GBLR 2015 Judgments

2015 G B L R 1

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J. and Muzaffar Ali, J

The STATE and another---Appellants

Versus

MUHAMMAD AFZAL and others---Respondents

Criminal Appeals Nos. 2 of 2011 in Cr. P.L.A. No. 15 of 2010 and Criminal Appeal 1 of 2011 in Cr. P.L.A. No. 3 of 2011, decided on 30th October, 2015.

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

----Ss. 302, 109 & 34---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-i-amd, abetment, common intention, possessing unlicensed arms---Appreciation of evidence---Prosecution witnesses, who saw the occurrence at the spot in daylight, had given ocular account---Said witnesses were consistent with each other and had fully described the role of accused persons---Medical evidence had supported the version of prosecution---Accused had admitted the occurrence and the injuries on the head of the deceased---Nothing could be brought on record to show that prosecution witnesses and the eye-witnesses had any malice, or any animus against accused, so as to falsely implicate them in the case---Occurrence had taken place as at the site stated by the prosecution---Medical evidence supported the ocular version---Report of Fire-arms Expert with regard to pistol recovered from accused was positive---Chemical Examiner also examined hatchet recovered from accused and same was found covered with human blood---Said part of evidence supported prosecution evidence and it could not be discarded merely for non-association of private witnesses---Prosecution had successfully proved motive for the murder--- Statements of prosecution witnesses recorded under S.164, Cr.P.C., before Judicial Magistrate were in line with the statement recorded by prosecution witnesses before the Trial Court---Prosecution having failed to prove conspiracy against one of accused persons, co-accused was rightly acquitted from the charge---Prosecution version, which was fully proved against both accused persons, was more probable---Right of private defence, as pleaded by accused, could not be given---Supreme Appellate Court in view of mitigating circumstances, converted death sentence awarded to accused into imprisonment for life, while conviction and sentence of co-accused was set aside.

Gulraiz Akhter and another v. State 2008 PCr.LJ 586; State v. Sharafat alias Imran 2008 PCr.LJ 41 and Amal Shireen and another v. The State through AG PLD 2004 SC 371 ref.

Atta Muhammad v. The State 1968 SCMR 502; Niaz Muhammad alias Niazi v. The State 1996 PCr.LJ 394; Haji Nadir Khan and others v. The State 2003 PCr.LJ 1205; Muhammad Khan and another v. The State 1999 SCMR 1220; Jan Sher v. The State 1997 MLD 1154; Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120; Nasima Bibi v. The State 2008 PCr.LJ 613; Muhammad Safdar Bhathi v. The State 1987 SCMR 1215; Muhammad Sharif v. The State 1986 PCr.LJ 637 and Ejaz Ahmed alias Gandhi and another v. The State 1999 PCr.LJ 439 distinguished.

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

----S. 100---Right of private defence---Right of private defence, could be extended where reasonable apprehensions of danger had arisen from an attempt or threat to life---Private defence was a right of protection and not of aggression.

Advocate-General Gilgit-Baltistan along with Muhammad Issa, Senior Advocate on behalf of the Complainant (in Cr. Appeal No. 2 of 2011 in Cr. P.L.A. No. 15 of 2010).

Advocate-General Gilgit-Baltistan along with Muhammad Issa, Senior Advocate for Respondents (in Cr. Appeal No. 1 of 2011 in Cr. P.L.A. No. 3 of 2011).

Malik Haq Nawaz, Senior Advocate for Respondents (in Cr. Appeal No.2 of 2011 in Cr. P.L.A. No. 15 of 2010).

Malik Haq Nawaz, Senior Advocate for Appellant (in Cr. Appeal No.1 of 2011 in Cr. P.L.A. No. 3 of 2011).

2015 G B L R 24

[Supreme Appellate Court]

Before Raja Jalal-ud-Din, ACJ and Muzaffar Ali, J

Mst. RAQIA BEGUM and 4 others---Petitioners

Versus

SAFDAR ALI and others---Respondents

C.P.L.A. No. 88 of 2014, decided on 5th May, 2015.

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

----O. IX, R. 8 & O. XVII, R. 2---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Arts. 60, 69 & 71---Dismissal of suit in default---Suit was concurrently dismissed by the Trial Court and appellate court below for non-prosecution---Chief Court dismissed, concurrent findings of courts below---Validity---Order sheets maintained in the case, were very short, ambiguous, which revealed that Presiding Officer of the Trial Court was in a hurry and not in a state of mind to maintain the justice in accordance with law---Presiding Officer as well as the Reader of the court, were unaware of the importance of the order sheet in judicial matters and they acted like "Administrative Officers"---Presiding Officer had used the words "suit called for hearing" in the order sheet dated 20-9-2008 whereby, suit had been dismissed for non-prosecution---Suit had not been fixed, either for framing of issues or for adducing of evidence---Neither the case was fixed for final arguments, nor for "hearing" of the suit---Order sheet was maintained by the Reader of the court and the Reader under the law was authorized just to adjourn the case in absence of the Presiding Officer and to fix the case for "hearing"---District Judge/appellate court below, instead of curing the legal error committed by the Trial Court, agreed with the Trial Court---Order whereby the Trial Court, dismissed the suit, was without jurisdiction and void ab initio; it could not be allowed to stand---Chief Court, had very rightly recalled the orders passed by the courts below---Supreme Appellate Court, agreed with the Chief Court, petition for leave to appeal was declined and the impugned order was maintained---Case was remitted to the Trial Court with the direction to issue notice to the parties to attend the court, fixing any date in the summons and proceed the suit to adjudicate the same on merits.

PLD 1990 SC 813; 1991 SCMR 1104; 1993 SCMR 1949; 1997 SCMR 1986; 1978 SCMR 96; 1993 CLC 926; 1987 SCMR 733; 1991 MLD 63; 1983 SCMR 1092 and 2012-14 GBLR 172 ref.

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

----O. IX, R.8 & O.XVII, R.2---Procedure "where defendant only appeared" and "where parties failed to appear on the day fixed for hearing"---Order IX, R.8, C.P.C., would apply, where none of the plaintiffs appeared on the first date of hearing, while O.XVII, R.2, C.P.C., would apply to the day to which hearing of the suit was adjourned---Order XVII, R.2, C.P.C., provided the action of the court under O.IX, C.P.C.---Order IX, R.8, C.P.C., was mandatory in its nature, while O.XVII, R.2, C.P.C., gave a discretion to the court to take any action under O.IX, C.P.C., or otherwise to make any order, the court thinks fit in exercise of its discretion.

Muhammad Hussain Shahzad, Advocate for Petitioners.

2015 G B L R 30

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J. and Muzaffar Ali, J

CLEAN DRINKING WATER AT SKARDU: In re

Suo Motu Case No. 3 of 2009, decided on 19th November, 2015.

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

----Art. 61---Suo motu jurisdiction of Supreme Appellate Court---Matter relating to clean drinking water for people of Skardu city---Constitution of a Committee on the order of the Supreme Appellate Court to resolve the issue of provision of clean drinking water for the inhabitants of Skardu City---Said Committee submitted its report along with recommendations for improving quality of drinking water in the city---Supreme Appellate Court after perusing the said report directed that the main upper water supply complex on the city needed strengthening through provision of water quality testing equipment, which was to be undertaken by the works department; that the works department should ensure the operation of the water supply complex in accordance with the standard practices and the concerned Environmental Protection Agency (GBEPA) must monitor the water quality on monthly basis; that the Public Health Engineering Department, and District Administration of the city should cut the water supply lines of all vehicle service stations in the town in one month; that the District Public Health Engineering Department should install 35 more filtration plants in the city within one year and should initiate their PC-I for immediate installation; that the sites for installation should jointly be selected by a committee comprising of the District Administration, Representative of Chief Engineer of the concerned Division, and the Environmental Protection Agency; that if required, additional filtration plants should be installed in the city in the second phase to cover the requirement of the entire population of the city, and that a mechanism should be devised for proper maintenance of the filtration plants after their installation---Suo motu case was disposed off accordingly.

