of holding identification parade in a fair and transparent manner adopted a self-styled procedure for identification parade, inside the premises of police station in presence of Naib Tehsildar instead of Magistrate First Class---As per identification report, ten dummies were intermingled with two accused in joint identification parade while as per R.26.34 of Police Rules, 1934, nine or ten dummies of similar dress and. of same religion, age and social status were required to be intermingled with one suspect/ accused but the same was not done by Investigating Officer--Identifiers also failed to attribute any role to accused at the time of identification parade---Statements of both the prosecution witnesses were not sufficient for conviction because of non-transparent rather illegal procedure adopted by investigator while conducting identification parade and in absence of other material---Prosecution failed to establish guilt of accused beyond reasonable doubt---Every doubt which could arise, would go in favour of accused and such conviction was not sustainable---Supreme Appellate Court set aside the conviction and sentence awarded to accused by the Trial Court and they were acquitted of the charge---Appeal was allowed.

Johar Ali, Advocate along with Muhammad Abbas Khan Advocate-on-Record for the Appellant.

Deputy Advocate-General for the State.

Date of hearing: 17th November, 2009.

2010 G B L R 255

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Muhammad Yaqoob, J

EMPLOYEES OF NATCO: In re

Suo Motu Case No. 15 of 2009, decided on 6th May, 2010.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 61---Original jurisdiction of Supreme Appellate Court---Scope--Retirement of employees with full benefits---Individual employees of company who were not satisfied with the decision of their retirement could not maintain a petition under S.61 of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 for redressal of their grievance---If such employees were not satisfied with the order of their retirement they could avail appropriate remedy before the proper forum.

Advocate-General, Gilgit-Baltistan.

Muhammad Issa, Senior Advocate assisted by Javed Iqbal, Advocate for NATCO.

Ehsan Ali, Advocate assisted by Mir Ikhlas Hussain, Advocate for Ex-Employees MD NATCO.

2010 G B L R 256

[Supreme Appellate Court]

Present: Muhammad Nawaz Ababsi, C. J. and Muhammad Yaqoob, J

THE STATE---Appellant

Versus

KALAB ALI and 2 others---Respondents

Criminal P.L.A. No. 10 of 2007, decided on 21st April, 2010.

(Petition for leave to appeal against the order/judgment of Chief Court Gilgit-Baltistan dated 5-9-2007).

(a) Penal Code (XLV of 1860)---

----S.302---Criminal Procedure Code (V of 1898), S.164---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60 (13)---Qatl-e-amd---Prosecution contended that Chief Court failed to evaluate confessional statements of two accused duly recorded under S.164 Cr.P.C. and that Chief Court did not take into consideration the recovery of Kalashnikov from accused, the empties and fourteen live rounds positively opined by Forensic Science Department---Prosecution further contended that confessional statement supported by recoveries, as incriminating articles, were sufficient to sustain conviction order by Trial Court---Effect---Leave to appeal was granted by Supreme Appellate Court to consider the contentions of prosecution.

(b) Criminal Procedure Code (V of 1898)---

----S.164 (3)----Confessional statement---Questions to be asked from deponent were that for how long have you been with police; that has any pressure been brought to bear upon you to make confession; that have you been threatened to make confession; that has any inducement been given to you; that why are you making this confession and that have you been maltreated by police---After recording answers of accused to the questions, if Magistrate is satisfied that he is making confession voluntary, then he should proceed to record his confession in verbatim.

(c) Criminal Procedure Code (V of 1898)---

----Ss.164 & 364----Qanun-e-Shahadat (10 of 1984), Arts. 41 & 43---Confessional statement---Object and scope---Judicial insistence---Object behind legal and judicial insistence which is empathetic and firm in meticulous observance of all essential prescribed formalities and pre-courses before recording confession is to provide to confessing accused an environment of absolute freedom from all inside and outside hostile factors which cause or endue fearful consequences in his mind---In case such accused refuses to make confession, unless all signs of such fear as shaded from his mind, the only inference to be drawn would be that confession was not made voluntary, therefore, such confession would be irrelevant and inadmissible in evidence and cannot be made the sole basis for conviction for a capital charge---Combined effect of Ss. 164 and 364 Cr.P.C. read with Arts. 41 and 43 of Qanun-e-Shahadat, 1984, are that before relying on confession of accused two essential requirements must be fully and objectively satisfied firstly that confession is made voluntary and is true and secondly that the same must be proved at the trial---In absence of legal requirements such confession cannot be considered as legal piece of evidence.

(d) Criminal Procedure Code (V of 1898)---

---S.164---Confessional statement---Jurisdiction to record---Magistrate second class is not permitted under S.164, Cr.P.C. to record confessional statement.

(e) Penal Code (XLV of 1860)---

----S.302---Reappraisal of evidence---Benefit of doubt---Recovery memo---Statements of witnesses---Conviction and sentence awarded to accused by Trial Court was set aside by Chief Court---Validity---Although law required immediate dispatches soon after recovery in separate parcels but the said provisions of law had been violated by investigation officer---Out of two marginal witnesses of recovery memo, one witness was not examined while statement of the other was contradictory on material points to recovery memo as well as to the statement of Investigating Officer---In absence of other evidence, mere recoveries would not be sufficient to furnish a foundation for a conviction on capital charge---Prosecution failed to prove the guilt of accused beyond reasonable doubt, therefore, judgment passed by Chief Court was maintained---Appeal was dismissed.

Advocate-General Gilgit-Baltistan for Appellant.

Muhammad Issa, Senior Advocate for Respondents.

Date of hearing: 21st April, 2010.

2010 G B L R 263

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J and Muhammad Yaqoob Khan, J

KHALID ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 3 of 2010, decided on 28th April, 2010.

(Criminal Petition for Leave to Appeal against the impugned order, dated 5-3-2010 passed by the learned Chief Judge Chief Court Gilgit-Baltistan).

Criminal Procedure Code (V of 1898)----

----S.497(2)---Penal Code (XLV of 1860), Ss.324/34---Attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Fatal shot--Determination---Fire-arms expert's report, absence of---Name of accused was mentioned in the F.I.R. lodged by complainant---Recovery of weapon of offence was allegedly made on the pointation of accused--Validity---Tentative assessment of material available on record showed that there was no direct evidence to connect the accused with the crime; it was still to be ascertained that as to whose shot hit the injured persons and there was no firearms expert report with prosecution to ascertain whether fire had been made by the pistol recovered from the accused or not---Such facts had brought the case of accused within the domain of further inquiry within the meaning of S.497(2), Cr. P. C. ---Bail was allowed.

Munir Ahmed, Advocate for Petitioner.

Advocate-General Gilgit-Baltistan for Respondent.

2010 G B L R 266 (1)

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Muhammad Yaqoob, J

MUHAMMAD RIAZ---Petitioner

Versus

CHIEF EXECUTIVE and two others---Respondents

Civil Miscellaneous No. 9 of 2010, heard on 29th April, 2010.

(Petition under Order XXIII of Supreme Appellate Court Rules of 2008 for implementation or its order dated 29-8-2007 passed by this august Court under C. P. L. A. No. 41 of 2006).

Gilgit-Baltistan Supreme Appellate Court Rules, 2008---

----O. XXIII---Petition for implementation of order---Counsel for the petitioner when confronted that petition was not maintainable, he without pressing the same stated that he would file an application for the contempt of Court---Petition was dismissed accordingly.

Malik Shafqat Wali, Senior Advocate assisted by Ehsan Ali and Rehmat Ali, Advocates for Petitioner.

2010 G B L R 270

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

SHORTAGE OF ELECTRICITY: In the matter of

Sou Motu Case No. 1 of 2010, decided on 8th June, 2010.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 61---Shortage of Electricity---Application against---Original jurisdiction of Supreme Appellate Court---Scope---Chief Engineer (water and power) had reported that six new Hydro Power Projects were under construction and on their completion electric shortage problem would be solved---Report had further revealed that load shedding had since been eliminated in Gilgit city and in the surroundings and that uninterrupted electricity was being supplied, for the time being the diesel generators need not to be operated and that amount collected for the purpose of generator fuel would be utilized during the next water season to minimize the load-shedding in Gilgit and suburbs---Position explained in the report had been confirmed by the Chief Engineer in person in the court---Further proceedings in the matter, were not required.

Advocate-General Gilgit-Baltistan.

Chief Engineer, Water and Power Gilgit.

Deputy Secretary, Water and Power Gilgit.

2010 G B L R 271

[Supreme Appellate Court]

Before Muhammad Nawaz Abbasi, C.J. and Muhammad Yaqoob J

MEHARBAN ALI---Petitioner

Versus

SHAKOOR KHAN---Respondent

C.P.L.A. No. 36 of 2009, decided on 29th April, 2010.

(Petition for leave to appeal under Article 60 of Gilgit-Baltistan (Empowerment and Self-Governance Order, 2009) against the judgment dated 25-8-2009 passed by the Chief Court in civil second appeal No.3/2007).

Specific Relief Act (I of 1877)---

----Ss.42 & 8---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Suit for declaration---Revoking of agreement--Concurrent findings of fact by two courts---Non-compliance of order passed by Chief Court---Defendant made part payment and took over the possession of plaintiff's property and thereafter he was delaying payment of remaining consideration amount---Plaintiff filed suit for revoking the agreement and also for recovery of his property---Suit was decreed in favour of plaintiff by Trial Court but Lower Appellate Court set aside the judgment and decree passed by Trial Court---Chief Court in exercise of second appeal, set aside the judgment and decree passed by Lower Appellate Court and restored that of Trial Court---Plea raised by defendant was that plaintiff had failed to provide him agreed area of land---Validity---Defendant was in knowledge that except the patch of land in his possession, plaintiff had no other land in the vicinity---Defendant was in possession of the land along with house, cattle sheds and was enjoying benefits of the land by using delaying tactics---Defendant also failed to comply with the order of Chief Court, wherein he was directed to deposit certain amount till a specific date but he' failed to comply the order of the Court rather he tried to misrepresent the case---Supreme Appellate Court agreed with the judgment and decree passed by Chief Court and the same was maintained---Leave to appeal was refused.

Ehsan Ali, Advocate for Petitioner.

Shah Zaheer Khan, Advocate on special permission for Respondent.

Date of Hearing: 29th April, 2010.

2010 G B L R 276

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

THE STATE---Petitioner

Versus

MASHROOF---Respondent

Criminal Miscellaneous No. 6 of 2010, heard on 14th June, 2010.

(Petition under section 497(5), Cr.P.C. for cancellation of bail and setting aside the order dated 22-4-2010 passed by the Hon'ble Chief Court Gilgit-Baltistan).

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.337-A(i), 337-A(iii), 147 & 148---Shajjah-i-Khafifa and Shajjah-i-Hashmah---Cancellation of bail, petition for---Accused allegedly caused grievous injuries on the person of injured with iron rod---Bail had been granted to accused for the consideration whether in view of nature of injuries the case would fall within the ambit of S.337-A(i), P.P.C. or S.337-A(iii), P.P.C.-Petition was disposed of with observation that in case of misuse of bail by accused in any manner, the State or the complainant, could invoke the provision of S.497(5), Cr.P.C. for cancellation of bail before the Trial Court.

Advocate-General for Gilgit-Baltistan.

2010 G B L R 277

[Supreme Appellate Court]

Present: Syed Jaffar Shah and Muhammad Yaqoob, JJ

HAFIZ-UR-RAHMAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1 of 2010, heard on 22nd March, 2010.

(Petition for leave to appeal against the order/judgment of Chief Court dated 31-12-2009).

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/34/109---Qatl-e-amd--Bail, grant of---Further inquiry---Recovery on joint pointation---Fire­arms Expert report, absence of---Soon after firing, the person who was seen by prosecution witness at place of occurrence, holding pistol in his hand, neither pistol was recovered from that person nor he was figured in challan---Recovery of pistol was shown to have been effected on the pointation of two accused persons---No Fire-arms Expert report was available with prosecution to ascertain as to whether the fire had been made by the pistol recovered from the accused or not---Effect---Case against accused was one of further inquiry into his guilt within the purview of S.497(2), Cr.P.C.---Bail was granted.

Malik Haq Nawaz, Advocate for Petitioner.

Advocate-General Gilgit-Baltistan for the State.

2010 G B L R 280

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Muhammad Yaqoob, J

SHAKIRULLAH alias DOCTOR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 4 of 2010, heard on 21st April, 2010.

(Petition for leave to appeal against the judgment/order dated 13-04-2010, passed by Hon'ble Chief Court).

Penal Code (XLV of 1860)---

----Ss. 302/324/109/34---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Qatl-e-amd; attempt to commit qatl-e-amd and abetment---Delay in conclusion of trial---Case was pending for the last 4/5 years without any progress---Trial Court was directed to submit report to the Registrar of Supreme Appellate Court regarding inordinate delay in conclusion of the trial, within a fortnight for perusal of the Supreme Appellate Court and order in chamber.

Khan Asfand Yar Wali Khan v. Federation of Pakistan PLD 2001 SC 607 and Abdul Aziz Khan Niazi v. The State PLD 2003 SC 668 ref.

Malik Haq Nawaz, Senior Advocate for Petitioner.

2010 G B L R 281

[Supreme Appellate Court]

Before Muhammad Nawaz Abbasi, C. J. and Muhammad Yaqoob, J

HAMAYOON KHAN---Petitioner

Versus

CHAIRMAN PAKISTAN TELECOMMUNICATION, ISLAMABAD and 3 others---Respondents

C.P.L.A. No. 30 of 2009, decided on 4th May, 2010.

(Petition for Leave to Appeal against the impugned judgment/decree dated 19-8-2009, passed by the Hon'ble Chief Court Gilgit-Baltistan).

Civil Procedure Code (V of 1908)---

----O. VII, R.2---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60 (13)---Suit for recovery of money---Concurrent findings of fact by the courts below---Judgment and decree passed by Trial Court was maintained by High Court in exercise of its appellate jurisdiction---Validity---Plaintiff could neither prove any additional work done by him nor any oral agreement between the parties regarding alleged additional work carried out by plaintiff---Concurrent findings of two courts below on material issue were fully supported by evidence on record, therefore, such findings on question of fact were not a result of gross misreading and non-reading of evidence---Both the courts below had rightly dismissed the suit and appeal filed by plaintiff---Leave to appeal was refused.

Sharif Ahmad, Advocate for Petitioner.

Malik Shafqat Wali, Senior Advocate for Respondents.

Date of Hearing: 4th May, 2010.

2010 G B L R 285

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Syed Jaffar Shah, J

MUHAMMAD NASEEM---Petitioner

Versus

ZAFAR IQBAL, MD NATCO and another---Respondents

C.P.L.A. No.2 of 2010, heard on 8th June, 2010.

(Petition for leave to appeal under Article 60(11)(12) of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 against the judgment dated 28-9-2009 by the Chief Court Gilgit-Baltistan).

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

----Art. 129 (e)---Official document---Presumption---If official letter was brought on record and exhibited in evidence without any objection to its genuineness or admissibility, then in absence of such objection, the presumption of correctness was attached with such official document and the same would be read in evidence.

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

----S.42---Qanun-e-Shahadat (10 of 1984), Arts.72 & 76---Suit for declaration---Document, existence of---Proof---Secondary evidence---Presumption---Concurrent findings of fact---Misreading of material evidence---Trial Court decreed the suit in favour of plaintiff and declared his degree of B.A. to be genuine but Lower Appellate Court reversed the finding with regard to genuineness of degree---Judgment and decree passed by Lower Appellate Court was maintained by Chief Court---Validity---Without proof of loss or non-availability of original document, secondary evidence of such document was not permissible but no presumption regarding non-existence of genuine B.A. degree with plaintiff could be raised without examination of original record on the basis of which letter was issued by Controller of Examinations of the University concerned---In absence of any evidence in rebuttal to the letter in question the existence of valid B.A. degree in possession of plaintiff stood proved beyond doubt through the certificate of the Controller of Examinations---Concurrent findings of two courts on the issue of genuineness of the degree was the result of non-reading of material evidence and such findings had no significance as the same were the result of non-reading of material evidence---Supreme Appellate Court set aside the concurrent findings of two courts below and restored that of Trial Court---Appeal was allowed.

Ehsan Ali, Advocate for Petitioner.