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

----Art. 61---Suo motu jurisdiction of Supreme Appellate Court---Matter relating to clean drinking water for people of Skardu city---Constitution of a Committee on the order of the Supreme Appellate Court to resolve the issue of provision of clean drinking water for the inhabitants of Skardu City---Said Committee submitted its report along with recommendations on issue of quality of water at Pakistan Tourism Development Corporation (PTDC) Motel at Satpara Dam---Supreme Appellate Court after perusing the said report directed that as Pakistan Tourism Development Corporation (PTDC) had already constructed wastewater treatment system according to the approved design and arrangements had been made to uplift and re-use the partially treated water for landscaping as suggested by Environmental Protection Agency (EPA), therefore, the Motel should be made operational at the earliest with the following conditions that the Pakistan Tourism Development Corporation (PTDC), management at Satpara would be responsible to operate the system in accordance with the best environmental practices such that no sewerage shall spillover or ingress in the reservoir; that the treatment system should be operated at the levels of irrigation water standards and be used for landscaping, and that the Environmental Protection Agency (EPA) should regularly monitor the operation of the treatment system, and issue and renew the certification of Pakistan Tourism Development Corporation (PTDC) annually---Suo motu case was disposed off accordingly.

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

----Art. 61---Suo motu jurisdiction of Supreme Appellate Court---Matter relating to clean drinking water for people of Skardu city---Constitution of a committee on the order of the Supreme Appellate Court to resolve the issue of provision of clean drinking water for the inhabitants of Skardu City---Said Committee submitted its report along with recommendations for the issue of "Upstream Satpara Dam"---Supreme Appellate Court after perusing the said report directed that the project "Satpara Dam Watershed Management" already initiated by Forest Department should be expedited and recommendation of Environmental Protection Agency must be incorporated in the said project; that the administration should establish Village Organizations in each village under the umbrella of a Non-Governmental Organization (NGO) (Satpara Development Organization) and provide resources, training, awareness and sustainability mechanism to stop people from washing clothes in the main Satpara Nullah and its tributaries; that the people should also be educated to keep away their cattle from clean drinking water sources; that the Forest Department, Works Department and Environmental Protection Agency should provide bioengineering techniques for slope stabilization and soil erosion for protection of water quality; that check dams and other infrastructure should be constructed to protect the Satpara Dam watershed, and that the Works Department should initiate feasibility study (PC-II) for establishment of mini sewerage treatment plant at Satpara village to protect water from contamination---Suo motu case was disposed off accordingly.

Advocate General, Gilgit-Baltistan.

Shaukat Ali, Senior Advocate on behalf of Pakistan Tourism Development Corporation (PTDC) Hotel, Skardu.

Muhammad Issa, Senior Advocate for Lake View Hotel.

Assistant Commissioner Skardu.

Director Environmental Protection Agency (EPA), Gilgit-Baltistan.

Project Director along with XEN Water and Power Development Authority (WAPDA), Baltistan Region.

Executive Engineer, Public Health Engineering (PHE), Skardu.

2015 G B L R 38

[Supreme Appellate Court]

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

NADRA AUTHORITIES: In the matter of

Suo Motu Case No. 12 of 2010, heard on 22nd June, 2011.

(a) Islamic law---

----Adoption of child---Scope---No prohibition on adoption of a child existed in Islam, however, as ordained in the Holy Quran in 'Surah Al Ahzab', the change of parentage of an adopted child, was strictly prohibited, because he was not natural child of adoptive parents, he could have the rights and privileges of his adoptive parents---Adopted child, could have all affections and love of adoptive parents and was entitled to all financial and other benefits from his/her adoptive parents---Adopted child, in Islam, had no right of inheritance in the property of his/her adoptive parents, but adoptive parents could willingly, during their life time, give their property to their adopted child by way of gift or will---Adopted child on attaining the age of majority, was at liberty to opt for the nationality of the country of his/her adoptive parents, or real parents, as the case may be, if the nationality of adoptive parents was different to that of the nationality of his/her natural parents---No codified law on adoption was promulgated in Pakistan, as adoption in Islam was based on the concept as ordained in 'Surah Al-Ahzab' and no law to the contrary could be enacted.

PLD 1957 Kar. 50; AIR 1955 Madh P 3097; Adoption: Shariah and Law and Holy Quran in Surah Al-Ahzab ref.

(b) Islamic law---

----Adoption---Adoption of a child of unknown parentage born in Muslim society---Adoption by non-Muslim---Scope---Such a child could not be a non-Muslim, as general presumption was that a child born in Muslim Society belonged to a Muslim family unless specifically proved that the child was not born out of Muslim wedlock, or his father was not Muslim by faith---Said presumption was rebuttable, and without rebuttal of the presumption by evidence, the custody of a Muslim child of unknown parentage, could not be given to a non-Muslim---Adoption of a child by a non-Muslim without proof that the child was born in a non-Muslim family, could result in conversion of a child into non-Muslim, and by compulsion without consent---Presumption, that parentless child in a Muslim Society was born in Muslim Family, was rebuttable through evidence of parentage before the court of competent jurisdiction and if it was proved that child was not born in Muslim Family, court could decide the question of custody of child accordingly---Non-Muslim could not be given custody of a deserted or parentless child or a child whose parentage was not known from an orphnage, or otherwise, Child born in non-Muslim family, could be adopted by a Muslim and his custody was to be regulated accordingly.

(c) Islamic law---

----Adoption/custody of child---Custody of a Muslim or non-Muslim parentless or a deserted child to a stranger---Scope---Custody of a Muslim or non-Muslim child in absence of his/her mother or father, could be given to a person in prohibitory degree on the basis of guardianship certificate to be issued by the court of competent jurisdiction, but in a Muslim State, the custody of a parentless and deserted child, or a child whose parentage was not known, could not be given by the Guardian Court to a stranger, without the permission of the concerned authorities because custody of parentless, deserted or children of unknown parentage was always considered to be with the State; and custody of such a child, could not be given by the court to any person, either Muslim or non-Muslim by adoption or otherwise without the permission of the State.

(d) Islamic law---

----Adoption--- "Adoption" and "guardianship of a child"---Distinction---Custody of a male or female child, could be given to the relatives on paternal or maternal line in the order of relationship in prohibited degree under Islamic law, and a person having relation with a child in prohibited degree, could act as guardian of a child without a formal order of the court, but there was nothing to prevent a person from applying to the court under the Guardians and Wards Act, 1890, for his appointment, as a guardian, or declare him to be the guardian of a child; but a person, was not bound to wait to seek such declaration, until, his/her title or fitness to act as guardian of a child was disputed by another person---Application for the appointment of a guardian, could be made, not only by a person desirous of being or claiming to be, the guardian of the minor, but also by any relative or friend of the minor, and in some cases by the Collector of the District---Right of custody of a child in case of boy under the age of seven years, and of a girl before attaining the puberty, belonged to the male and female relatives in the order of prohibited degree in the paternal and maternal line of child---Consideration for guardianship was based on the welfare of minor and his/her interest, rather than the interest of parents---Presumption that welfare of the minor lay with the party entitled to the Hizanat was rebuttable and if in a given case the circumstances justified to deprive a party, otherwise entitled to the custody under Islamic law, the court could pass an order accordingly---Adoption, on the other hand, had different consideration---Adoption of child, had no legal effect in Shariah, rather, it was for emotional and psychological satisfaction---Adoptive parents, could treat an adopted child as their natural child in the matters of love, affection and general behaviour---Adoption of a child with the purpose to provide shelter to him, was virtuous, which carried much reward in welfare of the child, but adoption had no legal consequence in Islam---Child should be attributed to the natural parents and not to the father or mother who had adopted him, and marriage of adopted children with natural children of adoptive parents, were not prohibited, unless they related to each other in prohibited degree---Adoption would not create a new legal relationship, which did not exist before adoption---Said Rule was inferred from the principle ordained by Holy Quran in 'Surah Al-Ahzab'---People in 'Jahiliyyat' used to treat an adopted child in all respect as the real one, and the Allah Almighty in Holy Quran, condemned that practice.