Javed Iqbal, Advocate for Respondents.

2010 G B L R 288

[Supreme Appellate Court]

Present: Syed Jaffar Shah and Muhammad Yaqoob, JJ

MUHAMMAD RAWAN and another---Petitioners

Versus

THE STATE through Police Station, Khanbery---Respondent

Criminal Miscellaneous No. 2 of 2010, heard on 20th May, 2010.

(Petition for leave to appeal against the judgment/order dated 17-12-2009 passed by the Chief Court whereby the bail application vide No. Criminal Miscellaneous 127 of 2009 of the petitioners has been dismissed).

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/324/427/431/353/34/---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60 (13)---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, refusal of---Delay in conclusion of trial---Rule of consistency---Applicability---Accused persons were directly charged in promptly lodged F.I.R.; occurrence had taken place in broad daylight; recovery of weapon of offence was made soon after the occurrence; motive of commission of offence was established and occurrence was seen by three witnesses including two injured persons whose statements had been recorded without any inordinate delay---Accused raised the plea of delay in conclusion of trial and principle of consistency---Validity---Challan was submitted on 24-9-2008 and thereafter case could not proceed either due to non-availability of defence counsel, District Attorney or due to absence of Presiding Officer---Such delay could not be attributed to the prosecution solely and the same could not be a good ground for grant of bail in absence of any specific provision---Order granting bail to co-accused was under challenge and was sub judice---Tentative assessment of available material showed that a prima facie case was made out against accused, therefore, Supreme Appellate Court declined to grant bail to accused persons---Leave to appeal was refused.

Ehsan Ali, Advocate assisted by Rehmat Ali, Advocate for Petitioners.

Advocate-General Gilgit-Baltistan for the State.

Malik Haq Nawaz, Advocate for Complainant.

2010 G B L R 291

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J. and Muhammad Yaqoob, J

Syed MAZHAR ALI SHAH and others---Petitioners

Versus

VC KIU and others---Respondents

Civil Review Petitions Nos. 2, 3 and 6 of 2008, heard on 29th April, 2010.

(Review petition against the judgment dated 20-9-2008 passed by this honourable court in C.P.L.A. No 07/2008).

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art.65---Gilgit-Baltistan Supreme Appellate Court Rules, 2008, O.XXVII---Review of Supreme Appellate Court Judgment---Principles of natural justice---Fair treatment---Dispute was with regard to selection of candidates against vacancies in Karakurum International University---Validity---Rule of fair treatment and natural justice would demand that candidates who qualified the interview on the basis of 40% aggregate Marks had acquired a legitimate right of selection on their own merits and should have been dealt with accordingly---Similarly the candidates who were appointed on contract basis in prescribed manner would be entitled to be considered for regular appointment in their own right on the basis of their contract service---Supreme Appellate Court directed the Registrar of the University to place the cases of petitioners before Selection Board for final selection on merits and in the light of recommendations of Selection Board the competent authority would make appointment accordingly---Supreme Appellate Court modified the judgment passed by Chief Court---Review petition was disposed of.

Malik Shafqat Wali, Senior Advocate assisted by Shrif Ahmed Advocate for petitioners (in Review Petition No. 2 of 2008).

Muhammad Issa, Senior Advocate assisted by Haji Mirza Ali Senior Advocate for Petitioners (in Review Petition No. 6 of 2008).

Ehsan Ali Advocate assisted by Mir Ikhlaq Husain Advocate representing KIU.

Haji Mirza Ali Sr. Advocate for Respondents (in Review Petition No. 3 of 2008).

Date of Hearing: 29th April, 2010.

2010 G B L R 295

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J. and Syed Jaffar Shah, J

ASHFAQ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 26 of 2009, heard on 22nd April, 2010.

(Criminal Petition for grant of leave to appeal against the impugned judgment/order dated 14-10-2009, passed by the Division Bench of Gilgit-Baltistan Chief Court Gilgit, in Criminal Miscellaneous No. 60/2009).

Criminal Procedure Code (V of 1898)---

----Ss. 164 & 497(2) ---Penal Code (XLV of 1860), Ss.302/324/34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Rule of consistency---Failure to hold identification parade---Prosecution witnesses in their statements under S. 164 Cr.P.C. ascribed an identical role to all accused but Trial Court enlarged others, except the accused--Recovery of weapon of offence was made from co-accused who was directly charged in the F.I.R.---Prosecution also recorded statement of injured witness who was a natural witness of the occurrence but he did not identify any person while opening fire---Injured prosecution witness in his statement under S.161, Cr.P.C. claimed that he was in a position to identify assailants if they were produced before him but prosecution did not bother to hold identification parade to bring the real truth on record---Effect---Case against the accused called for further inquiry as contemplated in S.497(2), Cr. P. C. ---Bail was allowed.

Johar Ali, Advocate for Petitioner.

Advocate-General Gilgit-Baltistan for Respondent.

2010 G B L R 299

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Syed Jaffar Shah, J

JAMSHEED KHAN and others---Petitioners

Versus

PROVINCIAL GOVERNMENT and others---Respondents

C.P.L.A. No. 1 of 2010, heard on 9th June, 2010.

Civil Procedure Code (V of 1908)---

----O. VI, R.17---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60 (13)---Amendment of pleadings---Setting-up of new case---Application for amendment in pleadings was filed for the first time during pendency of revision petition before Chief Court and the same was dismissed---Validity---Petitioner had neither questioned validity of allotment of respondents at an early stage nor pleaded in the suit that it was a case of double allotment, therefore, he could not be allowed to set up a new case with change of character of suit at such stage---Supreme Appellate Court did not find any substantial ground or reason for interference in judgment of Chief Court---Leave to appeal was refused.

Malik Shafqat Wali, Senior Advocate for Petitioners

Advocate-General Gilgit-Baltistan for Respondents

Muhammad Hussain Shahzad, Advocate for Respondents Nos.4 to 6.

Date of hearing: 9th June, 2010.

2010 G B L R 301

[Supreme Appellate Court]

Present: Syed Jaffar Shah and Muhammad Yaqoob, JJ

THE STATE----Petitioner

Versus

SHAH HUSSAIN---Respondent

Criminal Miscellaneous No. 21 of 2009, heard on 6th April, 2010.

(Petition for Leave to Appeal from the order, dated 17-8-2009 passed by the NA Chief Court in Criminal Miscellaneous No. 78 of 2009).

Criminal Procedure Code (V of 1898)---

----S.497(5)---Penal Code (XLV of 1860), Ss.337-A(v) & 336---Shajjah­-i-ammah and itlaf-i-salahiyyat-i-udw---Bail, cancellation of---Head injury---Medical report showed that skull of injured girl was fractured due to severe head injury---Offence committed by accused, prima facie, fell within the mischief of Ss.336 and 337-A(v) P.P.C. which provided maximum sentence of ten and fourteen years imprisonment respectively and fell within the prohibitory clause of S.497, Cr.P.C.---Chief Court had wrongly found that accused was entitled to grant of bail on the ground of further inquiry as the case of accused was not a case of further inquiry as contemplated under S.497(2), Cr. P. C. ---Order passed by Chief Court was set aside and bail granted to accused was cancelled---Appeal was allowed.

Advocate-General for the State.

Malik Shafqat Wali, Senior Advocate, assisted by Haji Jamal Khan, Advocate for Respondent.

2010 G B L R 305

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

NATIONAL BANK OF PAKISTAN through Coordinator Sub-Region Office, Gilgit

and others---Petitioners

Versus

KARIM AHMED SHAH and others---Respondents

C.P.L.As. Nos. 40 to 43 of 2010, heard on 17th March, 2010.

(Petition for leave to appeal against the impugned judgment dated 13-10-2009 passed by Chief Court Gilgit-Baltistan).

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Arts.37 (2) (g) & 60 (13)---Election---Disqualification of candidate--Bank defaulter---Determination---Aggrieved person---Scope---Financial institution, locus standi of---Nomination papers of respondents were rejected by Returning Officer on the basis of record provided by financial institution---Chief Court set aside the order passed by Returning Officer and declared the respondents to be qualified to contest the election---Financial institution assailed the order passed by Chief Court on the plea of respondents being bank defaulter---Validity---Objection regarding disqualification of respondents as candidates in election on the basis of their financial liability was not raised either by their opposing candidate or any other person from their respective constituency, therefore, financial institution had no right under election laws to challenge their candidature---Any person who was not directly or indirectly affected by any order passed by an authority, was not an aggrieved person to have any right or locus standi to challenge such order---Financial liability of a person of public organization might provide a ground for disqualification of such person to hold public office if that person was adjudicated "defaulter" under law and in absence of such evidence of default the declaration regarding qualification of that person to contest election by a court might not infringe right of financial institution / organization to avail the remedy for recovery of loan from defaulters---Financial institution on the basis of financial liability of respondents might have no personal right to raise objection before the election authorities regarding their qualification to become candidates in election and were not aggrieved person against order of acceptance of nomination papers of respondents---Supreme Appellate Court declined to interfere in the order passed by Chief Court---Leave to appeal was refused.

Advocate-General, Gilgit-Baltistan.

Muhammad Hussain Shahzad, Advocate for Petitioners.

2010 G B L R 311

[Supreme Appellate Court]

Present: Syed Jaffar Shah and Muhammad Yaqoob, JJ

GHULAM QADIR---Petitioner

Versus

GHULAM ABBAS and another---Respondents

C.P.L.A. No. 13 of 2009, heard on 31st March, 2010.

(Application for grant of Leave to Appeal against the judgment/order, dated 22-4-2009 passed by the Hon'ble Judges Northern Areas Chief Court Gilgit).

Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009---

----Art. 60(13)---Administration of justice---Principles of natural justice---Ex parte order for cancellation of registration book of vehicle in question was set aside by Chief Court---Validity---Despite written request to Motor Registration Authority that respondent would appear before him after Eid-ul-Fitr, without giving opportunity to respondent to meet frivolous and concocted allegations levelled by petitioner and before expiry of stipulated period mentioned in final notice, the Authority illegally cancelled duplicate copy of registration book, which act of the Authority was ex parte, unheard and against the precious rights of respondent---Chief Court had rightly set aside the order passed by Motor Registration Authority---Supreme Appellate Court declined to interfere in the order passed by Chief Court---Leave to appeal was refused.

Sharif Ahmad, Advocate for Petitioner.

Javed Iqbal, Advocate and S.M. Mohsin Hamdani, Advocate for Respondents.

Syed Yasir Hussain, ETO (Excise & Taxation Officer), District Gilgit.

Date of hearing: 31st March, 2010.

2010 G B L R 314

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Muhammad Yaqoob, J

SALAMAT JAN---Petitioner

Versus

DEPUTY COMMISSIONER, GILGIT and another---Respondents

C.P.L.A. No. 8 of 2009, heard on 6th May, 2010.

(Petition for Leave to Appeal against the judgment, dated 29-3-2010 passed by the Chief Court, Gilgit-Baltistan in C.A. No. 6 of 2009).

Specific Relief Act (I of 1877)---

----Ss.42, 54 & 56---Civil Procedure Code (V of 1908), O. VII, R.11, O.XXXIX, Rr.1 & 2---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60 (13)---Interim injunction, grant of---Official business---Supply of vehicles---Dismissal of plaint---Failure to reject plaint---Plaintiff was aggrieved of awarding of contract for supply of vehicles to defendant and sought bifurcation of supply of vehicles on the basis of lowest bids in different categories of vehicles---Validity---Vehicle-wise bid was called in tender notice and contract was to be awarded accordingly, was not supported by any evidence on record rather condition of increase or decrease of vehicles on the basis of future need would show that Authorities had reserved the right to change the terms of bid or the contract---Courts were not supposed either to change the terms of tender notice or bifurcate the contract on the basis of vehicle-wise bid---Interim injunction in the form of restraining order in the contract of supply of vehicles might disturb official business of concerned department which was against the policy of law, therefore, the same was rightly refused---Supreme Appellate Court declined to interfere in such order---Trial Court while disposing of application for temporary injunction without rejecting the plaint also dismissed the suit, such summary dismissal of suit without rejecting the plaint was not legal and the same was set aside---Supreme Appellate Court remanded the matter to Trial Court for decision in accordance with law---Petition was disposed of accordingly.

Muhammad Issa, Senior Advocate assisted by Shafqat Wali Senior Advocate for Petitioners, Advocate-General, Gilgit-Baltistan.

Munir Ahmed, Advocate for Respondents.

2010 G B L R 317

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Muhammad Yaqoob, J

ISLAMIC INVESTMENT CO-OPERATIVE SOCIETY, ALIABAD through Manager---Petitioner

Versus

SULTAN ISHAQ, EX. GENERAL MANAGER, ISLAMIC CO-OPERATIVE SOCIETY and another---Respondents

C.P.L.A. No.3 of 2010, heard on 4th May, 2010.

(Petition for Leave to Appeal under Article 60 of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, against the judgment dated 14-12-2009, passed by the Chief Court).

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for declaration---Rejection of plaint---Framing of preliminary issues---Principle---Jurisdiction of court---Application for rejecting of plaint was dismissed by Trial Court but Lower Appellate Court reversed the finding and directed plaintiff to deposit disputed money in court otherwise plaint would stand rejected---Chief Court dismissed second revision filed by plaintiff resultantly suit was dismissed---Validity---Trial Court dismissed the application filed by defendant without framing of issues---In appealable cases findings should be given after framing of issues, even though it might be un-necessary to decide the same for the purposes of decision arrived at but courts below failed to frame preliminary issue regarding `jurisdiction of civil court"---Findings / judgments of Lower Courts did not have any legal sanctity in accordance with law---Universally recognized principle of law to frame issues and followed by judgment based on discussing every issue in detail had been overlooked by both the courts below---Courts should not travel beyond pleadings / record available on file, decision should be based on the case as pleaded---Chief Court had travelled beyond the scope and object of case pleaded by parties---Supreme Appellate Court set aside the judgment and the decree passed by Chief Court and remanded the matter to Trial Court for decision afresh---Appeal was allowed.

Ehsan Ali, Advocate for Petitioner.

Johar Ali, Advocate for Respondents.

2010 G B L R 322

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

JUDGES OF CHIEF COURT: In the matter of

Suo Motu Case No. 2 of 2010, decided on 7th June, 2010.

Chief Court Establishment Order (1998)---

----Art. 8---Northern Areas Governance Order, 1994, Preamble---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60 (13)---Judges of Chief Court---Entitlements---Judges of Chief Court sought declaration that they were entitled to same salary and allowances which was admissible to Judges of High Court of A J & K--Validity---Northern Areas Governance Order, 1994, was of the status of fundamental law and Chief Court was established thereunder read with Chief Court Establishment Order, 1998, as the highest judicial forum in Northern Areas---Chairman and Members of Chief Court, by virtue of amendment made in year, 2007 in Northern Areas Governance Order, 1994, were awarded status of Chief Judge and Judges of High Court of AJ&K for the purpose of pay and allowances and other privileges---Notwithstanding the issue of formal notification from a subsequent date, Judges of Chief Court would be entitled to same salary and allowances from the date of change of their nomenclature through the amendment in Northern Areas Governance Order, 1994---Supreme Appellate Court directed Law Department to accordingly initiate process for approval of judicial allowance from the date on which Chairman and Members of Chief Court joined service and salary admissible to them as Chief Judge and Judges of Chief Court from the date of amendment in Northern Areas Governance Order, 1994 in year, 2007---Petition allowed accordingly.

Haji Mirza Ali, Senior Advocate for Petitioners.

Advocate-General, Gilgit-Baltistan

2010 G B L R 325

[Supreme Appellate Court]

Present: Syed Jaffar Shah and Muhammad Yaqoob, JJ

GHULAM QADIR---Petitioner

Versus

GHULAM ABBAS and another---Respondents

Civil Revision No. 2 of 2010, decided on 18th May, 2010.

(Review Petition under Rule 27 Supreme Appellate Court Gilgit-Baltistan read with S.114 and Order XLVII, Rule, 1, C.P.C. against the judgment/order dated 31-3-2010).