(e) Islamic law---

----Adoption---"Law in non-Muslim Society" and "Islamic law of adoption"---Distinction---Adopted child, in Islam could not claim right of inheritance in the property of adoptive parents and adoptive parents could not claim share in the property of their adopted son or daughter---Adopted child, in non-Muslim Society had all rights of natural child, including inheritance---In Islam adoption would not create natural relationship, whereas in other religions, adoption could create natural relationship of child with adoptive parents---Law in Pakistan, subject to the dictate of Holy Quran, in 'Surah Al'Ahzab', acknowledged the official recognition of an adopted child on the basis of a declaration made by adoptive parents, and also recognized the right of an adopted child of entitlement of all privileges of his/her adoptive parents as of right---Relationship of adoption inter se the adopted child and his/her adoptive parents, was also accepted by public and private social organizations in the society and acknowledged the right and privileges in such social organization and clubs etc., including membership of organization or club as the case could be, of an adoptive child on the basis of membership and rights of his/her adoptive parents, subject to the By-laws of the club or social organization---No prohibition existed for an adopted child in law from availing the facility and privileges of his/her adoptive parents in the society in a lawful manner, rather an adopted child in Muslim society, except the right of inheritance, had all rights of natural child of adoptive parents and an adopted child, was entitled in all privileges and facilities of his/her parents as of right, so much so, in Islam, in absence of any legal heirs of a Muslim in nearer or remote degree, an adopted child could also get the property of his/her adoptive parents.

(f) Islamic law---

----Adoption---Suo motu exercise/application for exercise of original jurisdiction of Supreme Appellate Court---Applicant submitted that custody of large number of minors belonging to Gilgit-Baltistan had been given un-authorizedly by Guardian Court to the foreigners by issuing guardianship certificate---Applicant prayed that matter could be intervened by Supreme Appellate Court so that the future of abandoned children of Gilgit-Baltistan could be saved in the larger interest of the State---Supreme Appellate Court held that adoption subject to the dictate of Holy Quran in 'Surah Al-Ahzab', was not prohibited in Islam; that Guardianship by itself, was not adoption of a child and adoption would require a proper declaration before the court of competent jurisdiction; that Guardian Courts in Gilgit-Baltistan in their respective jurisdiction, could exercise power under Guardians and Wards Act, 1890, but could not appoint a person as Guardian of a child in the custody of an orphanage centre; that adoption and appointment of adoptive parents as Guardian of a child, with the consent of natural parents/Guardians, was permissible, but a stranger to a parentless child in custody of orphanage centre, and child whose parentage was not known, could not be appointed as guardian without adoption of the child and permission of the Home Department, Government of Gilgit-Baltistan; that the custody of an adopted child on the basis of guardianship certificate, issued by a Guardian Court of Gilgit-Baltistan, could not be taken out of the jurisdiction of court without the special permission of court; that orphanage centers in Gilgit-Baltistan by following the provisions of Control of Orphanage Act, 1958, could get Guardianship Certificate in the name of natural or adoptive parents and in case of unknown parentage of a child in the common Muslim name, could obtain registration accordingly from NADRA on the basis of Guardianship Certificate to be issued by the court of competent jurisdiction; that Guardian Courts in Gilgit-Baltistan, would not issue Guardianship Certificate of a child in the name of a person out of prohibited degree without proper declaration on oath by a person intending to adopt a child before the court concerned and without prior registration of child with concerned NADRA Authorities in accordance with law; that Guardianship Certificate of a parentless child would not be issued without proper verification of the antecedents of the person seeking guardianship of the child, and NADRA Authorities could make registration of child on the basis of Guardianship Certificate and that adoptive parents had to give undertaking before NADRA Authorities to which the custody of child was required to be taken, that adopted child would not be taken to any other country, without prior intimation to the NADRA Authorities in the country of adoptive parents, and also to the concerned department of the said country---Supreme Appellate Court directed that orphanage centres immediately on taking a child into custody, would intimate the Home Department of the Government of Gilgit-Baltistan, and would maintain the record of all children in the custody of orphanage centres under intimation to the Home Department; that welfare organizations or orphanage centres, would not accept the custody of a child of unknown parentage without obtaining undertaking of the person who would bring the child to an orphanage centre about the origin of child; that welfare organizations, registered under the Voluntary Social Welfare Agencies Ordinance, 1961, could not run orphanage centre without proper authorization and registration with Controlling Authority of welfare organization and that Chief Secretary, Government of Gilgit-Baltistan and NADRA Authorities would take up the matter with Ministry of Interior Government of Pakistan for initiation of the process for enactment of law on "adoption".

Opinion expressed by official agencies of Saudi Arabia and Fatwas of renowned Ulmas with reference to Surah Al-Ahzab of Holy Quran quoted.

Advocate-General for Gilgit-Baltistan.

Saqib Jamal, Manager Legal, NADRA Headquarters, Islamabad.

2015 G B L R 85

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J. and Muzaffar Ali, J

CHIEF MINISTER and others---Petitioners

Versus

Justice (Retd.) MUHAMMAD KHURSHEED KHAN---Respondent

C. Misc. Nos. 113, 114 of 2015 in C. Appeal No. 25 of 2015 in C.P.L.A. No. 87 of 2015, decided on 30th November, 2015.

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

----Arts. 60 & 69(13)---Remuneration and other terms and conditions of service of employees of Chief Court---Entitlement of retired Chairman, Chief Court for pension and all post retirement benefits and privileges---Chief Court had accepted writ petition of respondent/retired Chairman, Chief Court and held him entitled for pension and all post retirement benefits and privileges as admissible to a Chairman of Chief Court---Government had filed appeal to Supreme Appellate Court against judgment of Chief Court, contending that respondent (retired Chairman, Chief Court) was given status of acting charge Chairman till appointment of regular Chairman of Chief Court; that respondent being a civil servant in BPS-21, had no locus standi to file writ petition; that Chief Court had wrongly entertained/adjudicated and decided said writ petition, despite having no jurisdiction---Petitioners, further contended that Chief Court was given the status of High Court in the year 2007, whereas the respondent retired on 13-11-2004; that doctrine of laches and principle of estoppel attracted in the case barring the respondent to file writ petition, as he remained silent for considerable period of 8 years---Petitioners, further contended that impugned judgment was the result of misconception of law, misreading and non-reading of material/notification and orders---Case-law referred by Advocate General on behalf of the petitioners/appellants, were applicable, whereas relied upon by the counsel for the respondent, was distinguishable--- Validity--- Respondent, admittedly retired on 13-11-2004, whereas vide notification No.F. No.1(16)/99. NA-II dated 28-4-2008, the Chairman and Members of the Chief Court, had been renamed as Chief Judge and Judges of the Gilgit-Baltistan Chief Court---Under Art.69(13) of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, the remuneration and other terms and conditions of service of Chief Judge and Judges of Chief Court would be the same as admissible to the Chief Justice and Judges of High Courts of Pakistan---Appeal was accepted and impugned judgment passed in writ petition by the Chief Court, was set aside, in circumstances.