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 65---Gilgit-Baltistan Supreme Appellate Court Rules, 2008, O.XXVII---Civil Procedure Code (V of 1908), S.114 & O.XLVII, R.1---Review of Supreme Appellate Court judgment---Petitioner had sought, review of judgment, whereby court while maintaining the judgment of Chief Court had dismissed petition for leave to appeal---Points raised by the counsel for the petitioner had already been discussed and dilated upon in the impugned judgment in a comprehensive manner---Counsel for the petitioner could not point out any mistake or error on the face of record for review of the impugned judgment---Petition for review was dismissed.

Haji Jamal Khan, Advocate-on-Record for Petitioner.

2010 G B L R 326

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J. and Muhammad Yaqoob, J

HASSAN SHAH---Petitioner

Versus

SHAHZADA KHAN and another---Respondents

C.P.L.A. No. 33 of 2009, heard on 26th April, 2010.

(Petition for Leave to Appeal against the judgment, dated 25-8-2009 passed by the Chief Court in Writ Petition No. 40 of 2006).

Civil Procedure Code (V of 1908)---

----O. XVI, R.1(2)---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Application for summoning the witness---Application under O.XVI, R.1(2), C.P.C. neither disclosed any reason for not including the name of witnesses mentioned in the list of witnesses nor that evidence of those witnesses was necessary for just decision of the case---Complete particulars of the witnesses were not mentioned in the application; it appeared that petitioner by moving such an incomplete and vague application, intended to prolong the proceedings in the suit---Counsel for the petitioner had not been able to point out any jurisdictional error or illegality in the order calling for interference of the Supreme Appellate Court---Petition for leave to appeal was dismissed.

Muhammad Issa, Senior Advocate for Petitioner.

Muhammad Shafi, Senior Advocate for Respondents.

2010 G B L R 328

[Supreme Appellate Court]

Present: Syed Jaffar Shah and Muhammad Yaqoob, JJ

TAJAN---Petitioner

Versus

ABDUL MAJEED and the State---Respondents.

Criminal P.L.A. No. 1 of 2010, decided on 12th April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 526---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Transfer of criminal case---Conversion of petition into appeal---Petition for leave to appeal had been directed against the order passed by the Chief Court, whereby Chief Court had transferred the sessions case from court at place D' to that of court at placeG'---Only ground for transfer of the case was that of inconvenience of the complainant and danger to his life at the hands of accused who was stated to be an influential person of the locality---Since both the parties were not residents of the city where the case was under trial, the reasons for transfer of the case were of no substance---Order transferring case passed by the Chief Court, was neither speaking nor based on any reasons---Chief Court having not exercised its jurisdiction judiciously, impugned order was set aside by converting petition for leave to appeal into appeal and allowed.

Advocate-General Gilgit-Baltistan.

Malik Haq Nawaz, Senior Advocate for Petitioner.

Jouhar Ali, Advocate for Respondent.

2010 G B L R 329

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

Syed SAROOSH HAIDER RIZVI and 3 others---Petitioners

Versus

NAB and 2 others---Respondents

C.P.L.A. No. 24 of 2009, heard on 29th October, 2009.

(Writ Petition under Article 60(13) of the Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 against the judgment dated 8-9-2009).

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 60(13)---Petition for leave to appeal-Non-prosecution of petition---No one having appeared on behalf of the petitioners, petition was dismissed for non prosecution.

2010 G B L R 330

[Supreme Appellate Court]

Present: Syed Jaffar Shah and Muhammad Yaqoob, JJ

MUHAMMAD---Petitioner

Versus

ABDUR REHMAN---Respondent

C.P.L.A. No. 29 of 2009, decided on 30th June, 2010.

(Petition for leave to appeal against the judgment/order/decree dated 11-8-2009 passed by the Hon'ble Chief Court).

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 60(13)---Partition of property---Both parties through Musalihatnama had agreed for partition of their ancestral, including the gifted and other lands through Revenue Staff---Musalihatnama was directed to be made rule of the court and Deputy Commissioner concerned was also directed to partition the landed property in terms of Musalihatnama through Revenue Staff within a period of 3 months.

Muhammad Issa, Senior Advocate for Petitioners.

Shoukat Ali, Senior Advocate for Respondent.

2010 G B L R 331

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J. and Muhammad Yaqoob, J

CLIC---Petitioner

Versus

PAK. CHINA C&MC. (PVT.) LTD.---Respondent

C.P.L.A. No. 21 of 2009, decided on 22nd June, 2010.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 60(13)---Order passed by the Chief Court for furnishing bank guarantee had not been complied with and in consequence Trial Judge attached 10% retention amount of the bond deposited by the petitioner with the department---Counsel for the respondent placing copy of that order on record had submitted that petition could be dismissed---Counsel for the petitioner conceding the order passed by the Trial Court, submitted that he would not further press the petition, rather would avail the remedy in due course of time---Petition for leave to appeal was dismissed as not pressed.

Muhammad Shafi Senior Advocate for Petitioner.

Amjad Hussain Advocate Chief Court with special permission.

2010 G B L R 332

[Supreme Appellate, Court]

Present: Syed Jaffar Shah and Muhammad Yaqoob, JJ

MEHBOOB ALAM LONE---Petitioner

Versus

CHIEF JUDGE GILGIT-BALTISTAN CHIEF COURT, GILGIT and 2 others---Respondents

C.P.L.A. No. 6 of 2010 and Civil Miscellaneous No. 6 of 2010, decided on 8th April, 2010.

(Petition for Leave to Appeal under Article 60(13) of the Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 against the impugned order dated 15-3-2010 passed by the Gilgit-Baltistan Chief Court, Gilgit).

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 60(13)---Petition for leave to appeal---Counsel for the petitioner sought permission for withdrawal of petition to file a petition on fresh cause of action in the Chief Court---Request was allowed and petition was dismissed as withdrawn.

Shafqat Wali, Senior Advocate for Petitioner.

2010 G B L R 333

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J.

MUHAMMAD GHAFAR and others---Petitioners

Versus

ZAMINDARAN BIRGAL through representatives and others---Respondents

C.P.L.A. No. 11 of 2010, decided on 6th May, 2010.

(Petition for leave to appeal against the order dated 25-3-2010 passed by the Chief Judge Chief Court Gilgit-Baltistan).

Civil Procedure Code (V of 1908)---

----O. XXI, R.15 & S.115---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Execution of decree by joint decree-holders, application for---Petitioners had sought execution of the compromise decree passed in a representative suit involving the dispute in respect of shamlat land---Contention of the petitioners was that decree in such a suit would be deemed to have been passed in favour of all co-owners/co-sharers in the propriety body of the village; and since the suit land was shamlat land which was joint property of all the owners in the village, the decree was joint for the purpose of execution---Petitioners on the basis of their ownership in the village had claimed possession of land of their share of the shamlat land in question seeking execution of decree passed in a suit in which petitioners were not party---Counsel for the petitioners when was pointed out that a stranger in the suit without determination of his right in the suit property, would have no locus standi to claim such right in execution proceedings; and in any case, the decree in question could not fall within the definition of joint decree' in terms of O.XVI, R.15, C.P.C. for the purpose of execution, he without further pressing the petition, submitted that they would avail the appropriate remedy before the proper forum for the possession of land of their share---Petition for leave to appeal was dismissed as not pressed.

Muhammad Hussain Shehzad, Advocate for Petitioner.

2010 G B L R 335

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

PROVINCIAL GOVERNMENT through Chief Secretary, Gilgit-Baltistan and 4 others--Petitioners

Versus

KHALID MEHMOOD and 64 others---Respondents

C.P.L.A. No. 4 of 2010, heard on 16th March, 2010.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 60(13)---Petition for leave to appeal---Advocate-General during the course of arguments, when confronted that the case before the Chief Court was still in adjudication and that the petitioner could raise all issues at the final stage before the Chief Court, he, without further pressing the petition, requested for withdrawal of the same reserving the right of raising the point taken in the petition before the Chief Court---Petition for leave to appeal was accordingly disposed of as withdrawn.

Advocate-General for, Gilgit-Baltistan.

Ali Nazar, Advocate-on-Record for Petitioners.

2010 G B L R 336

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Muhammad Yaqoob, J

OFFICER COMMANDING 182 PETROLEUM STORAGE PLATOON ARMY SERVICE JUGLOT, GILGIT and another---Petitioners

Versus

ALI MUHAMMAD and others---Respondents

C. P. L.A. No. 22 of 2009, decided on 16th June, 2010.

(Application for grant of Leave to Appeal against the judgment/decree dated 25-5-2009, passed by the Hon'ble Chief Court Gilgit).

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

----Ss.42 & 54---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Suit for declaration and permanent injunction---Authorities issued letter to the plaintiff for recovery of amount as arrears of land revenue---Feeling aggrieved with said letter, plaintiff filed suit on the ground that amount in dispute was not recoverable as arrears of land revenue as the Provincial Government did not declare through notification the alleged dues as arrears of land revenue---Trial Court framed few issues without applying its mind towards the main and core issue of jurisdiction of Authorities to order the collection of dues as land review and dismissed the suit---Appellate Court maintained the judgment and decree of the Trial Court---Chief Court accepted the revision and concurrent findings of the courts below were set aside---Validity---Both courts below including the Chief Court had failed to apply its mind towards framing of important and necessary issue regarding jurisdiction exercised by the Authorities---Said findings of the courts, had no legal sanctity at all---Courts having failed to frame important and necessary issues regarding `jurisdiction"---Impugned judgment and decree passed by Chief Court were set aside and case was returned to the Trial Court with direction to decide "question of jurisdiction in the matter after framing of necessary issues ".

(b) Administration of justice---

---Litigants who bring their disputes to the law courts with incidental hardships and expenses involved, do expect a patent and judicious treatment of their cases; and their determination by proper orders---Judicial order must be a speaking order, manifesting that the court had applied mind to the resolution of the issues involved for their proper adjudication and the ultimate result could be arrived at by a laborious effort---Findings in appealable cases, should be given after framing issues, even though it could be unnecessary to decide the same for the purpose of the decision arrived at.

Sharif Ahmed, Advocate for Petitioners.

Advocate-General Gilgit-Baltistan.

Johar Ali, Advocate for Respondents.

Date of hearing: 16th June, 2010.

2010 G B L R 340

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Muhammad Yaqoob, J

MUHAMMAD AMIN BALGHARI---Petitioner

Versus

PROVINCIAL GOVERNMENT and others---Respondents

C.P.L.A. No. 10 of 2010, decided on 4th May, 2010.

(Civil Petition for leave to appeal against the impugned judgment/order dated 14/04/2010 passed by the learned Division Bench Gilgit-Baltistan Chief Court Gilgit in Writ Petition No. 46/2009).

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 60(13)---Petition for leave to appeal---Scope---No jurisdictional error or legal defect was in the order of Chief Court or the Departmental orders regarding recall of tenders---Supreme Appellate Court was not supposed to interfere in the matter in which there was no material illegality in the order of Chief Court or the action taken by the administrative authorities in good faith in public interest.

Muhammad Issa, Senior Advocate assisted by Jamal Khan Advocate for Petitioner.

2010 G B L R 341

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J. and Muhammad Yaqoob, J

Lt.-Col. ARSHAD MEHMOOD CH.---Petitioner

Versus

KIU and others---Respondents

Review No. 1 of 2010, heard on 8th June, 2010.

(Review Petition in short order, dated 15-9-2009 followed by detail judgment).

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 65---Gilgit-Baltistan Supreme Appellate Court Rules, 2008, O.XXVII---Review of Supreme Appellate Court judgment---Statement of account earlier submitted by respondents and the Auditor-General were not correctly prepared and the arrears of pay and allowances actually payable to the petitioner were wrongly calculated---Deputy Auditor-General rectifying the error of miscalculation of amount of claim in the previous statements of account had submitted report on the basis of last pay drawn by the petitioner in the service---Said report and statement of account was treated as part of record and judgment under review was modified accordingly---Petitioner would be paid arrears of his pay and allowance, according to modified report---Supreme Appellate Court directed that Chief Secretary would ensure that payment of claim of the petitioner would be made within a month.

Muhammad Issa, Senior Advocate for Petitioner.

Mir Ikhlaq Hussain, Advocate for KIU.

Riaz, Accounts Officer, AGPR Gilgit.

Date of hearing: 8th June, 2010.

2010 G B L R 343

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, J

Haji GHULAM MEHDI---Petitioner

Versus

PROVINCIAL GOVERNMENT through Chief Secretary Gilgit-Baltistan and 6 others---Respondents

C.P.L.A. No. 15 of 2010, heard on 23rd June, 2010.

(Petition for leave to appeal against the impugned judgment/ order dated 17-6-2010 passed by the Division Bench GB Chief Court).

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 60(13)---Awarding of contract---Pre-qualification---Allegation raised by petitioner was that respondents who were awarded contracts at enhanced rates were not pre-qualified being not registered with concerned Authority---Effect---In view of nature of allegation contained in the application in question in which order had already been passed for inquiry, the inquiry officer in addition to transparency, should also look into the question of grant of contract at enhanced rate and payment of mobilization advance, despite restraining order was passed by Supreme Appellate Court in another case pending decision before it---Requirement of registration of contractor for pre-qualification with concerned Authority, might also be seen and inquiry should be completed within a fortnight---Supreme Appellate Court declined to interfere in the judgment passed by Chief Court---Leave to appeal was refused.

Johar Ali, Advocate for Petitioner.

2010 G B L R 345

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

JUMMA SYED and 2 others---Petitioners

Versus

PROVINCIAL GOVERNMENT through Chief Secretary Gilgit-Baltistan and 9 others---Respondents

C.P.L.A. No. 7 of 2010, decided on 23rd June, 2010.

(Petition for grant of leave to appeal against the impugned judgment/order dated 2-4-2010).

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Arts. 16 & 60(13)---Infringement of property rights---Report submitted by the Local Commissioner, would show that road was being constructed without feasibility or survey report or layout plan---Department, on the basis of site plan started the construction and the road was diverted through the land of the petitioner---Prima facie, property rights of the petitioner had been infringed for which compensation could not be sufficient---Supreme Appellate Court, without commenting upon the merits of the case directed that Trial Court after framing specific issue on the layout plan of the road, would decide the main suit within a period of three months to avoid delay in the construction of the road and meanwhile the status quo would be maintained---Parties, however, could settle the dispute amicably to avoid unnecessary litigation in the construction of public road---Petition for leave to appeal was converted into appeal and disposed of accordingly.

Advocate-General Gilgit-Baltistan.

Johar Ali for Petitioner.

2010 G B L R 347

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Muhammad Yaqoob, J

PROVINCIAL GOVERNMENT through Chief Secretary, Gilgit-Baltistan and others---Petitioners

Versus

SADAR AZAM and others---Respondents

C.P.L.A. Nos. 19 and 20 of 2009, heard on 5th May, 2010.

(Petition for grant of Leave to Appeal against the impugned judgment dated 19-5-2009 passed by the Chief Court, Northern Areas Gilgit.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Arts. 17, 60(13) & 71---Equality of citizens---Principle of reasonable classification---Grievance of petitioners was that they were not appointed in Basic Pay Scale-14 despite the fact there were vacancies and they had the requisite qualification---Plea raised by petitioners was that they had been discriminated---Validity---Person placed in same position in alike circumstances was entitled to the same treatment but there was no rule to claim a right to which a person was not otherwise entitled---Parties could not claim initial appointment in Basic Pay Scale-14 merely on the basis of qualification of graduation and no legitimate right accrued to them for invoking Constitutional jurisdiction of Chief Court---Department without prejudice to the right of any other person might consider the parties in their own right for adjustment in Basic Pay Scale-14 subject to their qualification and availability of vacancies---Supreme Appellate Court directed the government to constitute a committee for scrutiny of qualification and merits of each teacher and in exercise of powers as competent authority might consider them for appointment in Basic Pay Scale-14 against vacant post---Appeal was allowed.

Advocate-General Gilgit-Baltistan for Provincial Government.

Haji Mirza Ali Advocate for Respondents.

Muhammad Issa, Senior Advocate assisted by Malik Shafqat Wali for Petitioners (in C.P.L.A. No. 20 of 2009).

Date of hearing: 5th May, 2010.

2010 GBLR 351

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Muhammad Yaqoob, J

Haji GHULAM HUSAN---Petitioner

Versus

Haji QASIM---Respondent

C.P.L.A. No.1 of 2009, heard on 27th October, 2010.