West Pakistan Industrial Development Corporation, Karachi v. Aziz Qurashi 1973 SCMR 855; Chief Personnel Officer, Pakistan Railway Headquarter, Lahore and another v. Anjum Farooq and others 1997 SCMR 860; Mir Ghaiz Khan and another v. Chief Executive/Minister Kashmir Affairs/Northern Areas Division Islamabad 2007 SCMR 1300; Multiline Associates v. Ardeshir Cowasjee and others PLD 1995 SC 423; Choudhry Muhammad Saleem v. Fazal Ahmed and others 1997 SCMR 315; Grosvenor Casino Limited v. Abdul Malik Badar-ud-Din 1997 SCMR 323 and Babar Shahzad v. Said Akber and another 1999 SCMR 2518 ref.

2006 SCMR 1983; 1995 SCMR 650; 2005 SCMR 25 and PLD 1996 SC 324 distinguished.

Advocate-General, Gilgit-Baltistan along with Assistant Advocate-General, Gilgit-Baltistan for Petitioners.

Muhammad Issa Senior Advocate along with Asadullah Khan, Advocate and Johar Ali, Advocate-on-Record for Respondents.

2015 G B L R 95

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J. and Muzaffar Ali, J

ASHRAT and another---Petitioners

Versus

The STATE---Respondent

Cr. P.L.A. No. 2 of 2015, decided on 2nd September, 2015.

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

----S. 497---Penal Code (XLV of 1860), Ss.324, 336, 337-A(iii) & 34---Attempt to commit qatl-i-amd, Itlaf-i-Salahiyyat-i-Udw, causing Shajjah-i-Hashimah, common intention---Bail, grant of---Inordinate delay in lodging FIR and delay regarding recovery of articles had not been explained---No reason for not associating any independent private witness, was given---Civil disputes between the parties, were pending before civil court---Statements of the prosecution witnesses were also recorded after unexplained delay of 24 days of the occurrence; which had created serious doubts in prosecution case, benefit of such delay could be given to accused persons at bail stage---Petition for leave to appeal was converted into appeal and accused persons were granted bail by Supreme Appellate Court, in circumstances.

Tariq Bashir v. The State PLD 1995 SC 34 ref.

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

----S. 497--- Grant/refusal of bail--- Principles--- Question of grant/refusal of bail, was to be determined judiciously, having regard to the facts and circumstances of each case---Where the prosecution would satisfy the court, that there were reasonable grounds to believe that accused had committed the crime falling under the category of offences punishable with death or imprisonment for life, or imprisonment for ten years, the court must refuse bail---Where accused would satisfy the court that there were no reasonable grounds to believe that he was guilty of such offence, then the court must release accused on bail---For arriving at the conclusion as to whether or not there were reasonable grounds to believe that accused was guilty of offence punishable with death, imprisonment for life or imprisonment for ten years, the court would not conduct a preliminary trial/inquiry, but would only make tentative assessment i.e. would look at the material collected by the Police for and against accused and prima facie be satisfied that some tangible evidence, could be offered; which if left unrebutted, could lead to the inference of guilt---Deeper appreciation of evidence and circumstances appearing in the case was neither desirable nor permissible at bail stage---Court would not minutely examine the merits of the case or pleas of defence at bail stage---Bail order must be carefully balanced and weighed in scale of justice and requirement of relevant law.

(c) Bail---

----Benefit of doubt---Scope---Question of benefit of reasonable doubt, was necessary to be determined, not only while deciding the question of guilt of an accused, but also while considering the question of bail, because there was a wide difference between the jail life and free life.

Amjad Hussain, Advocate for the Petitioners not present his associate is present who is not Advocate of this Court, cannot proceed.

Sher Madad, Advocate-General Gilgit-Baltistan for the State.

2015 G B L R 98

[Supreme Appellate Court]

Before Raja Jalal-ud-Din, Actg. C.J. and Muzaffar Ali, JJ

MUHAMMAD ISMAIL---Appellant

Versus

VICE-CHANCELLOR KARAKORAM INTERNATIONAL UNIVERSITY GILGIT and another---Respondents

C. Appeal No. 9 of 2014 in C.P.L.A. No. 78 of 2014, decided on 30th November, 2015.

Civil service---

----Appointment---Regularisation of service---Petitioner/appellant, who served the University as Contract Lecturer (BPS-17) in Computer Science Department from 2006 to 2009; after obtaining leave without pay to get Higher Education abroad; got admission in a foreign university and succeeded to get degree of (M.Phil)---Directives, were issued by the Supreme Appellate Bench to the university to regularize the contractual service of Lecturers as a matter of right on the basis of their contractual appointments---University regularized services of eleven lecturers in compliance of said orders/directives, without fresh interview/test on the basis of their contractual employment---University had shown discriminatory attitude in cases of appellant refusing the right accrued to him at par with other petitioners---University declined regular appointment of the petitioner/appellant on the pretext of his failure in the fresh interview conducted by Selection Board---Writ petition by petitioner against the order of the university before the Division Bench of the Chief Court, was dismissed---Eleven contract Lecturers had been regularized without any test/interview on the basis of their contract service; diversity was seen in the attitude of the university, when they refused to adjust some contractual Lecturers including petitioner without assigning any reason; despite, the right of contract Lecturers had been recognized to be adjusted against the regular posts on the basis of their contract service---Selection Board, had deviated from ratio decidendi laid down by the Judgments of Superior Courts---Division Bench of Chief Court in the impugned judgment, had not only taken altogether a new view than that of its previous view, but took divergent view as taken by the Supreme Appellate Court---Impugned judgment, was set aside by the Supreme Appellate Court and the university was directed to adjust appellant on the basis of his contractual service, in circumstances.

Muhammad Issa, Senior Advocate along with Munir Ahmed, Advocate for Petitioner.

Mir Akhlaq Hussain, Advocate for Respondents.

2015 G B L R 104

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J.

50% HARD AREA ALLOWANCE OF CONTROLLER OF MILITARY ACCOUNTS AND OTHER: In the matter of

Civil Miscellaneous No.92 of 2014 in S.M.C. No. 4 of 2010, decided on 18th September, 2015.

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

----Art. 61---Suo motu jurisdiction of Supreme Appellate Court---Matter concerning 50% hard area allowance for employees of Controller of Military Accounts and others ("petitioners")---Plea on behalf of petitioners that the Supreme Appellate Court had ordered in one of its judgments (SMC No. 04/2010 dated 02.06.2011) ("the judgment") that employees of Controller of Military Accounts being paid from defence budget, would be equally entitled to the privileges conferred upon other employees of Federal Government serving in Northern Areas without any distinction; that said 'judgment' had not been implemented by the Military Accountant General; that freezing of special pay and allowances of petitioners should be declared null and void as it was a violation of the 'judgment'---Validity---Supreme Appellate Court directed that the petitioners should approach the Chief Court (Gilgit-Baltistan) for the implementation of the 'judgment' ; that the civil employees of Directorate General ISI serving in Gilgit-Baltistan or any other employees of Federal Government serving in Gilgit-Baltistan who were also entitled for such allowances and were not party to present case may in pursuance of the 'judgment' of Supreme Appellate Court approach the Chief Court (Gilgit-Baltistan) for their lawful claims and grievances, and that such civil servants/defence personnel should be treated equally amongst equals---Application in suo motu case was disposed of accordingly.

Johar Ali, Advocate for Petitioners/Employees of various Departments.

2015 G B L R 107

[Supreme Appellate Court]

Before Raja Jalal-ud-Din, Actg. C.J. and Muzaffar Ali, J

IFTIKHAR ALI---Petitioner

Versus

KARAKORAM INTERNATIONAL UNIVERSITY - KIU ROAD KONODAS GILGIT, through Vice Chancellor KIU and others---Respondent

C.P.L.A. No. 85 of 2014, decided on 19th October, 2015.

(a) Civil service---

----Appointment---University advertised two posts, one post of Assistant Professor (BPS-19) on regular basis and other on contract basis---Appellant was appointed against the contract post, while respondent was appointed against the regular post---Selection Board, on appeal from the appellant, instead of deciding appeal on merits issued termination of contract of service of the appellant before expiry of the last extended contractual period, along with a permanent restriction to the effect that, the appellant was debarred for all kinds of employments arising from time to time at the University; for conduct and behaviour of appellant---Division Bench of the Chief Court under writ jurisdiction concluded that termination order and the restriction imposed therein, was not tenable in the eyes of law, but at the same time, it erred in law by dismissing the writ petition and by refusing the legal remedies sought---Authorities, instead of going into merits of the matter, deprived the petitioner/appellant from his Fundamental Right to apply against any post to which, he otherwise was qualified, without bringing any cogent reasons on record---Even the State, could not deny the protection and safeguard against the discrimination without reasons---Authorities imposed perpetual restriction against petitioner/appellant without any proof---Petitioner/appellant, had been appointed on contract basis, though against a leave vacancy, but in a prescribed manner--- Appellant, was short listed and he qualified the test/interview---Contract service of the appellant, was extended from time to time and he was not terminated on the ground that incumbent against the leave vacancy had rejoined the post, but was terminated without mentioning any reason in the termination order---One regular post was vacant at the time, when appellant had qualified after going through the prescribed manner---Appeal was accepted; termination order was declared null and void and the restriction imposed in the termination order was set aside---Authorities were directed by the Supreme Appellate Court to appoint the appellant against the vacant and regular post, giving the appellant benefits of the principles laid down by the Supreme Appellate Court.

(b) Discretion---

----Exercise of---Scope---Legal discretion, was not a sweet will, it must be exercised with reason and keeping in view the logic of the rules and law which vested the authority with the discretion.

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

----Art. 114---Estoppel---Principle and application of---Principle of estoppel, was a rule of evidence and not a cause of action or a source of title---Estoppel, debars a party from approbating and reprobating a statement given in respect of a specific fact---Principle of estoppel could not be extended to prevent an action of law, if a party had allowed or consented by conduct any authority to pass an order or to take an action, if the same order or action taken by the Authority was against law and without lawful authority.

Amjad Hussain, Advocate for Petitioner.

Mir Ikhlaq Hussain, Advocate for Respondents.

2015 G B L R 114

[Supreme Appellate Court]

Before Raja Jalal-ud-Din, Actg. C.J. and Muzaffar Ali, J

JAVED KHAN and another---Petitioners

Versus

The STATE---Respondent

Cr. P.L.A. No. 5 of 2015, decided on 25th May, 2015.

Mining Rules, 1948---

----R. 79---Regulation of Mines and Oil Fields and Mineral Department (Government Control) Act (XXIV of 1948), Preamble---Criminal Procedure Code (V of 1898), S. 561-A---SRO No.797(I)/2003, dated 8-8-2003---SRO No.957(I)/2003, dated 4-10-2003---Mining, possessing and transporting mineral unauthorizedly---Quashing of FIR---Under R.79 of Mining Rules, 1948, possession of precious and semi precious stones from an individual, who had no authority for transportation of the same, could be dealt with under the law---Extension of the Regulation of Mines and Oil Fields and Mineral Department (Federal Control) Act, 1948 to Gilgit-Baltistan (the then Northern Areas), had also framed rules there under vide SRO No.957(I)/2003, dated 4-10-2003---Writ petition could not be preferred, when there was an alternative remedy available under law---Letters placed on record by the petitioners, were of no value as the Mining Rules had been extended to Gilgit-Baltistan---Petitioners had no case for quashing of FIR; petition for leave to appeal was refused by Supreme Appellate Court.

Shevo v. Regional Police Officer, Hyderabad Region and 15 others PLD 2009 Kar. 24 ref.

Malik Shafqat Wali, Senior Advocate for Petitioners.

Advocate-General, Gilgit-Baltistan for the State.

2015 G B L R 117

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J. and Muzaffar Ali, J

Mst. HASEENA---Petitioner

Versus

MUHAMMAD SHAFA---Respondent

C.P.L.A. No. 67 of 2015, decided on 18th September, 2015.

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

----Ss. 17 & 25---Custody of minor---Right of guardian to custody of ward---Welfare of minor---Respondent/grandfather of minor had taken the custody of minor when he was only 10 months of age against the will of his mother---On filing petition by the petitioner/mother under S.25 of the Guardians and Wards Act, 1890, Guardian Judge directed the respondent/grandfather, to handover the child to the petitioner/mother as per Islamic law---Grandfather dissatisfied by the order of Guardian Judge, filed appeal before the Chief Court, which was accepted and order passed by the Guardian Judge was set aside---Validity---Custody of infant/minor, could not be allowed blindly, but it must be decided objectively---Welfare of the minor was always a paramount consideration, while determining the custody of minor---Mother's love and affection for her child could not be matched/compared/equated with any others'; lap of mother was God's own cradle for a child---Deciding the custody of minor was an extremely conscious matter---Age of the minor, environment, circumstances and welfare of the minor were paramount considerations, in matter of custody---Mother's lap, was the first place of education where the minor learnt and knew mother---Affiliation of child with the mother was more than that of grandfather and grandmother---Petition for leave to appeal was converted into appeal by the Supreme Appellate Court and was allowed---Impugned judgment passed by the Chief Court; was set aside and judgment/ order passed by the Guardian Judge was upheld---Respondent/ grandfather and his other family members, were allowed by the Supreme Appellate Court to meet the minor after 15 days at the residence of the petitioner, causing no inconvenience to the petitioner/mother.

Walayat Ali v. Mst. Khalida Bibi 1992 CLC 812; Mst. Zubaid Bibi v. Mst. Rabia NLR 2004 Civil 19; Mst. Fozia Begum v. Amin Saddruddin Jamal Gonji 2007 CLC 1403 and Syed Ali Mehdi v. Additional District Judge Baqir Ali Rana 1998 MLD 1003 ref.

Mst. Ghullam Sakina v. Nasim Haider 1979 CLC 4; Asma v. District Judge Sialkot and another PLD 1987 Lah. 263; Mst. Ayesha Bibi v. Safdar Ali Shah and others 2005 CLC 894 and Mst. Bisma Safdar v. Additional District Judge 2010 YLR 1309 distinguished.

Sharif Ahmed, Advocate for Petitioner.

Amjad Hussain, Advocate for Respondent.

2015 G B L R 122

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J.

DEATH OF CHILD DUE TO COLLAPSE OF SCHOOL BOUNDARY WALL: In the matter of

C. Misc. No. 7 of 2013 in S.M.C. No.17 of 2011, decided on 24th November, 2015.

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

----Art. 61---Suo motu jurisdiction of Supreme Appellate Court---Matter concerning death of a child due to collapse of a school boundary wall---Father of deceased child, who died due to collapse of the school wall stated before the court that he had been compensated, and that a piece of land worth Rs. 250,000 out of the land of defaulter had been transferred and mutated in his name---Application in suo motu case was disposed of accordingly.

2015 G B L R 123

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J. and Raja Jalal-ud-Din, J

SAFDAR ENTERPRISE PVT. (LIMITED), through Javed Hussain and 4 others---Petitioners

Versus

NATIONAL BANK OF PAKISTAN through President and 5 others---Respondents

Civil Appeal No. 39 of 2015 in C.P.L.A. No. 30 of 2012, decided on 25th November, 2015.