Civil Procedure Code (V of 1908)---

----O. VI, R.2---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)----Money suit---Suit for recovery of money filed by the plaintiff was dismissed by the Trial Court as time-barred---Chief Court, on appeal set aside judgment of the Trial Court and remanded the case to the Trial Court to frame proper issues after revisiting the pleadings and adjudicate the matter afresh---Plaintiff filed petition for leave to appeal against judgment of the Chief Court on the ground that Chief Court instead of deciding the appeal on merits and considering the question of limitation in proper manner, was not justified to remand the case to the Trial Court---Validity---Trial Court as well as Chief Court had not properly attended the controversial question of fact of law arising out of the pleadings of the parties---Trial Court without framing proper issues, made meaningless finding on some issues---Chief Court also without framing additional issues or indicating the defect in the issues already framed, remanded the case---Held, in view of nature of dispute between the parties and character of suit, court instead of dilating upon factual controversy, directed that the Trial Court could reframe the issues or frame additional issues, if necessary, or if so proposed by counsel for the parties, could also permit the parties to adduce further evidence, if so required Supreme Appellate Court directed that present was an old case therefore trial Court while proceeding expeditiously and without granting unnecessary adjournment to either party will conclude the proceedings before winter vacation and decide all issues in the Suit on the question of law and fact including the question of limitation on merits in accordance with law.

Munir Ahmed for Petitioner.

Muhammad Shafi; Senior Advocate for Respondent.

Date of hearing: 27th October, 2010.

2010 GBLR 353

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

Syed JABBAR and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 10 of 2010, decided on 4th August, 2010.

(a) Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail---Counsel for the petitioner had contended that statements of all the eye-witnesses had been recorded and only formal witnesses were left for examination---Counsel had also pointed out that as a result of baseless transfer application moved by the complainant before the Chief Court, the proceedings in the trial before the Trial Court had been struck off and the conclusion of trial had been un-necessarily delayed---Held, Expeditious disposal of a criminal case involving capital punishment was right of accused and the prosecution or complainant, must not be allowed to use delaying tactics to prolong the trial at the cost of agony of detention of accused in jail---Chief Court in exercise of its power of superintendence and the supervision of subordinate courts, must take notice of such matters to avoid unnecessary delay in the disposal of criminal cases; and could decide the transfer application on priority basis to avoid any further delay in conclusion of trial---Trial Court on decision of the transfer application would proceed in the trial day to day and conclude the proceedings within a month.

(b) Expunction of observations---

----Observations of Chief Court appearing to be out of the context were ordered to be expunged by the Supreme Appellate Court.

Malik Haq Nawaz for Petitioners.

Haji Jamal Khan for Respondent.

2010 GBLR 356

[Supreme Appellate Court]

Present: Syed Jaffar Shah and Muhammad Yaqoob, JJ

ABDUL GHAFOOR and 2 others---Petitioners

Versus

GHULAM MUHAMMAD and 6 others----Respondents

C.P.L.A. No. 4 of 2009, heard on 30th June, 2010.

(a) Administration of justice---

----Litigants who bring their dispute to the law courts with incidental hardships and expenses involved, would expect a patient and judicious treatment of their cases; and their determination by proper orders---Judicial order must be a speaking order, would manifest that court had applied its mind to the resolution of the issue involved for their proper adjudication; and the ultimate result may be arrived at by a laborious effort.

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

----O. VI, R.17---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Amendment of plaint---Language used in O. VI, R.17, C.P.C. to the effect that "all such amendments would be made as could be necessary for purpose of determining the real question in controversy", was mandatory in nature---Once the court decided that amendment was necessary for the purpose of determining the real question, the court was required by law, not only to allow an amendment application made by a party in that behalf, but was also bound to direct the amendment for the said purpose---Full power of amendment must be enjoyed and should always be liberally exercised---When allowing the amendment in the plaint, the defendant's right should also be kept in view---Nature of the suit, insofar as its cause of action was concerned, was not to be changed by the amendment, because when the cause of action was changed, the suit itself would become different from the one initially filed---Dismissal of application for amendment of plaint on technical grounds, without touching merits and without determining right to amend the pleadings, was no bar for maintaining second application for the same purpose---Second application should only be barred, when earlier was decided on merits--Once a decision was given on an application under O. VI, R.17, C.P.C. regarding the same subject matter, similar application could not be filed, again on the same ground---Plaintiff having proved a genuine case for amendment, which was permissible, amendment should be liberally allowed in view of the grounds high-lighted in the amendment application---Petition for leave to appeal was converted into appeal and was allowed by Supreme Appellate Court, in circumstances.

(c) Administration of justice---

----Proper place of procedure in any system of administration of justice, was to help and not to thwart the grant to the people of their rights---All technicalities had to be avoided, unless it was essential to comply with them on grounds of Public Policy---All rule of courts were nothing, but provisions intended to secure the proper administration of justice, so that full power of amendment must be enjoyed and should be liberally exercised.

Muhammad Issa, Senior Advocate for Petitioners.

Shaukat Ali, Senior Advocate for Respondents.

Date of hearing: 30th June, 2010.

2010 GBLR 362

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

SUO MOTU CASE NO.11 OF 2009:

In re S.M.C. No.11 of 2009, decided on 30th September, 2010.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 61---Suo Motu Jurisdiction of Supreme Appellate Court---Shifting of stone crushing and stone cutting machine in Gilgit--Counsel for the contractor submitted that the contractor could be given special permission to continue the stone crushing machine and stone cutting machine installed at the site of Secretariat building and River View Road, which was installed only for the Government project without any other commercial activity---Advocate General without conceding the legal position had indirectly supported counsel for the contractor---Comments submitted by Director Environment department would show that conditional `No objection certificate' to the extent of cutting machine installed at River View Road could be given, subject to the giving of undertaking by the contractor for fulfilment of the conditions namely that project would not be used for any other purpose and that cutting machine would immediately be removed after completion of the work---Counsel for the contractor had given undertaking that the contractor would not operate unit without fulfilling the condition imposed by the Environment Department---Subject to all just exceptions and Environment Law, the contractor could on fulfilment of the condition, operate the unit of cutting machine at River View Road---When it was pointed out that stone crushing machine within prohibited zone could not be allowed to operate on any condition as no special favour could be extended to the contractor for installation of stone crushing machine in prohibited zone, the contractor without further agitating the matter, had requested for time to shift the stone crushing machine outside the prohibited area---Contractor was allowed by Supreme Appellate Court two weeks' time for shifting of stone crushing machine to a place outside the prohibited zone---Order accordingly.

Mr. Amjad Hussain, Advocate for Petitioner.

Assistant Director Environment (EPA)

2010 G B L R 364

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Muhammad Yaqoob, J

SUO MOTU CASE NO.1 OF 2007: In re

S.M.C. No.1 of 2007, heard on 2nd November, 2010.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 61---Suo motu jurisdiction of Supreme Appellate Court---Matter related to public project of construction of Karakurum International University Road---Notices were issued to the Superintending Engineer and Vice Chancellor of the University---Government functionary and the contractor appeared and explained the position for delay in construction of the road which was shortage of funds---Contractor despite permission from the authorities for construction of road had failed to fulfil his commitment---Matter remained pending without any progress---Supreme Appellate Court had directed the department not to make payment to the contractor---Finally, because of intervention of the court, road work had been completed within the contract period without extra burden on the exchequer---Efforts made by the department for completion of the project and cooperation of contractor without claiming extra charges was appreciated by the court---Proceedings in suo motu case had already been closed and same was accordingly disposed of.

Advocate-General Gilgit-Baltistan.

Basharatullah XEN B&R Division Gilgit.

Himmatullah Project Director KIU Road.

Date of hearing: 2nd November, 2010.

2010 GBLR 370

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J. and Muhammad Yaqoob, J

NIAMAT KHAN through Legal Representatives and 23 others---Petitioners

Versus

SECRETARY, KASHMIR AFFAIRS AND NORTHERN AREAS AFFAIRS, ISLAMABAD and 4 others---Respondents

C.P.L.A. No.37 of 2009, decided on 25th October, 2010.

Land Acquisition Act (I of 1894)---

----Ss. 4, 18, 28 & 34---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Acquisition of land---Determination of amount of compensation---Reference to Referee Court---Interest payable to landowners---Scope---Petitioners/ landowners, whose land was acquired, being not content with the compensation amount, approached the Collector for referring the matter to Referee Court under S.18 of Land Acquisition Act, 1894---Referee Court enhanced the compensation amount---Dispute had arisen in the matter of calculation of interest payable to the petitioner under S.28 of Land Acquisition Act, 1894---Section 28 of Land Acquisition Act, 1894 would come into play at a point of time when Referee Court had made its award upon the matter being referred to it by the Land Acquisition Collector under S.18 of Land Acquisition Act, 1894---Interest would be payable only in case the court would come to the conclusion that the compensation payable to the landowners, was in excess of the amount of compensation awarded to them by the Land Acquisition Collector---Once the court would come to such conclusion, the Collector upon direction of the court had to pay the compound interest on the excess amount at the rate of 8%---Compound interest payable, was to be paid on the excess amount and that excess referred to the difference between the amount determined by the court; and the amount assessed by the Collector; provided the amount determined by the court was in excess of the amount assessed by the Land Acquisition Collector--Such interest was to be paid retrospectively with effect from the date mentioned in the judgment passed by Referee Court and till such time that the excess amount was deposited in the court--Impugned order passed by Chief Court and order passed by Executing Court below, were set aside, with the direction that the petitioners were entitled for the compound interest under S.28 of Land Acquisition Act, 1894; further the excess amount in the shape of interest was to be paid retrospectively with effect from judgment of the Referee Court---Executing Court was directed to calculate the interest on the excess amount of compensation and satisfy the decree according to law and equity.

Muhammad Shafi Senior Advocate for Petitioners.

Advocate-General Gilgit-Baltistan for Respondents.

2010 G B L R 375

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. Syed Jaffar Shah and Muhammad Yaqoob, JJ

SHER AZAM and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 12 of 2010, decided on 9th August, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Bail---Counsel for the petitioners had submitted that trial was ripe for conclusion as except 2, 3 formal witnesses all other witnesses had been examined, but the District Attorney for the last six dates had not appeared in the court; as a result of which conclusion of trial was stuck off---Counsel had stated that instead of asking for the bail of the petitioner, he would request for a direction of conclusion of trial on priority---District Attorney for no good reason absented from the court and caused unnecessary delay in the conclusion of trial---Trial Court had also not taken any pains in conclusion of trial within reasonable time, as per direction of Supreme Appellate Court in Jail Reforms case---Prosecution could not be allowed latitude to prolong the trial at the cost of agony of accused who were in jail since the date of registration of case against them---Trial Court was required to examine using coercive measures for the attendance of the witnesses, to conclude the trial on priority---Request of the counsel for the petitioner for early disposal of the case by the Trial Court being genuine, Supreme Appellate Court directed accordingly.

Malik Haq Nawaz, Senior Advocate for Petitioners.

Advocate General Gilgit-Baltistan on Court call.

2010 GBLR 377

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

AMIR SHAH---Petitioner

Versus

Mst. KHOSH JOOR---Respondent

C.P.L.A. No. 19 of 2010, decided on 5th August, 2010.

Civil Procedure Code (V of 1908)---

----S. 24---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Transfer of case---Valid ground---Petitioner had assailed the order whereby application filed by the petitioner for transfer of civil suit from one court to another was dismissed by the Chief Court---Grounds urged for transfer of case were that respondent in the case using filthy language, misbehaved with him in open court, but Civil Judge did not take any notice of the conduct of respondent in the court; that attitude of the Presiding Officer of silent spectator not only encouraged the respondent, but also disgraced the Court; that petitioner had lost confidence in the independence of the Trial Judge in circumstances and that after dismissal of the transfer application, by the Chief Court, Trial Judge had developed bias against the petitioner and issued non-bailable warrants of his arrest for his absence---Petitioner had alleged that act of the Presiding Officer had seriously reflected upon his independence and fair treatment---Held, that it was correct that a reasonable apprehension in the mind of a litigant about the unfairness or bias of the Presiding Officer of the court was considered a valid ground for transfer of the case, but mere apprehension was not sufficient to doubt the independence of the Presiding Officer of the court---Misbehaviour of a party in the court could render such party liable to be proceeded against for appropriate action in accordance with law, but could not be a good or valid ground for transfer of case from one court to another court---Such was not an ordinary practice in civil proceedings 'to issue bailable or non-bailable warrants to secure the attendance of a person, unless there was legal compulsion to use the coercive measures for the attendance of a person---Nothing was on record to show that as to for what reason non-bailable warrants of the petitioner were issued---Ground related to the period subsequent to the dismissal of transfer application of the petitioner by the Chief Court, was such that no comments could be offered without examination of the record---Supreme Appellate Court disposed of the petition with observation that petitioner, may if so advised, approach the Chief Court afresh.

Johar Ali for Petitioner.

2010 GBLR 379

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

SUO MOTU CASE NO.4 OF 2009: In re

S.M.C. No. 4 of 2009, heard on 6th October, 2010.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 61---Suo motu jurisdiction of Supreme Appellate Court---Matter arose out of application moved by Member Northern Area Legislative Assembly wherein it was urged that project of "Sadpara Dam" was approved with diversion of "Shatong Nullah" in the Dam, but the authorities excluded the diversion of Nullah to the Dam---Applicant had requested that direction be given for completion of "Sadpara Dam" with diversion of "Shatong Nullah" as per original plan of the project--Matter being of national importance which related to the enforcement of fundamental rights of the people of Gilgit-Baltistan, Supreme Appellate Court while taking cognizance of the matter, in exercise of its original jurisdiction, issued notice to the concerned authorities---Subject to the national and public interest, the diversion of "Shatong Nullah" in the Dam as per original plan of "Sadpara Dam" would not be deferred for indefinite period or changed permanently without the approval of the Legislative Assembly and the counsel of Gilgit-Baltistan---Sadpara Dam was a project of national interest and permanent exclusion of diversion of Shantong Nullah, Dam could on one hand result in wastage of water of Nullah; and on the other hand due to shortage of water, the Dam ultimately could have no useful purpose---To avoid national loss, Supreme Appellate Court directed that Authorities, must ensure diversion of Shatong Nullah as per original scheme on the expiry of the period for which it had been suspended.

Advocate General Gilgit-Baltistan.

Muhammad Shafi, Sr. Advocate for WAPDA.

Syed Raghib, Member Water and Power, WAPDA.

Date of hearing: 6th October, 2010.

2010 GBLR 390

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Muhammad Yaqoob, J

SUO MOTU CASE NO.12 OF 2009: In re

Suo Motu Case No. 12 of 2009, heard on 8th November, 2010.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 61---Suo motu jurisdiction of Supreme Appellate Court---Complaint of the public in general published in the newspapers that because of non-availability of clean drinking water in Gilgit city, majority of the population was victim of various serious diseases--Supreme Appellate Court in exercise of powers under Art.61 of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, took cognizance of the matter, issued notices to the concerned authorities and passed orders on various dates during the proceedings---Clean drinking water was a basic necessity of life which was a fundamental right of the people and government was obliged to provide clean drinking water to the citizens as a legal duty---Despite limited sources and financial constraints, Government of Gilgit-Baltistan had approved the scheme for supply of clean drinking water in the welfare of the people in pursuance of their fundamental rights guaranteed under Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 read with Universal Declaration of Human Rights of United Nations---Issue regarding the defect in the pipelines of the water supply and its replacement was also considered and direction was given to authorities concerned for technical inspection of the site and the team deputed by the authorities for physical inspection, had submitted its report---In the light of said report, no further proceedings being required in the matter, case was closed---Case having born fruit, same stood disposed of accordingly.

Advocate General Gilgit-Baltistan.

SDO, WASA, Gilgit-Baltistan.

Date of hearing: 8th November, 2010.

2010 G B L R 412

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

THE STATE---Petitioner

Versus

KHAN BIBI alias KHANI---Respondent

Criminal Miscellaneous No. 13 of 2010, decided on _27th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, cancellation of---State had filed petition for cancellation of bail of accused in case of murder of her husband---Respondent/accused was allowed bail by the Chief Court with observation that no direct evidence existed; and circumstantial evidence was yet to be scrutinized to ascertain the question of guilt or innocence at the trial---Advocate General had submitted that son of accused, a student of sixth class in his statement under S.161, Cr.P.C. had clearly stated that his mother having illicit relation with co-accused conspired the commission of offence---Occurrence was unseen in which no direct evidence was available and indirect evidence could not be substituted for direct evidence---Mere suspicion of son of accused of her illicit relation with co-accused, would not be sufficient to withhold the bail---No interference could be made in the order of Chief Court granting bail.