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

----S. 5(1)(2)---Financial Institutions (Recovery of Finances) Adaptation and Enforcement Order, 2001, S.2---Recovery of finances---Establishment of Banking Court---Competent authority---Chief Judge, Chief Court, nominated a Judge of Chief Court, to act as Banking Judge to take cognizance of all Banking cases, exceeding amount of Rs.50 million, under the provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 [since repealed]---Petitioner challenged said order as totally illegal, unlawful and void ab initio in the eyes of law---Contention of the petitioner was that Judge, Banking Court had not been appointed by the Government of Gilgit-Baltistan being competent authority in terms of subsection (4) of S.5 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, read with S.2 of the Financial Institutions (Recovery of Finances) Adaptation and Enforcement Order, 2001---Submission of counsel for respondent was, that the Government of Gilgit-Baltistan, being the competent authority, after consultation with the Chief Judge, Chief Court had established the Banking Court in terms of subsections (1), (2) of S. 5 of the Financial Institutions (Recovery of Finances) Adaptation and Enforcement Order, 2001, which was lawful and in accordance with law and procedure---No illegality and infirmity had been pointed out by the counsel for the petitioner in the impugned judgment passed by the Chief Court---Case-law cited by counsel for respondent Bank, was applicable; whereas case-law cited by the counsel for the petitioner, was distinguishable---Petition for leave to appeal was converted into appeal by the Supreme Appellate Court, and was dismissed being meritless having no substance---Impugned judgment passed in writ petition by Chief Court was maintained, in circumstances.

S.C. Legal Aid Committee v. Union of India 1994 SCC (6) 731, JT 1994 (6) 544 distinguished.

Pakistan Fisheries Ltd. Karachi and others v. United Bank Limited PLD 1993 SC 109; 2002 SCMR 496; 2003 CLD 67 and 2002 CLD 1 ref.

Shehbaz Khan, Advocate for Petitioner No.1.

Amjad Hussain, Advocate for Petitioners Nos.2 to 5.

Muhammad Hussain Shehzad, Advocate for Respondents Nos.1 to 3.

Deputy Attorney-General for Pakistan at GB for Respondents Nos. 4 and 5.

Advocate-General Gilgit-Baltistan for Respondent No.6.

2015 G B L R 130

[Supreme Appellate Court]

Before Raja Jalal-ud-Din and Muzaffar Ali, JJ

MAQBOOL HUSSAIN---Petitioner

Versus

The STATE---Respondent

Cr. Misc. No. 10 of 2014 in Cr. P.L.A. No. 10 of 2014, decided on 27th October, 2014.

Criminal Procedure Code (V of 1898)---

----S. 345---Penal Code (XLV of 1860), Ss.324, 34 & 337-D---Anti-Terrorism Act (XXVII of 1997), S.7(c)---Pakistan Arms Ordinance (XX of 1965), S.13---Attempt to commit qatl-i-amd, common intention, causing Jaifa, act of terrorism, possessing unlicensed arms---Appreciation of evidence---Compromise---Compromise was effected between the parties---Trial Court in its report authenticated that the injured had forgiven accused for his criminal act---Trial Court had also recorded the statement of injured along with Jirga Members who had verified that a genuine compromise had been effected between the parties outside the court---Accused, who had been given benefit of S. 382-B, Cr.P.C., had spent a period of 4 years and 6 months behind the bars---Compromise arrived at between the parties, being genuine and effective, accused was acquitted from the charge under Ss.324, 337-D, 34, P.P.C. and Ss.6, 7 of Anti-Terrorism Act, 1997---Sufficient evidence was not available on record regarding charge under S.13 of Pakistan Arms Ordinance, 1965 and Ss.6, 7 of Anti-Terrorism Act, 1997---Accused was acquitted and was ordered to be released forthwith, in circumstances.

Muneer Ahmad, Advocate for Petitioner.

Advocate-General for the State.

2015 G B L R 132

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J. and Muzaffar Ali, J

PROVINCIAL GOVERNMENT through Chief Secretary GB and 3 others---Petitioners

Versus

FIAZ AHMED and another---Respondents

C.P.L.A. No. 60 of 2014, heard on 17th September, 2015.

Civil service---

----Appointment---Department had advertised various posts including posts of Assistant Civil Supply Inspector BPS-5 and only one post was filled---Respondent/Candidate got second position in the test and interview---Subsequently two more posts of Assistant Civil Supply Inspector were created/sanctioned and another person (respondent) was selected---Chief Court allowed petition of the candidate-respondent in writ jurisdiction and directed the Authorities to appoint him for the post applied for as he got second position in the merit list---Counsel for respondent-candidate contended that Chief Court had passed the order which was based on misconception and same was liable to be set aside---Said two posts which subsequently were created were not advertised in the newspapers and against one of these posts respondent was appointed by the Authorities as he got third position in the test/interview whereas candidate-respondent in question was ignored in spite of the fact that he got second position in the test/interview, as per merit list---Ignoring the candidate-respondent was contrary to the Fundamental Rights guaranteed under Art.71(2) of the Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 and against principles of natural justice and equity---Advocate-General, could not point out any infirmity and illegality in the impugned judgment passed by the Chief Court---Petition for leave to appeal was converted into appeal by Supreme Appellate Court and partially allowed with the modification that respondent candidate be appointed as Assistant Civil Supply Inspector in BPS-5 with prospective effect i.e. from the date of issuance of appointment letter to the respondent---Conditions laid down by the Chief Court in the impugned order were ordered to be deleted by the Supreme Appellate Court.

Advocate-General Gilgit-Baltistan for Petitioners.

Amjad Hussain, Advocate for Respondents.

2015 G B L R 134

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J.

APPOINTMENT OF NATIONAL ACCOUNTABILITY COURT JUDGE AND ESTABLISHMENT OF ITS POLICE STATION: In the matter of

S.M.C. No. 6 of 2015, decided on 30th November, 2015.

National Accountability Ordinance (XVIII of 1999)---

2015 G B L R 141

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J. and Raja Jalal-ud-Din, J

Mst. GUMBOORI and another---Appellants

Versus

MAHERBAN SHAH and another---Respondents

Civil Appeal No.1 of 2011 and C.P.L.A. No. 40 of 2011, decided on 25th November, 2015.

Civil Procedure Code (V of 1908)---

----O. VI, R.17---Amendment of plaint pending revision---Procedure---Gift---Ingredients of a valid gift---Non-following of Islamic Law of gift---Effect---Both courts below had dismissed suit, plaintiff's filed revision petition against judgments of courts below, before the Chief Court, which was dismissed---Pending revision before the Chief Court, plaintiffs had submitted application under O.VI, R.17, C.P.C., for amendment of plaint, which was allowed---Plaintiffs filed amended plaint and defendants/respondents filed amended written statement---Plaintiffs/petitioners having raised factual points in the amended application, Chief Court was legally bound to frame additional issues in the light of amended plaint, which was not done and without resolving issues and giving an opportunity to the plaintiffs/petitioners enabling them to prove their case in the light of amendments, revision was dismissed---Defendants/respondents had alleged that disputed property was gifted to them by the father of the plaintiffs/petitioners, but the defendants failed to prove the factual position of the gift in accordance with law---Chief Court had not followed the provisions of Islamic Law regarding gift---Ingredients of a valid gift. Declaration of gift by the donor, as expressed or implied; acceptance of gift by the donee and delivery of possession of subject of gift by the donor to the donee were not established---Defendants failed to adduce cogent and convincing evidence---Appeal, was allowed by the Supreme Appellate Court and judgments/decrees passed by the three courts below were set aside.

Muhammad Abdullah Khan Niazi v. Rais Abdul Ghafoor and others PLD 2003 SC 379; Ashiq Hussain and another v. Ashiq Ali 1972 SCMR 50 and Muhammad Yaqoob through Legal Heirs v. Feroz Khan and others 2003 SCMR 41 ref.

Sharif Ahmed, Advocate for Petitioners.

Ehsan Ali, Advocate for Respondents.

2015 G B L R 145

[Supreme Appellate Court]

Before Raja Jalal-ud-Din and Muzaffar Ali, JJ

SHER ZAMAN---Petitioner

Versus

The STATE through Police Station Gilgit---Respondent

Cr. P.L.A. No. 7 of 2014, decided on 23rd September, 2014.

Penal Code (XLV of 1860)---

----S. 324---Attempt to commit qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Brother-in-law of accused who brutally killed his wife and two children, was charged under S.302, P.P.C.---When said brother-in-law of accused was brought to the Trial Court for extension of his remand, accused attempted to murder him with .30 bore pistol---Single shot opened by accused was deflected, thereby fire shot did not find its mark---Trial Court convicted accused and sentenced to 7 years imprisonment with fine of Rs.3 lac---Chief Court upheld the judgment of the Trial Court---Accused who was a young man of about 22 years at time of occurrence, was badly moved by the brutal act of his brother-in-law, and on the day of occurrence attempted to do away with the killer of his sister, but failed to do so and was found guilty of S.324, P.P.C., for attempt to commit murder---Investigation of the case as well as the conviction of accused, did not suffer from any material defects---Findings of the Trial Court and Chief Court, were correct and convincing, but punishment awarded to accused, was a bit excessive in the circumstances of the case, which could be reduced---Accused had undergone the imprisonment for 3 years and 6 months---Benefit of S.382-B, Cr.P.C., had been extended to accused by two courts below---Period of 3 years and 6 months which accused had already spent behind the bars, was enough punishment for the act done by him---Detention of accused behind the bars, was considered as sentence undergone---Fine of Rs.3 lac, was also set aside by Supreme Appellate Court---Sentence of 3 months under S.13 of Pakistan Arms Ordinance, 1965, was considered to have been undergone---Orders of Trial Court and Chief Court, were set aside and accused was ordered to be released from the judicial lock up, in circumstances.

Muneer Ahmad, Advocate for Petitioner.

Advocate-General for the State.

2015 G B L R 148

[Supreme Appellate Court]

Before Raja Jalal-ud-Din, Actg. C.J. and Muzaffar Ali, J

PROVINCIAL GOVERNMENT through Chief Secretary Gilgit-Baltistan and 2 others---Petitioners

Versus

Malik MUSHTAQ AHMED KHAN---Respondent

Civil Appeal No. 5 of 2014 in C.P.L.A. No. 46 of 2014, decided on 19th August, 2015.

Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---

----R. 3---General Clauses Act (X of 1897), Ss.21 & 24-A--- Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art. 81---Appointment---Corrigendum/modification of appointment order---Respondent, initially was appointed Administrative Officer in a project running under the supervision of Provincial administration---When project came to an end, fifty-two employees, including the respondent, were declared surplus---Review Board, adjusted said surplus employees in other relevant departments---Respondent was adjusted against Post of Development Officer (BPS-16) with immediate effect---Authorities thereafter issued corrigendum/modification order and converted regular appointment of the respondent into contractual service---Writ petition of respondent against such said order was accepted by the Chief Court---Advocate General, endeavored to fortify the corrigendum/order with three points; (i) mistake committed in the adjustment order; (ii) adjustment order was the result of collusion with official and (iii) regular appointment against post of grade-16 could only be made after recommendations of the Public Service Commission---Validity---Adjustment order, was not result of an accidental error, but same was deliberate as order stated probation period of the employee---Respondent submitted his joining report as regular servant; was transferred from one place of service to another and he was paid salary without objection---Plea of alleged collision, neither had taken in the written comments submitted by the authorities before the Chief Court nor had been established---Incumbents were adjusted in departments as per recommendations of the Review Board headed by Chief Secretary---Corrigendum order lacked reason about conversion of the regular service of the respondent into contract service---Said order had been passed in violation of legal dictum laid down in S.24-A of the General Clauses Act, 1897---Corrigendum order was in violation of legal principle of "audi alteram partem" as it was issued to the respondent without issuance of show-cause notice to explain his position---Said corrigendum/order, had defeated the legal philosophy behind S. 21 of the General Clauses Act, 1897 and did not fall within the four corners of the principle of "locus poenitentiae"---Adjustment order had been acted upon as respondent had joined the service, had received salary---Respondent had been included in the approved seniority list---Since the adjustment order was acted upon, a right had accrued to the respondent---Authorities had become functus officio to make the corrigendum/order---Petition for leave to appeal was converted into appeal by Supreme Appellate Court and was dismissed accordingly.

Advocate-General, Gilgit-Baltistan for Petitioners.

Malik Shafqat Wali, Senior Advocate along with Latif Shah, Advocate for Respondent.

2015 G B L R 152

[Supreme Appellate Court]

Before Raja Jalal-ud-Din and Muzaffar Ali, JJ

SHABBIR HUSSAIN and 29 others---Petitioners

Versus

SAJJAD SALEEM HOTIYANA and 5 others---Respondents

Contempt Petition No. 2 of 2013 in S.M.C. No. 1 of 2011, decided on 12th June, 2014.

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

----Arts. 75 & 61---Contempt of Court---Application for initiating contempt proceedings against the then Secretary Agriculture, Live Stock and Fisheries and the Director Fisheries for non-compliance with directions of the Supreme Appellate Court regarding regularization of services of petitioners---Present Secretary Fisheries Department informed the court that the petitioners had been adjusted and were given appointments in compliance with the directions of the Supreme Appellate Court---Supreme Appellate Court observed that compliance had been made with its directions and the petitioners had duly been compensated by being appointed or by regular footing---Contempt proceedings were no longer required in such circumstances---Suo motu case along with application for initiating contempt proceedings was disposed of accordingly.

Rehmat Ali, Advocate for Petitioners.

Advocate-General, Gilgit-Baltistan for Respondents.

2015 G B L R 154

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J. and Muzaffar Ali, J

FAQIR SHAH and another---Petitioners

Versus

PROVINCIAL GOVERNMENT and others---Respondents

C.P.L.A. No. 50 of 2011, decided on 17th September, 2015.

Land Acquisition Act (I of 1894)---

----Ss. 4, 10, 11, 18 & 23---Acquisition of land---Determination of compensation---Reference to Court---Claim of petitioner/landowner whose land was acquired for construction of school, was that his land was adjacent to the land of two other persons near main road; that Revenue Field Staff assessed the price of land of the petitioner at Rs.60,000 per kanal whereas land of other person (adjacent) was assessed at Rs.1,20,000 per kanal, despite the lands were situated at the same place, such land, though had potential value, but was assessed at the lower price---Land Acquisition Judge, on reference, granted relief to the petitioner, partially and dismissed the reference---Petitioner being aggrieved by and dissatisfied with the order of the Land Acquisition Judge, filed appeal before the Chief Court, which also granted partial relief to the petitioner to the extent of compound interest from the date of acquiring land till the date of possession; but declined to enhance the rate of land as prayed for by the petitioner---Petitioner had prayed that he could be compensated equally amongst the equals---Advocate-General had contended that judgment passed by Chief Court and the Referee Judge, were illegal and unjustified and were liable to be set aside---Advocate General had submitted that petitioner had gifted 5 kanals and 2 marlas barren land for construction of the school and that none of the persons, whose land was included by the Committee in the school construction had raised objection against the award of the Collector, except the petitioner, who despite of obtaining employment and compensation had filed reference petition in the court against the award---Validity---Petitioner along with others had manouvred and succeeded with the collusion of Revenue Field Staff, obtained award and compensation of his barren land at the rate of Rs.60,000 per kanal---Petitions for leave to appeal were converted into appeal by the Supreme Appellate Court and disposed of with the modification i.e., the impugned judgment passed by Chief Court to the extent of the compound interest payable to the petitioner at 8% per annum (from the date of acquisition of land to the payment of award only), by agreeing with the judgment in reference passed by the Referee Court.