Advocate General for Petitioner.

2010 G B L R 413

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

ABDUL GHANI and another---Petitioners

Versus

CHIEF SECRETARY, GILGIT-BALTISTAN and 3 others---Respondents

Civil Review No. 4 of 2010, decided on 29th September, 2010.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 65---Supreme Appellate Court Gilgit-Baltistan Rules, 1980, R.XXVII---Civil Procedure Code (V of 1908), S.114 & O.XLVII, R.1---Review of Supreme Appellate Court judgment---Petitioners had sought review of the judgment on the ground that main appeal and additional issues framed in appeal were out of the pleadings of the parties and appeal was time-barred---Question of limitation was not raised by the Petitioners in appeal at any stage---Appeal was barred by time and the Point having not been taken earlier, would be deemed to have been waived; and could not be allowed to be raised in review petition---Contentions on the merits of the additional issues requiring determination by the Trial Court, could be taken before the Trial Court---Order accordingly.

Malik Shafaqat Wali, Sr. Advocate.

Haji Jamal Khan, Advocate-on-Record.

2010 GBLR 414

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

SUO MOTU CASE NO.8 OF 2010: In re

S.M.C. No.8 of 2010, decided on 6th October, 2010.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Arts. 61 & 60---Suo motu jurisdiction of Supreme Appellate Court---Murder of under-trial prisoner in Chief Court promises opposite the Supreme Appellate Court---Home Secretary stated that courts were located in populated area; and that security arrangement of the Judges, Lawyers and Public litigants, was not satisfactory and that location of Special Court (Anti-Terrorism) adjacent to the Supreme Appellate Court and near the Chief Court was security risk; and even otherwise the present location of the Special Court was not proper---Chief Secretary had undertaken to shift the Special Court to any other suitable place, within a period of one month---Similar incident of firing outside the premises of Chief Court and Supreme Appellate Court had taken place and Chief Secretary was directed to shift Special Court (Anti-Terrorism) to some other place---Such incident was an alarming situation and no exception could be taken in the matter of security of the courts---Home Secretary would ensure proper security of court premises and would also shift Special Court to any other place, without wasting any time.

Secretary Home Gilgit-Baltistan

Deputy Secretary Home Gilgit-Baltistan.

2010 GBLR 416

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Muhammad Yaqoob, J

SUO MOTU CASE NO.9 OF 2010:

In re S.M.C. No. 9 of 2010, decided on 12th November, 2010.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 61---Suo motu jurisdiction of Supreme Appellate Court---Provision of basic facilities in Skardu---Additional Deputy Commissioner concerned, Superintending Engineer and XEN, had stated that the position of the projects in question was satisfactory and Commissioner was vigilant for the continuous process of maintaining the projects---Supreme Appellate Court disposed of the matter accordingly.

Advocate General for Gilgit-Baltistan.

Shoukat Ali, Sr. Advocate.

S.E. B&R Division Skardu.

ADC District Skardu.

2010 GBLR 417

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Muhammad Yaqoob, J

QAMAR ABBAS and 3 others---Applicants

Versus

VICE CHANCELLOR KIU and 2 others---Respondents

C.M.As. Nos.25, 26 and 27 of 2010, decided on 28th September, 2010.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 65---Supreme Appellate Court Gilgit-Baltistan Rules, 2008, O.XXXIII---Review of Supreme Appellate Court judgment---No ambiguity was found in the order wherein main judgment had been maintained with direction that the case of the petitioners in review petitions would be placed before Selection Board of the university---Applicants in the review petition were not required to appear before the Board---Order accordingly.

Muhammad Issa, Sr. Advocate for Applicants.

Registrar KIU Gilgit-Baltistan.

2010 GBLR 418

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Muhammad Yaqoob, J

SUO MOTU CASE NO.1 OF 2009: In re

S.M.C. No.1 of 2009, decided on 12th November, 2010.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 61---Suo motu jurisdiction of Supreme Appellate Court---Supply of electricity at Skardu---Deputy Secretary Water and Power stated that total consumption of electricity in Skardu City was 13 MW, whereas 11 MW electricity was already in production and shortage of 2 MW was not material to create electricity problem in the city and that a power project of the capacity of 26 MW would be constructed on release of funds---Government functionary, in view of said position, had stated that in case of shortage of electricity, the alternate arrangement of diesel generators already available with the department in Skardu, subject to availability of funds, could be operated---Further proceedings in the matter, in circumstances, were closed and case was disposed of accordingly.

Advocate General for Gilgit-Baltistan.

Shoukat Ali, Senior Advocate.

S.E, PWD Division Skardu.

XEN Water and Power Division Skardu.

Deputy Secretary Water & Power Gilgit-Baltistan.

2010 GBLR 419

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Muhammad Yaqoob, J

SUO MOTU CASE NO.5 OF 2009: In re

Suo Motu Case No.5 of 2009, decided on 25th October, 2010.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 61---Suo motu jurisdiction of Supreme Appellate Court---Construction of Naltar road---Advocate General had submitted that reconstruction of the damaged road would only be possible in the next season; as the matter was still under consideration with the concerned authorities; and even if decision was taken at an early date, the work could not be carried out in winter season---Advocate General had further submitted that since remaining portion of the road was already complete in all respects, further proceedings in the case could be closed for the time being---Further proceedings for the time being, were closed by the Supreme Appellate Court and matter was disposed of accordingly.

Advocate General Gilgit-Baltistan.

XEN B&R Division Gilgit.

2010 GBLR 420

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J. and Muhammad Yaqoob, J

SUO MOTU CASE NO. 6 OF 2010: In re

Suo Motu Case No. 6 of 2010, decided on 11th November, 2010.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 61---Suo motu jurisdiction of Supreme Appellate Court---Dilapidated condition of roads/cleanliness in Gilgit city---General complaints of undue favour in public projects and poor performance of departments which were responsible to maintain water supply schemes and public roads etc. were received---Government incurred huge expenditure for the improvement of the roads and water supply scheme, but due to the inefficiency of concerned departments, no visible improvement was made in the projects of public utility; as a result thereof, public money and time, without any substantial work, useful to a common person was wasted---Function of Supreme Appellate Court was not to control the administrative affairs of the departments of Government---Court being custodian of legal rights of the people, could interfere in the matters which involved public rights---Keeping in view the poor performance of the departments, Supreme Appellate Court observed that the Chief Secretary, while taking notice of the situation, could propose to the higher authorities for the establishment of an independent development authority, in public interest---Order accordingly.

Advocate General Gilgit-Baltistan.

Chief Engineer Gilgit Region.

XEN B&R Division Gilgit.

Chief Officer Municipal Committee Gilgit.

2010 G B L R 422

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

INAM-UL-HAQUE---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 8 of 2010, decided on 6th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Bail petition---Counsel for the petitioner during the course of hearing pointed out that petition for bail before the Chief Court was not decided on merits, but. was dismissed as `withdrawn'---Petition before Supreme Appellate Court was not maintainable in circumstances, petitioner could move a fresh bail application before Chief Court or before the Trial Court.

Muhammad Abbas, Advocate on Record.

2010 GBLR 423

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Muhammad Yaqoob, J

PROVINCIAL GOVERNMENT through Chief Secretary, Gilgit-Baltistan and 3 others---Petitioners

Versus

SAFAR KHAN and 9 others---Respondents

C.P.L.A. No.23 of 2001, decided on 4th November, 2010.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 60(3)---Petition for leave to appeal was not entertainable and deserved to be dismissed with heavy cost---Department having not been properly advised, petition was dismissed without cost.

Advocate General for Gilgit-Baltistan.

Ali Nazar Advocate for the petitioners.

2010 GBLR 424

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Syed Jaffar Shah, J

ZAFAR IQBAL MD NACTO, GILGIT-BALTISTAN---Petitioner

Versus

MUHAMMAD NASEEM---Respondent

Civil Review Petition No. 3 of 2010, decided on 4th October, 2010.

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

----Arts. 85, 90 & 91---Official document not produced at proper stage in evidence---Effect---Official document which was not produced at proper stage in evidence from official custody in proper manner, could not be considered as part of evidence and judicial record.

(b) Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 65---Supreme Appellate Court Gilgit-Baltistan Rules, 2008, O.XXXI---Civil Procedure Code (V of 1908), S.114 & O.XLVII, R.1---Review petition---New ground could not be allowed to be taken in review petition on the basis of fact which was not brought before the court at proper stage.

Javed Iqbal Advocate for the petitioner.

2010 G B L R 425

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Syed Jaffar Shah, J

MUHAMMAD NASIM---Petitioner

Versus

ZAFAR IQBAL, M. D. NATCO GILGIT-BALTISTAN---Respondent

Criminal Miscellaneous No. 11 of 2010, decided on 11th October, 2010.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 75---Supreme Appellate Court Gilgit-Baltistan Rules 2008, O.XVII---Contempt of Court Act (I of 2004), Ss.3 & 4---Contempt of Court---Publication of contemptuous statement in violation of Supreme Appellate Court judgment---Counsel for respondent had placed a copy of office order regarding the implementation of judgment of Supreme Appellate Court passed with direction for payment of the dues to the petitioner from the date of his removal from service---Petitioner had stated that his grievance had been redressed and he was no more interested to pursue contempt application---Same was disposed of with direction that dues of the petitioner would be paid without any further delay.

Ehsan Ali Advocate for Petitioner.

Javed Iqbal Advocate for Respondent.

2010 GBLR 426

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Muhammad Yaqoob, J

HASAN SADPARA---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Ministry of Defence---Respondents

C.P.L.A. No. 12 of 2010, decided on 28th October, 2010.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 60(13)---Petition for leave to appeal---Writ jurisdiction before Chief Court---Scope---After dismissal of review petition before Chief Court, petitioner could not invoke writ jurisdiction before the same court on the same subject; notwithstanding the fact that full judgment was not written, short order would be treated judgment in the case---Counsel for petitioner realizing the legal position, instead of further agitating the matter before Supreme Appellate Court, had submitted that petitioner would raise all questions of law and facts before the court concerned in due course of time at proper stage; and would not further press the petition before Supreme Appellate Court---Petition was disposed of.

Johar Ali, Advocate for Petitioner.

2010 G B L R 427

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J. and Muhammad Yaqoob, J

SUO MOTU CASE NO.9 OF 2009: In re

Suo Motu Case No.9 of 2009, decided on 25th October, 2010.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 61---Suo motu jurisdiction of Supreme Appellate Court---Death in Police custody---Original jurisdiction of Supreme Appellate Court---Supreme Appellate Court, without commenting on the merits of the case, observed that deceased having died in Police custody, notwithstanding the ultimate result of the case, Police could settle the matter with legal heirs of deceased to their satisfaction; and instead of seeking any favourable order from the court, could enter into compromise with them by paying compensation, as was permissible under the law, before the Sessions Judge concerned---No further order was passed and case was not kept pending---Matter was disposed of with direction that local Police, on receipt of investigation report, would submit final report accordingly before the court concerned for appropriate action in accordance with law.

Advocate General Gilgit-Baltistan.

Deputy Secretary Home Gilgit-Baltistan.

Bashir Ahmed Acting S.P. Gilgit.

2010 GBLR 429

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

ZAHEER KHAN---Petitioner

Versus

PROVINCIAL GOVERNMENT through Chief Secretary, Gilgit-Baltistan and 4 others---Respondents

C.P.L.A. No. 13 of 2010, decided on 7th July, 2010.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 60(13)---Petition for leave to appeal---Civil service---Director Education, appearing in person stated that due to misunderstanding, he had instructed the Advocate General that court could pass any order; and with regret submitted that the petitioner was contingent employee and for the time being he would be adjusted/restored to his job accordingly---Director Education, however, stated that subject to the policy and financial position, petitioner would be adjusted against the regular vacancy in due course of time in his own right---Petition for leave to appeal was disposed of accordingly.

Malik Shafqat Wali Sr. Advocate and Ali Nazar Advocate-on-Record for Petitioner.

Advocate General Gilgit-Baltistan for Respondents.

Rao Akhlaq, Deputy Director Education, in person.

2010 G B L R 430(1)

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. Muhammad Yaqoob, J

GHUFRAN GUL---Petitioner

Versus

IMDAD HUSSAIN and 3 others-Respondents

Cr.P.L.A. No. 8 of 2010, decided on 11th November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.63-A---Bail---Counsel for the petitioner, during the course of argument when pointed out that instead of seeking cancellation of bail, the petitioner could concentrate for earlier conclusion of trial, he did not further press the petition which was dismissed as not pressed.

Malik Haq Nawaz Sr. Advocate for Petitioner.

2010 GBLR 432

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

SUO MOTU CASES NOS. 16 AND 17 OF 2010:

In re S.M.Cs. Nos. 16 and 17 of 2010, decided on 7th October, 2010.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 61---Suo motu jurisdiction of Supreme Appellate Court---Up­gradation of Judicial Officers/Staff and Allowances---Suo motu case to the extent of matter in respect of upgradation of Judicial Officers of the Subordinate Judiciary had already been disposed of, whereas, the question relating to the status of three Districts, as Sessions Divisions, was kept pending for the comments of Chief Court and Law and Prosecution Department, which had been submitted---Secretary, Law and Prosecution Department,. had stated that Government had never recommended down-gradation of Sessions Divisions and the change of Sessions Divisions with Additional District and Sessions Judges in the three Districts, was in violation of law---Registrar, Chief Court also took the similar view of the matter---Law and Prosecution Department, on its report and Registrar, Chief Court in the comments had conceded that upgradation of the said Districts as Sessions Divisions, was essential for the better administration of justice---Supreme Appellate Court directed that competent Authority would issue notification of up-gradation of the three Districts, as Sessions Divisions, with immediate effect.

Registrar and Deputy Registrar Gilgit-Baltistan Chief Court.

Advocate General Gilgit-altistan. Muhammad Issa, Amicus Curie.

2010 GBLR 436

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

SUO MOTU CASE NO.1 OF 2008:

In re S.M.C. No.1 of 2008, heard on 16th March, 2010.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 61---Suo motu jurisdiction of Supreme Appellate Court---Public interest---On basis of Editorial published in a Daily newspaper regarding deteriorating condition of District Hospital and shortage of Doctors, Supreme Appellate Court took suo motu cognizance in the matter in public interest---Matter remained under consideration for a considerable time and ultimately Advocate General, submitted a report in the court on the subject and in consequence thereto the court proceeded to pass orders to the effect; that acting Director Health Services would submit a detailed report showing the total number of Doctors of prolong absence from duty without permission; and the action taken against them including the recovery of financial loss caused to the Government in form of salaries and allowances received by them during the period of absence---Secretary Health would expedite the disciplinary proceedings of taking appropriate departmental action in the matter in accordance with law and would submit compliance report to the Registrar of Supreme Appellate Court.

Advocate General Gilgit-Baltistan

Feroz Khan Deputy Chief Planning, Government of Gilgit-Baltistan.

Acting Director Health Services Gilgit-Baltistan.

Mir Ahmed Khan Director Colleges Government of Gilgit-Baltistan.

Date of hearing: 16th March, 2010.

2010 GBLR 450

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

SUO MOTU CASE NO.13 OF 2009: In re S.M.C. No.13 of 2009, heard on 5th October, 2010.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 61---Suo motu jurisdiction of Supreme Appellate Court---Court took suo motu notice on an application moved by teaching staff of a School---On the direction of Chief Judge a report was called from concerned authorities---Schools in question were established by communities with the aid of Government under social action programme, but the communities in departure to the Scheme, appointed more than one teacher of their choice in one school; as a result thereof, due to shortage of funds the teachers could not get their remuneration in terms of the programme---Secretary Education Department had stated that due to financial constraint of the Government, the Chairman of the National Education Foundation, decided to take over the management of schools and consequently an agreement was signed between Federal Minister for Education and Governor Gilgit-Baltistan for taking over the management of school by National Education Foundation for financial and logistic support--Secretary Education Department with co-ordination of Director had constituted an Implementation Committee to give effect to said agreement; and except minor matters, the agreement had been implemented in letter and spirit---In the light of the report and joint statement made by Secretary Education and Acting Director, National Education Foundation, matter was disposed of vide order which could be treated as part of the judgment.

Secretary Education, Government of Gilgit-Baltistan.

Director Planning, Education Department, Government of Gilgit-Baltistan.

Acting Director, National Education Foundation.

Date of hearing: 5th October, 2010.

2010 GBLR 460

[Supreme Appellate Court]

Present: Muhammad Newaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

PROVINCIAL GOVERNMENT OF GILGIT-BALTISTAN through Chief Secretary G.B. Gilgit and 4 others---Petitioners

Versus

TAHIRA BEGUM and 2 others---Respondents

C.P.L.A. No. 20 of 2010, heard on 28th September, 2010.

(a) Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 60(13)---Writ petition---Civil service---Transfer from one place of working to another---Respondents (School Teachers) who were transferred from one city to different places outside the city, sought declaration to the effect that the order of transfer of respondents. was illegal---Chief Court declared the order of transfers illegal---Validity---Posting and transfer of a civil servant was an administrative function of Government and civil servant could not claim posting at a particular place or post, unless he had a claim of posting against such a post or at a particular place as of right under terms and conditions of his service---Authorities instead of making fresh appointments against the vacant posts, transferred the respondents who were quite satisfactorily discharging their functions at their place of working on the basis of an order which had no nexus with the reason of transfer of respondents---Shifting of low paid teachers from one place to another place, without a valid reason, could not be in proper exercise of power, which could not only be against, the Education Policy and public interest, but also be the result of victimization---Competent authority in the Education department in the light of Education Policy, could make general or individual transfer of the teachers as per requirement of their service in the public interest---In the present case, the Chief Court having considered the order of transfer of respondents, not in consonance with the Education Policy in good faith, declared the same illegal---Order of the Chief Court passed in discretionary jurisdiction, was not interfered by Supreme Appellate Court.

(b) Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 71---Writ jurisdiction of Chief Court---Scope---Chief Court, in the normal cases, could not interfere in the_ administrative affairs and Policy decision of Government in writ jurisdiction, but in a case of infringement of a legal right of a person, Chief Court would not hesitate to interfere for the protection of such right in the interest of justice and rule of law---Administrative orders which were directly or indirectly contained the element of victimization or discrimination in dealing with such matters, were always subject to the judicial review of the courts.

Advocate-General, Gilgit-Baltistan.

Date of hearing 28th September, 2010.

2010 GBLR 463

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

JAN MUHAMMAD and 3 others---Appellants

Versus

MUHAMMAD MUSA---Respondent

C.P.L.A. No. 9 of 2010, heard on 7th July, 2010.

Civil Procedure Code (V of 1908)---

----O. IX, R.13 & S.151---Limitation Act (IX of 1908), Art.181---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Ex parte decree, setting aside of---Limitation---Date on which ex parte proceedings were initiated was fixed for disposal of an interlocutory application i.e. for setting aside of ex parte proceedings---Trial Court was required to have decided the fate of said application first; and then to proceed onwards, but instead of dealing with said application, Trial Court ordered ex parte proceedings and consequently passed ex parte decree against the defendant---Date fixed being not the date for hearing, ex parte proceedings and all subsequent orders including ex parte decree in consequence thereof passed by the Trial Court was of no effect, void and liable to be set aside---Application for setting aside ex parte proceedings which was filed within a period of 30 days was within time---Ex parte decree having been passed on a date which was fixed for hearing of an interlocutory application; and was not of hearing no limitation would run against it and same could be set aside by invoking inherent powers under S.151, C.P.C.---Accordingly period of limitation would be regulated by residuary Art.181 of Limitation Act, 1908, providing three years limitation period for setting aside of ex parte decree---In the present case, ex parte decree was passed on 23-6-2005 and appeal was filed on 24-8-2005, against ex parte decree, same was not time-barred---Chief Court had rightly set aside the same---Findings recorded by the Chief Court were based on cogent and plausible reasons, warranting no interference.

Javed Iqbal, Advocate assisted by (sic).

Ali Nazar, Advocate on record for Appellants.

Johar Ali Advocate for Respondents.

Date of hearing: 7th July, 2010.

2010 GBLR 467

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

Messrs FAHIM HAIDER---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary KA&GB Affairs and 9 others---Respondents.

C.P.L.A. No. 35 of 2009, heard on 11th June, 2010.

(a) Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 71---Writ Jurisdiction---Scope---Locus standi, principle of---Applicability---Scope---Public auction---Case of public importance---After withdrawal of the earnest money or bid security a participant of the auction may have no locus standi to claim any right in public auction and also may not be able to challenge the auction in the extraordinary writ jurisdiction but notwithstanding the general rule and technical objection the court may entertain a petition in public interest---Ordinarily writ jurisdiction is not invokeable in the cases of public auctions and contracts involving contractual obligation and unsuccessful bidder may have no legitimate right to call interference of court in discretionary jurisdiction---Principle of locus standi is not strictly applicable in the cases of public importance and even a stranger can invoke the jurisdiction of court in such cases---Court, in a case of public importance, may ignore the technical objections and interfere in a matter in which decision was made adverse to the public interest or in an unfair, unreasonable or unjust manner.

Kay Bee International (Pvt.) Ltd., Islamabad v. Secretary to the Government of Punjab, Industries and Mineral Development Department, Lahore PLD 2002 SC 1074 fol.

(b) Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009--

----Art, 61---Power of judicial review by Supreme Appellate Court---Scope---Case of public or national importance---Enforcement of fundamental Rights---Locus standi, principle of---Applicability---Scope---Held, in case of an adverse order even a person who is not party in the proceedings can invoke jurisdiction of judicial review of Supreme Appellate Court and Court in exercise of extraordinary power of judicial review under Art.61 of the Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 may not give any importance to the question of locus standi in such cases of public and national importance or involving question relating to the enforcement of Fundamental Rights of the people.

(c) Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 71---Writ petition before Chief Court---Maintainability---Scope--Matter of public importance relating to enforcement of fundamental Rights or involving important question of law---Held, in the cases of public importance the jurisdiction of the Court can be invoked by any person in public interest---Technical objection regarding main­tainability of writ petition is not entertainable in a matter of public importance relating to the enforcement of Fundamental Right---Matter involving important questions of law would require decision on merits in the interest of substantial justice.

Pakistan in Benazir Bhutto's case PLD 1988 SC 416 fol.

(d) Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

---Arts. 71 & 61---Judicial review---Scope---Decision taken or order passed by the public functionaries if lacked procedural or substantive transparency or is found tainted with the element of mala fide, unfair, unjust or is based on unreasonable consideration or is the result of improper exercise of discretion vested in a public authority or is found adverse to the public interest is not immune from the judicial scrutiny of the courts.

(e) Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 71---Judicial review---Public auction---Aggrieved person---Natural justice, principles of---Applicability---Scope.

The principle of natural justice is that if an order adverse to the right of a person is passed in his absence, the same would be considered to have been passed in violation of principles of natural justice, but if a decision is made without any adverse interest or causing prejudice to any legal or substantive right of any person he may have no right of hearing in the light of principles of natural justice.

If an order adverse to the right of a person is passed by an authority, behind his back and without notice, the order being violative of principles of natural justice, would not be sustainable in law. The principles of natural justice and rule of audi alteram patrem are universal principles of law which must be followed by all judicial, quasi judicial and administrative authorities in the matters which involve rights of others but the principle of natural justice may not be invariably applicable in all matters before the administrative authorities and public functionaries without infringement of a legal right of a person.

In the present case, the petitioner, bidder in a public auction, claimed right of hearing without any substantive right rather he being interested in fresh bid in terms of order of bidding committee contested the legitimate claim of respondent for grant of contract. The petitioner having offered a non-responsive bid would have no right of contract and also would not be considered an aggrieved person but he having the interest to participate in the re-auction, may have right to defend the order of recall of bid tender.

(f) Public auction---

----Bid---Rights of a bidder---Scope---Natural justice, principles of---Applicability.

Bid is an invitation to offer and unless it is finally accepted or rejected by the competent authority no right enforceable at law is created in favour of any bidder and an unsuccessful bidder may have no right to claim re-auction unless the order of acceptance of a bid in the public auction passed by an executive or administrative authority is declared illegal. The law is that if an order of acceptance of bid in public contract is blended with mala fide, unfair, unjust, arbitrary exercise of power or lack of transparency in the transaction may not create any legal right in favour of a successful bidder.

Notwithstanding the fact that petitioner had no vested right to resist the claim of respondent, he would be entitled to the right of hearing in the application filed by him in the' matter to satisfy the requirement of natural justice which is read as part of every statute and grant of such right to the petitioner would have no other effect except that in case of rejection of representation of respondent he would have a right to participate in re-auction subject to the fulfilment of mandatory conditions. In strict sense the respondent had an ascertainable claim with an enforceable right under the administrative law, whereas the claim of petitioner in respect of his non responsive bid or participation in re-auction on rejection of representation of respondent was not a remedial right or a superior right in law to be enforced in preference to the right of respondent, still the principle of natural justice would demand that the petitioner who was also in competition for grant of contract, should have been provided fair chance of hearing in support of his claim.

This is right of a person subject to the fulfilment of required qualification to participate in the public auction and in case of illegal or arbitrary rejection of his bid, he may avail the legal remedy for redressal of his grievance in accordance with law.

(g) Administrative law---

----Action by administrative authorities---Scope and extent---'Administrative' and `quasi judicial power'---Distinction.

The administrative law is part of constitutional law which relates to the administration of the affairs of State and subject to the control of judicial authorities of abuse or access of exercise of discretion in the matter involving public right the administrative authorities are independent in their functions within the scope of their power and jurisdiction under the law. The administrative authorities cannot act in departure to the policy of law and also have no absolute prerogative to act and exercise administrative power in violation of the civil rights of the people rather these authorities are required to exercise the power in strict observance of law to accomplish their duty. The administrative power and quasi judicial power with the public authorities is differentiated on the basis of the nature of power conferred on a person and frame work of law under which such power is conferred as well. as the manner of exercise of power and the consequential order passed in a matter. In the civilized societies all organs of the State are supposed to be regulated and controlled by rule of law and concept of rule of law may lose its vitality if the State functionaries are not charged with the duty of discharging their functions in a fair and just manner showing that administrative actions were taken justly and fairly which were not arbitrary and capricious. The dividing line of 'administrative' and `quasi judicial' power is that in quasi judicial decisions, the procedural formalities of law are considered inherent for exercise of power and these formalities are almost merely facilities of law which may have no substantive effect on the ultimate decision but violation of these procedural formalities may create doubt in respect of the transparency of the decision and consequently an executive authority while exercising administrative powers under statutory law or exercising the quasi judicial power is required to pass an order in respect of the rights of a person in judicious manner so that not only the rule of propriety but also the principles of natural justice are not in any manner offended.

(h) Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Arts. 71 & 61---Judicial review---case of public interest---Held, in the cases of public interest if an element of partiality or undue favour or a slight substantial irregularity is found on record which may create doubt in the mind of a common man regarding the transparency of the transaction, the Court may not hesitate to interfere in the matter.

(i) Constitution of Pakistan---

----Arts. 258 & 1(2)(d)---Government of territories outside Provinces---Gilgit-Baltistan---Status of.

Gilgit-Baltistan is not a province of Pakistan or part of Capital Territory of Pakistan rather by virtue of Article 1(2)(d) of the Constitution being considered an area included in Pakistan, is under the administrative control of Government of Pakistan and subject to the laws of Pakistan would be governed by Northern Areas Governance Order, 1994 substituted by Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009.

(j) Public Procurement Regulatory Authority Ordinance (XXII of 2002)---

----Art. 2(j)---Public Procurement Rules, 2004, Rr.48, 35, 36, 37 & 38---Northern Areas Governance Order, 1994, Art.3---Constitution of Pakistan, Arts.258 & 1(2)(d)---Public Procurement Regulatory Authority Ordinance, 2002 and Public Procurement Rules, 2004 having overriding effect on the departmental instructions or the Rules of Business of Government of Gilgit-Baltistan, would govern all procurement contracts in Gilgit-Baltistan and the Chairman Northern Areas and Secretary KA & NA Division would have exclusive jurisdiction to deal with the matter and no other departmental authority in the Provincial or Federal Government was competent to interfere in the matter---Chairman Northern Areas being controlling authority would be competent to interfere in the affairs of Government of Gilgit-Baltistan and the representation in the form of a complaint under Rule 48 Public Procurement Rules, 2004 before the Procuring Agency was rightly entertained by him in exercise of power under Article 3 of Northern Areas Governance Order, 1994---Secretary KA&NA Division being incharge of administrative Division could competently deal with the complaint under Rule 48 of the Rules, 2004---Power and procedure of rejection or acceptance of bid elucidated.

(k) Gilgit-Baltistan. (Empowerment and Self-Governance) Order, 2009---

----Art. 61---Judicial review---Public auction---Mere technicalities or minor procedural irregularities in the proceedings of bidding Committee, the Procurement Agency and also the order of departmental Secretary may not directly or indirectly effect the validity of the order calling for interference of Supreme Appellate Court.

(l) Mala fide---

----Concept and meaning.

The question of mala fide is a matter of evidence and mala fide in fact is a state of mind of ill-will, hatred or hostility of one person towards another person to do a wrongful act without a legal excuse or justification. Malice is a positive desire and intention of a person which induces him to injure and defame or cause damage to another person. The malice in law is intentional performance of an act with just and lawful excuse or wilful violation of law or right or privilege of others with the intention to do a wrong or cause injury to another person or to get undue benefit disregard to the right of others. The presumption of malice in fact or law cannot be raised by mere fact that an action of an official authority was not in consonance with spirit of law.

The mala fide in fact means a malicious act done or an action taken in bad faith or with the motive of benefit as against to the public interest and mere a wrong action taken by a public authority or an action taken without lawful authority is not considered a mala fide action unless the element of malice or the ulterior motive for taking a wrong action is proved. The presumption of unfairness and mala fide cannot be raised merely on the basis of an allegation that action was wrong in law is not sufficient to hold the case mala fide.

Mala fides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it, because, there is, to start with, a presumption of regularity with regard to all official acts, and until that presumption of regularity with regard to all official acts, is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. Mala fides must be pleaded with particularity, and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case.

Federation of Pakistan v. Saeed Ahmed Khan PLD 1974 SC 151 ref.

(m) Gilgit-Baltistan (Empowerment of Self-Governance) Order, 2009---

----Art. 61---Judicial review---Scope---Public auction---Mala fide---Mala fide, unfairness, unjust, unreasonableness or bias and favouritism or improper exercise of the discretion in the public auctions and contracts by the public authorities or such other matters of public importance are valid and legal reasons for interference of courts but if no such reason is found in a transaction, the same would be deemed to have been conducted in quite transparent manner and no presumption to the contrary would be raised on the basis of mere assertion---Supreme Appellate Court, in exercise of power of judicial review is not supposed to import new facts or to allow to plead new facts which are not part of record to raise the presumption of mala fide--Courts are not supposed to frequently interfere in the administrative decisions unless there is a valid reason to show improper or illegal exercise of jurisdiction by an administrative authority.

PLD 1992 SC 2266 and Messrs Ramna Pipe and General Mills (Pvt.) Ltd. v. Messrs Sui Northern Gas Pipe Lines (Pvt.) and others 2004 SCMR 1274 ref.

(n) Gilgit-Baltistan (Empowerment of Self-Governance) Order, 2009---

----Art. 61---Judicial review---Scope---Administrative decision/action---Reasonableness, doctrine of---Meaning and Scope---Reasonableness of an action is the degree of care taken in dealing with a matter involving rights of others which are taken by a person of ordinary prudence in the use of his property---Rule with regard to exercise of power of judicial review in respect of administrative decision and action is that court should not substitute its judgment and decision for the order and action of a public authority rather the function of the court is to determine the reasonableness of the order by considering the facts and circumstances and the evidence in the manner in which a reasonable man would determine reasonableness in such matter---Reasonableness of an order---Test.

The doubt as to non-reasonableness of an action must be actual and substantial arising from the fact as distinguished from a vague apprehension and also must be fair in the common sense and the state of mind which after fair comprehension and consideration of the evidence and also the facts and circumstances of the case creates an impression of doubt on the mind of a person of ordinary prudence. Rule of reasonableness required to be applied in dealing with the matters of public importance is that no element of unfairness, mala fide or personal interest making the order unjust and unreasonable should appear in the mind of a reasonable person.

The true test of reasonableness of an order or an action of a public authority is that in the ordinary circumstances it is not beyond the expectation or judgment of common man and also is not considered arbitrary, capricious and confiscatory in the estimation of a common person. The court while judging the reasonableness of an order on the above test if comes to the conclusion that the order lacks necessary diligence and care required to be taken in the matter of public importance may raise presumption of unreasonableness of an order but no such presumption can be raised merely on the basis of hearsay reasons which do not satisfy the mind of a reasonable person.

The criteria to judge the legality of an order of an executive or judicial authority is judged in each case on the basis of facts and circumstances of the case and not on the basis of a general rule not otherwise attracting in the facts of a particular case.

The administrative authorities while dealing with the matters involving rights of a person must exercise power with extra care and administer the law in respect of such rights in judicious manner but the strict observance of judicial procedure of courts being not requirement of administrative law, an executive or administrative authority before making decision need not to hold an inquiry or conduct an investigation into the matter as in the cases of judicial decisions unless an inquiry or investigation is considered an obligatory determinative factor for the decision under the statute. The public authorities are not required to necessarily act judicially in a matter under consideration before them unless the law in express or implied terms requires to follow the judicial procedure for an administrative decision.

Federation of Pakistan v. Saeed Ahmed Khan PLD 1974 SC 151; Ms. Ittihad Cargo Service v. Syed Tehseen PLD 2001 SC 116; Pakistan State Oil Company v. Muhammad Naqi 2001 SCMR 1150 and Petrosin Corporation v. Oil and Gas Development Company 2010 SCMR 306 ref.

(o) Gilgit-Baltistan (Empowerment of Self-Governance) Order, 2009---

----Part II & Art.61---Fundamental Rights---Enforcement---Scope---Public auction---Participation in a public auction subject to fulfilling requisite qualification is a legal right of a person and a wrong action in respect of such right in breach of the law is actionable at law; therefore a successful bidder in an public auction may on wrongful rejection of his bid by availing the legal remedy take action for enforcement of his right but an unsuccessful bidder cannot defeat the legitimate right of contract of successful bidder on the basis of claim of re-auction for technical reasons---Principles.

(p) Discretion---

----Administrative discretion---Meaning and Scope---Presumption of undue favour---Inference.

The discretion in plain words is that in the facts of a particular case what decision is to be taken in the guidance of law and decision to the expectation of a person may not be absolutely right rather the determinative factor is that the same is within the scope of law and is in the interest of justice. The administrative authorities and public functionaries do not have uncontrolled discretionary jurisdiction to decide a matter absolutely in their choice rather this power demands equitable decision which is just and proper under the circumstances of the case. The discretion is power of performing in ones own judgment without control of others and thus this power confers a right upon the official authorities for doing an act under the certain circumstances according to the dictate of their own judgment and conscious uncontrolled by the judgment and conscious of others.

There is no concept of unfettered discretion in law rather all administrative and judicial "authorities have to exercise the discretionary jurisdiction in a reasonable, rational and proportionate manner. The unreasonable exercise of discretion may give rise to the presumption' that the order was motivated for some extraneous consideration and was not dealt with fairly and in a case of exercise of discretionary power by a public authority in an unreasonable manner the superior courts may in exercise of power of judicial discretion interfere and pass an appropriate order to advance the cause of justice and rule of law.

The exercise of discretionary power beyond the limits and comprehension of a person of ordinary intelligence is unreasonable, irrational and improper and an order passed in improper exercise of jurisdiction is treated without lawful authority. The principle is that exercise of discretion by the public authorities in the matter involving public interest in an improper manner is considered a substantial error in exercise of the jurisdiction which is deemed to have not been exercised in good faith or public interest. If an official transaction of public importance involves an element of a reasonable doubt or personal interest, undue favour, unfairness or for a consideration other than the public interest, the presumption that order was not bona fide can be raised but no such presumption can be raised merely on the basis of general allegation without the support of substantial material. The doubtful character of the transaction must be proved to have been polluted with bad faith or consideration not within the compass of good faith which may give rise to the presumption that transaction was not transparent but in absence of any evidence direct or circumstantial the raising of such presumption is illegal exercise of jurisdiction.

This may not be fair to raise a presumption of undue favour or undue influence and unfairness or extraneous consideration for exercise of discretion merely for the reason that an authority which has passed an order was also empowered to pass a contrary order in his discretion in same set of circumstances. The plea of personal interest, extraneous consideration, undue favour or influence or mala fide without support of any substantial evidence may have no basis and law would not permit for drawing a presumption or an inference merely on the basis of suspicion or self created doubt of unfairness of an order or transaction. The law is that initial presumption of correctness attaches with the official acts, transaction and business and also in favour of bona fide of an order, therefore, unless this presumption is rebutted through evidence direct or circumstantial, the legality of a public transaction or an order of a public authority cannot be interfered merely on the basis of unfounded and general allegation of mala fide, unfairness or unreasonableness.

1997 SCMR 641 ref.

(q) Gilgit-Baltistan (Empowerment of Self-Governance) Order, 2009---

----Arts. 61 & 71---Writ jurisdiction, an equitable and discretionary jurisdiction---Public auctions and contracts---Administrative discretion---Interference by superior courts---Scope and extent.

The writ jurisdiction of the courts is equitable and discretionary jurisdiction which is different from the ordinary jurisdiction and judicial discretion in exercise of judicial power in accordance with spirit of law must be based upon the facts and circumstances of the case brought before the court in which the court may draw a conclusion deserved by law. The discretion conferred by law upon the court in judicial matter is a legal discretion to be exercised in conformity with the spirit of law and in a manner to subserve and not defeat the ends of justice and similarly the exercise of discretion by the public functionaries while dealing with the matter involving rights of others should be in the spirit of law to advance the cause of justice in the manner that their order may be construed to mean fair, just and proper and may not be interfereable in judicial discretion. The principle is that courts in discretionary jurisdiction will not substitute their opinion and judgment with the opinion and the judgment given by the executive authorities or public functionaries in their discretion unless the discretion exercised by such authorities is arbitrary, capricious and unreasonable in law and facts of the case.

The superior courts in Gilgit-Baltistan in exercise of power of judicial review under Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009 may issue directions/orders and writs to an authority or government discharging executive functions under any statute but the encroachment upon decision of an executive authority in departure to the principle of the distribution of powers between the legislative, executive and the judiciary would amount judicial invasion and would be contrary to the spirit of law. In exercise of writ jurisdiction the court cannot substitute itself for an executive authority or assume the jurisdiction in a manner which may suggest that court has taken upon itself the responsibility of the executive authority or exercise judicial authority in the form of executive order rather the function of the court is only to issue directions to the administrative or executive authorities in a matter which falls within the ambit of judicial review of the courts. The improper-or illegal exercise of jurisdiction by an executive authority or exercise of jurisdiction not vested under law in departure to the law with overriding effect injurious to a justiciable right of a person is undoubtedly subject to the Judicial scrutiny of the court but an order of an executive authority may not call for interference merely for the reason that the court is competent to exercise jurisdiction.

The superior courts following the principle of judicial restraint if in a case of public importance form an opinion that public interest has been impaired or has not been properly safeguarded may in exercise of the power of judicial review interfere in the matter and the court, without taking any exception to the proposition of law that an order passed by a public functionary or a departmental authority if is found tainted with an element of mala fide, personal interest or adverse to the public interest would be deemed to have been passed without lawful authority. The above rule is subject to the exception that the courts in their extraordinary jurisdiction may not frequently interfere in the public auctions and contracts and disturb the functioning of public authorities in discretionary jurisdiction unless reasonable grounds to believe are shown that transaction did not fulfil the required standard of transparency or an order was adverse to the public interest.

The court may not hesitate to interfere in a matter in which an executive authority or a public functionary passed an order for a consideration other than public interest or for the reason behind the scope of law and if in a matter of public importance, the element of mala fide, unreasonableness, unjust and unfairness is traceable on record or it is found that discretion has been improperly exercised for some personal interest or benefit or for a consideration other than the public interest, the court may in writ jurisdiction declare a public auction or contract without lawful authority.

Tariq Transport Company, Lahore v. Sargodha-Behra Bus Service, Sargodha and others PLD 1958 SC 437 ref.

(r) Gilgit-Baltistan (Empowerment of Self-Governance) Order, 2009---

----Arts. 60 & 61---Ordinary or extraordinary jurisdiction of Supreme Appellate Court-Administrative order---Presumption of male fide and doubting the fairness of an order passed by public authority---Scope.

Supreme Appellate Court exercising ordinary or extraordinary jurisdiction under Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 without any positive proof or plausible reason appealable to mind is not supposed to raise the presumption of mala fide and doubt the fairness of an order passed by a public authority. The court also may not take judicial notice of a matter or consideration which is not within the compass of the facts of a case and draw an inference of bad faith. This is not legal to draw an adverse inference against an order of public authority in ordinary circumstances without any proof of malice or personal interest of such authority. The allegation of mala fide or unjust and unfairness or reasonableness of an order must be proved on record to establish that order was not transparent or the same was not in public interest.

(s) Gilgit-Baltistan (Empowerment of Self-Governance) Order, 2009---

----Art. 61---Judicial review---Scope---Contract carrying element of public interest is open to judicial review.

Messrs Ramna Pipe and General Mills (Pvt.) Ltd. v. Messra Sui Northern Gas Pipe Lines (Pvt.) Ltd. and others 2004 SCMR 1274 ref.

(t) Public Procurement Regulatory Authority Ordinance (XXII of 2003)---

----Preamble---Public Procurement Rules, 2004---Breach of contract---Effect---Rights and obligations of contractor---Scope---Public procure­ment contracts are governed by the Public Procurement Regulatory Authority Ordinance, 2002 and- Rules framed thereunder, which is a special law on the subject---Failure of contractor to supply the goods at agreed price according to the schedule of supply may be a breach of contract which may cause delay the main project, therefore, Procuring Agency is obliged under the law to proceed against the contractor for appropriate action including cancellation of contract at his cost and risk in accordance with law---Contractors are not entitled to any claim beyond the scope of contract and law unless it is provided in the contract for payment of extra cost on the basis of acceleration of price if project is not completed within contract period and no such claim is entertdinable without determination of cause of delay or the reason of non-completion of project within time---Extra payment on the basis of acceleration of prices in the normal circumstances is undue favour to the contractors, which amounts misappropriation of government funds on the part of concerned officials, therefore, the officials involved in such matters must face the consequence of criminal charge and also departmental action for misconduct---Supreme Appellate Court observed that Chief Secretary, Government of Gilgit-Baltistan in cases of extra payment at the cost of burden on the exchequer may hold inquiry into the cause of delay or justification of extra payment to a contractor set the law at motion for action in accordance with law.

Muhammad Ibrahim Satti, Senior Advocate Supreme Court of Pakistan assisted by Javaid Iqbal for Petitioner.

Advocate-General for Respondents Nos.2 to 7.

Naeem Bukhari, Advocate Supreme Court of Pakistan for Respondent No.8.

Date of hearing: 11th June, 2010.

2010 GBLR 545

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. and Muhammad Yaqoob, J

ASSISTANT COLLECTOR CUSTOMS, SUST GOJAL---Petitioner

Versus

Syed MUHAMMAD RIAZ---Respondent Criminal

Miscellaneous No. 7 of 2010, heard on 8th July, 2010.

(a) Customs Act (IV of 1969)---

----Ss. 156(1)(8)(89) & 168---Foreign Exchange Regulation Act (VII of 1947), S.8---Criminal Procedure Code (V of 1898), Ss.516-A & 561-A--Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Seizure and confiscation of smuggled currency---Custody of seized currency to respondent on superadari by Chief Court under S.561-A, Cr.P.C.---Powers of Chief Court under S.561-A, Cr.P.C.---Scope---Chief Court could exercise power under S.561-A, Cr.P.C.; and pass an order for real substantial justice, but the provisions of S.561-A, Cr.P.C. could not be used as an alternate or additional remedy to divert the ordinary course of criminal procedure; or in departure to the normal remedies provided under the law---No extraordinary jurisdiction was available to the Chief Court under 5.561-A, Cr.P.C. in cases pending with Investigating Agencies---Such power was exercisable in rare cases pending before the courts in the interest of substantial justice---Such extraordinary power under S. 561-A, Cr.P.C. was not extendable to the criminal matters in investigation or to the cases in which the final report/challan had not been submitted before the court of competent jurisdiction; or no court had yet taken cognizance in the case---Final report, in the present case, was required to be submitted in the court of special Judge Customs established under Customs Act, 1969 read with Anti-Smuggling Act, 1977, but was submitted in the court of Sessions Judge with the impression that said court was competent to take cognizance in the matter, whereas no such power was available with the Sessions Judge to act as Special Judge Customs---Chief Court was also not supposed to deal with the case property for the purpose of custody under S.516-A, Cr.P.C. in exercise of powers under S.561-A, Cr.P.C.---No court of general jurisdiction or the Chief Court in original or revisional jurisdiction, could pass any order in respect of custody of property subject matter of the case registered under Customs Act, 1969, before taking cognizance of the case by the court of competent jurisdiction for the purpose of inquiry or trial---Petition for leave to appeal was converted into appeal by Supreme Appellate Court and order passed by the Chief Court under S.561-A, Cr.P.C. regarding the custody of seized currency was set aside.

Adnan v. Collector Custom Karachi PLD 1969 SC 446 ref.

(b) Criminal Procedure Code (V of 1898)---

----S.561-A---Powers of Chief Court under S.561-A, Cr.P.C.---Scope---Scope of powers of Chief Court under S.561-A, Cr. P. C could not be enlarged to the police investigation or to the cases, which were not pending in inquiry or trial before the court of competent jurisdiction.

Haji Mirza Ali for Petitioner.

Johar Ali for Respondent.

Date of hearing: 8th July, 2010.

2010 GBLR 550

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C.J. Syed Jaffar Shah and Muhammad Yaqoob, JJ

THE STATE---Petitioner

Versus

SADAQAT JAN---Respondent

Cr. P. L. A. No.4 of 2010, heard on 12th October, 2010.

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), Ss.6/7---West Pakistan Arms Ordinance (XX of 1965), S.13---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Qatl-e­amd, terrorism and possessing arms---Appraisal of evidence---Trial Court convicted and sentenced accused, but Chief Court set aside judgment of the Trial Court and acquitted accused by giving him benefit of doubt---Appeal against acquittal---Prosecution had established accusation of accused beyond shadow of doubt by producing cogent and concrete evidence, which had rightly been considered by the Trial Court---Defence Counsel could not succeed to shatter the veracity of the statement of the prosecution witness who narrated facts and directly connected accused with the commission of offence---Weapon of offence, .30 bore pistol, was recovered immediately after the arrest of accused from his personal possession---In presence of recovery memo, delay in lodging of F.I.R. under S.13 of West Pakistan Arms Ordinance, 1965, had no effect at all on the merits of the main case---Crime empty shell and live cartridges were sent to ballistic expert, which were examined and found to have been fired from the pistol recovered at the instance of accused---Number and type of weapon was the same, which was shown in the recovery memo---No fabrication or alteration of recovery memo.---Version of prosecution witnesses was consistent, confidence inspiring and worthy of credence which had rightly been taken into consideration and they by no stretch of imagination, could be labelled as interested witnesses---Prosecution had substantiated the allegations against accused beyond any shadow of doubt---Case against accused, in circumstances was fit for life imprisonment---Impugned judgment of Chief Court was set aside and that of the Trial Court was restored to meet the ends of justice.

(b) Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Maxim `Falsus in uno falsus in omnibus'---Applicability---Maxim had no universal application and it was bounden duty of the court to sift the grain from the chaff---For the elaboration of said maxim, it could be safely said that ordinarily integrity of a person was considered as indivisible; he was to be believed or disbelieved as in whole---Superior courts of subcontinent had frequently declined to follow the principle as in their vast experience, it was found that many a time, innocent persons were roped in to settle the account of old enmities---It was deemed expedient and just to undertake an exercise of sifting the grain of truth from the chaff of falsehood---If the courts would adhere the to rule "Falsus in uno falsus in omnibus" same would result in full holiday to the culprits.

Khairo v. State 1981 SCMR 1136 ref.

(c) Penal Code (XLV of 1860)---

----S.302(b)---False implication---False implication had almost become a phenomenon---Generally, it was found that while reporting the crime, an informant when happened to be a relative of deceased or otherwise, an interested person, he includes among the real culprits, the name of head of that family; or family members; enjoying respect and influence, to eliminate the aid and assistance, likely to be given to accused---Friends of accused or enemy of complainant, were roped in---Such a practice was most detestable, yet it was difficult to get rid of that evil.

Advocate General, Gilgit-Baltistan for the State.

Amjad Advocate, for the Complainant.

Malik Haq Nawaz, Sr. Advocate for Respondent.

Date of hearing: 12th October, 2010.

2010 GBLR 558

[Supreme Appellate Court]

Present: Muhammad Yaqoob, J

JAMSHID ALI, S.P. CRIME BRANCH, C.P.O and others---Applicants

Versus

CHIEF SECRETARY GILGIT-BALTISTAN and others---Respondents

Criminal Miscellaneous Application No. 9 of 2010, decided on 7th July, 2010.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 65---Gilgit-Baltistan Supreme Appellate Court Rules, 2008, O. V, R.3---Review petition---Petitioners had challenged the interim order passed by the Division Bench of Supreme Appellate Court---Registrar of Supreme Appellate Court had taken legal objections and directed to remove objections within three days---Petitioners filed appeal against legal objections raised by the Registrar, but same was not maintainable; and was liable to be rejected on the grounds that the contempt petition which was sub-judice, was a matter between the court and contemnor and third party would not interfere with contempt petition; that impugned order was purely interlocutory in nature and not the final one; that review petition filed by the petitioners against the order, was not competent until and unless it could obtain finality and affect the precious rights of any aggrieved party and that petitioners were not the party in the contempt proceedings before the court; and in circumstances were not competent to file petition---Supreme Appellate Court observed that if they were aggrieved from the order passed by the competent authority, they could avail remedy as provided under the law before competent forum.

Ali Nazar, Advocate-on-Record for Applicants.

Amjad Hussain, Advocate.

2010 G B L R 560

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

RAHIMULLAH and 3 others---Petitioners

Versus

THE STATE---Respondent

Cr.P.L.A. No.5 of 2010, heard on 13th October, 2010.

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

----Arts. 132, 133 & 150---Examination and cross-examination of witness---Right of cross-examination of a prosecution witness by the defence was very valuable right conferred by law in relation to the relevant facts stated by a witness in his examination-in-chief which was not only confined to the testimony of witness in examination-in-chief, but defence could put any relevant question to the witness in cross-examination to impeach his credibility---After cross-examination of a witness by the defence, the court could permit re-examination of a witness, if considered proper and necessary on a material question; which had been omitted by the prosecution to bring on record in his examination-in-chief, but the prosecution was not allowed to cross-examine the witness after cross-examination of defence in respect of the. facts narrated by him either in his examination-in-chief or cross-­examination---Party which called a witness, could cross-examine him, if he suppressed the truth in his examination-in-chief; and could also re-examine such witness, if a material fact had been omitted to bring on record in his examination-in-chief, but the party calling a witness could not cross-examine his own witness after cross-examination by the adverse party to impeach the credibility by his statement in cross-examination on any ground including the ground that witness in his cross-examination had made a contradictory statement adverse to the interest of prosecution---Court under Art.150 of Qanun-e-Shahadat, 1984, could in its discretion permit the party which called a witness to put any question to him which might be put in cross-examination by the adverse party, if the witness during examination-in-chief, deliberately conceded or suppressed a fact; and such witness was a hostile witness in terms of Art.150 of Qanun-e-Shahadat, 1984.

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

----Art. 151---Impeaching credit of witness---Credibility of a witness could be impeached by the party who called the witness; or by the adverse party---Adverse party subject to Qanun-e-Shahadat, 1984 could put any question to witness to impeach his credibility and court could also allow the party which called the witness to impeach his credibility by cross-examination, if the witness suppressed truth in examination­-in-chief.

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

----Arts. 133 & 151---Criminal Procedure Code (V of 1898), S.540---Calling a witness for re-examination---Declaring a witness hostile---Court at any stage in order to get the particular fact explained or remove the doubt, if any in respect of a fact of its own or on request of a party; could call a witness for re-examination, if dictates of justice and equity so required, but no such permission could be given to either party to fill in lacuna in the case or cover a gap in the evidence, adverse to the interest of other party---Court could exercise the power of recalling a witness for re-examination, if was of the view that recall and re-examination of a witness was necessary for just decision of the case to meet the ends of justice---Law having taken care of a situation in which an ambiguity was created in the statement of a material witness had empowered the court under S.540, Cr.P.C. to recall a witness for re-examination and permit the adverse party to cross-examine the witness after re-examination---If a witness in examination­-in-chief would make a statement adverse to the interest of the prosecution, the court could on the request of prosecutor, declare the witness hostile; and permit him to exercise the right of cross-examination of the witness, but there was no concept of declaring a witness hostile during his cross-examination by the defence---Right of cross-examination of defence was very valuable right; and if the witness knowingly or otherwise, in cross-examination would make a statement which would create doubt qua the truthfulness of prosecution case, the benefit of such doubt was always given to accused and could not be withheld in favour of prosecution---Hostility was a term which was relevant to the statement in examination-in-chief; and if a witness was allowed to be cross-examined by the prosecution after the cross-examination by the defence, the whole purpose of right of cross-examination of defence in the concept of criminal administration of justice and law of evidence, would be defeated; and provisions of Arts.133 & 151 of Qanun-e-Shahadat, 1984 relating to the examination and cross-examination of a witness; and impeachment of his credibility would be negated---Court could permit the prosecution to impeach the credibility of statement of its own witness, if the statement made by a witness in examination-in-chief was in deviation to his previous statement; or the statement was adverse to the interest of prosecution; but no such permission could be granted to the prosecution on the basis of averment of the statement of witness in cross-examination by defence---Logic of law was not in favour of grant of permission to the prosecution to cross-examine a witness after cross-examination of defence to impeach the credibility of his statement made by him in cross-examination.

Malik Haq Nawaz, Senior Advocate for Petitioners.

Advocate General Gilgit-Baltistan for the State.

Date of hearing: 13th October, 2010.

2010 GBLR 567

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

SHER ALI---Petitioner

Versus

THE STATE---Respondent

Cr.P.L.A. No.6 of 2010, heard on 28th September, 2010.

(a) Penal Code (XLV of 1860)---

----S. 489-F---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art. 1---Constitution of Pakistan, Art. 9---Dishonestly issuing a cheque-Offence under S.489-F, P.PC., would only be made out, if a cheque issued for payment of a loan or fulfilment of an obligation was dishonoured; and essential element to constitute offence under S.489-F, P.P.C. 4as that the dishonoured cheque was dishonestly issued---Purpose of insertion of said provision of law in P.P.C., was to curb the fraudulent and dishonest issuance of cheques for return of loan or discharge of financial obligations on cheques---Necessary requirement of law was to establish prima facie that cheque was dishonestly issued with the intention to fraud; and to ascertain the intention of fraud, it was essential to give notice to payee before the registration of case under S.489-F, P.P.C. for his criminal prosecution---Concept was, that a case under S.489-F, P.P.C., could not be registered against a person without the proper proof of the loan or a financial obligation for which the dishonoured cheque was issued---Police on recording oral information of commission of an offence under S.489-F, P.P.C., merely on the basis of dishonoured cheque was not obliged to straightaway proceed in the matter---At the first instance legal duty of Police was to require the informer to bring on record some proof of loan or any other obligation required to be discharged by a person, failing which the criminal prosecution could not be legal---Despite fact that offence was non-bailable, the straightaway arrest of a person for alleged commission of offence under S.489-F, P.P.C., without permission of concerned court, would amount to curtail his liberty in violation of Art.1 of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 read with Art.9 of the Constitution of Pakistan.

(b) Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, grant of---Sentence under S.489-F, P.P.C., was three years and offence under said section did not fall within the prohibitory clause of S.497, Cr. P. C. ---Withholding of bail in such cases would amount to pre-trial punishment.

PLD 1972 SC 81 ref.

(c) Penal Code (XLV of 1860)---

----Ss.489-F [as inserted by Criminal Law (Amendment) Order, 2002)] & S.420---Constitution of Pakistan, Art. 89---Dishonestly issuing cheque---Validity of Amending Ordinance---Offence under S.489-F, P.P.C. was created under Criminal Law (Amendment) Ordinance, 2002 issued on 25-10-2002 in pursuance of the Proclamation of Emergency in the Country on 12th October, 1999 which was validated by the Supreme Court and later was also given protection by Seventeenth Amendment in the Constitution and also was saved under Eighteenth Amendment---Ordinance issued by the President under Art.89 of the Constitution of Pakistan on expiry of period of four months, would be considered as a valid law even without placing the same before the Parliament for approval as it had been given constitutional protection under Seventeenth and Eighteenth Amendment in the Constitution of Pakistan---If S.489-F, P.P.C. was not a valid law and was no more part of statute in Pakistan, it could have no legal force in Gilgit-Baltistan---Question relating to the validity and constitutionality of provision of S. 489-F, P.P.C., essentially required decision along with the question whether on the basis of dishonourned cheque, prosecution under S.420, P.P.C. was justified---First question was a pure question of law, whereas the second question was a mixed question of law and fact which must be decided by the Trial Court.

PLD 2000 SC 869 ref.

(d) Constitution of Pakistan---

----Art. 89---Promulgation of Ordinance---Validation---Ordinance promulgated by President of Pakistan in exercise of his power under Art.89 of the Constitution of Pakistan, if was not placed before the Parliament within the prescribed period of four months for approval, same would stand expired; and if no further Ordinance in continuation of the repealed Ordinance was promulgated or enforced by the President, the repealed Ordinance would no more be a law of the land.

(e) Penal Code (XLV of 1860)---

----S. 489-F---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.17---Constitution of Pakistan, Art.25---Dishonestly issuing cheque---Burden of proof---Discrimination---Initial burden of proving an offence under S.489-F, P.P.C. that cheque was not dishonoured by accused's fault, but the bank was at fault, was against the basic concept of criminal law according to which an accused was considered innocent, unless he was proved guilty of charge---Placing of initial burden on accused to prove that cheque was not dishonoured by his fault in an offence under S.489-F, P.P.C., was open discrimination in terms of Art.25 the of Constitution of Pakistan; and Art.17 of Gilgit-Baltistan (Empowerment and Self-Governance)Order, 2009, wherein it was provided that all were equal before law and had equal protection of law---Burden of proving dishonest issue of cheque was on the prosecution; and at the same time the burden of proving that cheque was not dishonourned for the fault of accused, bat it was fault of bank, was on accused, which was against the basic principles of criminal law that prosecution beyond all reasonable doubts must prove accused guilty of charge.

(f) Criminal Procedure Code (V of 1898)---

----Ss. 526 & 561-A---Penal Code (XLV of 1860), Ss.409, 417, 420/34 & 489-F---Criminal breach of trust, cheating and dishonestly issuing a cheque---Transfer of case---Petition for---Petitioner had sought transfer of case from court at place S' to another court, alleging that Judicial Magistrate at placeS' was not only the cousin of the complainant, but vehicle in question was also being purchased for said Judicial Magistrate---Apprehension of the petitioner who was surety in the case that he would not get fair treatment at place was not unfounded, but was a valid reason for transfer of case---Serious allegations were levelled by the petitioner against Judicial Magistrate; that he having direct interest in the matter, by misuse of Judicial Office, put pressure on the petitioner for obtaining cheque from him for complainant who was his cousin and that by influence he managed withholding of bail of the petitioner for a considerable period, in an offence which was punishable with maximum sentence of three years---Judicial Office was a sacred trust and a Judicial Officer at the cost of dignity of Judicial Office must not indulge in such matters---Conduct of Judicial Magistrate, was unbecoming of a gentleman and a Judicial Officer---Criminal cases registered against the petitioner and others pending before Magistrate at place S' were ordered to be transferred to court at placeG' for trial by Sessions Judge at place `G'.

Muhammad Issa, Senior Advocate for Petitioner.

Date of hearing: 28th September, 2010.

2010 GBLR 576

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J. and Muhammad Yaqoob, J

MIRZA MUHAMMAD and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeals Nos. 6 and 7 of 2008, heard on 3rd August, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Qatl-e-amd---Appraisal of evidence---Sentence, reduction in---Mitigating circumstances---Evidence of prosecution witnesses was truthful, real inspiring and trustworthy and did not suffer from any material defect or contained any describable contradictions and discrepancies to create a slight doubt regarding the guilt of accused---Case of co-accused who was acquitted was distinguishable from the case of accused---Ocular evidence and injuries caused by accused to the deceased were supported by medical report, eye-witnesses and other circumstantial evidence---Eye-witnesses fully corroborated to each other on material points without any contradiction---Motive for the offence had been proved beyond any shadow of doubt---Statements of all the three eye-witnesses though had been recorded after six days of the occurrence without any explanation for such delay, but two other witnesses could be relied upon as their names appeared in the F.I.R. regarding the occurrence; and reliance could be placed on their statements---Occurrence had taken place on broad daylight, and F.I.R. having been lodged without delay, question of false. implication would not arise in the case---Eye-witnesses had shown their presence on the spot of occurrence---Accused was directly charged in the F.I.R. with specific role---Ocular evidence of prosecution witnesses was consistent and the defence counsel could not collect a single iota of a word after lengthy cross-examination which could benefit the accused---However, there were some extenuating circumstances---Both the parties were closely related and there existed no background of any previous enmity or deep rooted hostility between accused and the deceased---Present was not a preplanned case, but by chance meeting of both the parties, resulted in a sudden fight in which accused caused death of deceased---Minor contradictions in the medical and other circumstantial evidence, were available on the record---Said factors having made out a case for mitigation of sentence, lesser punishment of life imprisonment would meet the ends of justice---Death sentence awarded to accused by the Trial Court was converted into imprisonment for life and appeal against acquittal of co-accused was dismissed, in circumstances.

Advocate-General Gilgit-Baltistan.

Haji Jamal Khan, Advocate for Respondents.

Date of hearing : 3rd August, 2010.

2010 GBLR 582

[Supreme Appellate Court]

Present: Muhammad Nawaz Abbasi, C. J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

CHIEF SECRETARY, GILGIT-BALTISTAN and 3 others---Petitioners

Versus

ABDUL GHANI and another---Respondents

C. P. L. A. No. 5 of 2010, heard on 6th July, 2010.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XIV, Rr.3 & 5---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)---Suit for declaration-Non-framing of important and necessary issues---Plaintiffs filed declaratory suit with consequential relief to the effect that they were owners in possession of suit land which was duly allotted to them---Plaintiffs also prayed that the defendants be restrained from interfering and forcibly taking possession of suit land---Suit was resisted by the defendants who denied the plea of ownership of the plaintiffs and also the plea regarding undisputed possession of the plaintiffs over the suit land---Both courts below and Chief Court concurrently decreed the suit---Validity---During pendency of second appeal before the Chief Court, Deputy Commissioner and Tehsildar concerned conducted an inquiry regarding allotment order of the plaintiffs---Inquiry revealed that allotment made in favour of the plaintiffs was fake and bogus---Chief Court though made said inquiry report as part of the file, but did not consider the same---Both courts below including Chief Court had failed to apply their mind towards framing of important and necessary issues regarding the allotment order---Important issues and material questions should have been solved in first round of litigation---Framing of issues followed by judgment based on discussion on each and every issue in detail was a recognized principle, but courts below had violated the same---Justice had neither been done in the case nor seemed to have been done as entire exercise adopted by the courts below was without framing of necessary and core issues, which was abuse of process of law---Petition for leave to appeal was converted into appeal by the Supreme Appellate Court and was allowed---Impugned judgments and decrees of the courts below were set aside and case was remanded to the Trial Court with direction to decide the suit after framing of important and necessary issues.

Advocate General Gilgit-Baltistan for Petitioners.

Malik Shafqat Wali, Senior Advocate for Respondents.

Date of hearing: 6th July, 2010.