Sharif Ahmed, Advocate for Petitioners (in C.P.L.A. No. 50 of 2011).

Sharif Ahmed, Advocate for Respondents (in C.P.L.A. No. 1 of 2015).

Sher Madad, Advocate General GB for Respondents (in C.P.L.A. No. 50 of 2011).

Sher Madad, Advocate General GB for Petitioners (in C.P.L.A. No. 1 of 2012).

2015 G B L R 157

[Supreme Appellate Court]

Before Raja Jalal-ud-Din and Muzaffar Ali, JJ

MUHAMMAD RIAZ---Petitioner

Versus

The STATE---Respondent

Cr. Misc. No. 7 of 2014 in Under Objection No. 43 of 2014, heard on 2nd September, 2014.

Criminal Procedure Code (V of 1898)---

----S. 345---Penal Code (XLV of 1860), Ss. 302 & 34---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-i-amd, common intention, possessing unlicensed arms---Appreciation of evidence---Compromise---Parties had patched up the matter through the Elders and Notables of the area and an application had been moved in that regard---Trial Court had confirmed the genuineness of the compromise arrived at between the parties; complainant party had pardoned accused for the sake of Almighty Allah---Complainant party had no objection, if convicted person was acquitted on the basis of said compromise---Accused was also convicted under S. 13 of Pakistan Arms Ordinance, 1965 and was sentenced for 7 years' R.I. with fine---Accused had spent 5 years and 8 months in the judicial lock-up, said period was enough time spent behind the bars, remaining period, was deemed to have been undergone---Fine of Rs.5000 would stand as it was and would be deposited in the Government treasury---Accused was acquitted of the charge of murder under S.302/34, P.P.C.---Conviction of accused under S.13 of Pakistan Arms Ordinance, 1965, would be deemed to have served in circumstances.

Malik Haq Nawaz, Senior Advocate along with Haji Jamal Khan, Advocate-on-Record for Petitioner.

2015 G B L R 159

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J. and Muzaffar Ali, J

Messrs ISHAQUE ENTERPRISES and others---Petitioners

Versus

NATIONAL BANK OF PAKISTAN---Respondent

C.P.L.As. Nos.31, 26, 27, 28, 29, 30, 32, 33, 22 and Under Objection No. 5 of 2014, decided on 21st September, 2015.

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

----Ss. 5, 7 & 9---Suit for recovery of loan---Jurisdiction of Banking Court---Scope---Chief Court vide the impugned judgment accepted review petitions partially and set aside its judgment, holding that Banking Judge, was appointed in consonance with S. 5 of Financial Institutions (Recovery of Finances) Ordinance, 2001 and proceedings and orders by Banking Judge, were in accordance with prevailing law---Petitioners/judgment-debtors contended that, Banking Court was not vested with jurisdiction under the mandatory provisions of the Financial Institutions (Recovery of Finances) Ordinance, 2001, therefore, order of the Banking Court, was void ab initio and arbitrary in the eyes of law; that Chief Court had not appreciated that District Judge had no jurisdiction in the matter and judgment/decrees passed by said court were coram non judice and that both the District Court and Banking Court were not established in accordance with law, and their Presiding Officers having not been appointed by the Federal Government in pursuance of the mandatory provisions of the Financial Institutions (Recovery of Finances) Ordinance, 2001, therefore, orders/judgments rendered by said courts were coram non judice, not sustainable and were liable to be set aside---Petitioners had prayed that impugned order passed by Chief Court be set aside---Contention of counsel for respondent/Bank was that orders/judgments passed by the Chief Court were well reasoned and according to law and that Banking Court was established in accordance with law and its Presiding Officer was also competently appointed; as after promulgation of the Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 authority for the appointment rested with the Gilgit-Baltistan council under serials 5, 13 & 50 of the Third Schedule of the order---No illegality and infirmity had been found in the judgment passed by the Chief Court---Petitions for leave to appeal were converted into appeals and were dismissed, in circumstances.

Amjad Hussain, Advocate for Petitioners/Judgment Debtors Nos. 1 to 9.

Joher Ali, Advocate for Petitioner/Judgment Debtor No.10.

Muhammad Hussain Shehzad, Advocate for Respondent.

2015 G B L R 162

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J.

AFFECTEES OF THE LAND OWNERS OF KKH: In the matter of

S.M.C. No. 1 of 2015, heard on 21st September, 2015.

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

----Art. 61---Suo motu jurisdiction of Supreme Appellate Court---Matter concerning claims of landowners/effectees whose land had been acquired for Karakoram Highway---Effectees were willing to withdraw the present case if the Authority before whom their claims were pending, decided their claims and paid compensation within 3 months---Counsel for the Authority had no objection to the submission made by the effectees---Supreme Appellate Court, in view of submissions of both parties, directed that the authority shall decide the claims of the effectees, and pay them compensation expeditiously within a period of 3 months and submit a progress report every month in the office of the Registrar of the Supreme Appellate Court---Suo motu case was disposed of accordingly.

Malik Shafqat Wali, Senior Advocate along with Ehsan Ali, Advocate for Petitioners/affectees.

Advocate-General, Gilgit-Baltistan.

Amjad Hussain, Advocate for NHA.

2015 G B L R 163

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J. and Muzaffar Ali, J

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

Versus

FARID ULLAH PS and 105 others---Respondents

C.P.L.A. No. 82 of 2015, heard on 17th September, 2015.

Gilgit-Baltistan Service Tribunals Act (IX of 2010)---

----S. 4---Appeal to Service Tribunal---Respondents/employees, filed appeal before Gilgit-Baltistan Service Tribunal---Service Tribunal converted said appeal into misc-application and passed judgment on said application---Advocate-General contended that Service Tribunal passed said order without any lawful authority and without jurisdiction; that, Service Tribunal had no jurisdiction to direct the authorities to implement office memorandum and that Chief Court, while passing the impugned order/judgment did not consider the legal points raised by the authorities and application was not maintainable and was liable to be set aside---Counsel for authorities, could not point out any infirmity and illegality in the impugned order passed by Service Tribunal---Leave to appeal was declined and judgment of Service Tribunal, was maintained, in circumstances.

Advocate-General, Gilgit-Baltistan for Petitioners.

2015 G B L R 165

[Supreme Appellate Court]

Before Rana Muhammad Arshad Khan, C.J., Raja Jalal-ud-Din and Muzaffar Ali, JJ

The STATE---Petitioner

Versus

HAZARAT HUSSAIN---Respondent

Cr. P.L.A. No. 5 of 2013, heard on 17th June, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302, 114 & 429---Qatl-i-amd, abetter present when offence was committed, mischief by killing---Petition for cancellation of bail---Petition was filed before Supreme Appellate Court against the order of the Chief Court, whereby application filed under S.497, Cr.P.C., for grant of post arrest bail was accepted and accused was ordered to be released on bail---Accused had not misused the concession of bail and no ground, was made out to cancel the bail, already granted to him---Accused remained in attendance before the court on each and every date of hearing---Accused had been declared juvenile by the court of competent jurisdiction---Case was time barred by 14 days and no application was moved for condonation of such delay---Valuable right had accrued in favour of accused, which could not be taken away without any cogent reason---Case having been concluded before the Trial Court, and judgment was likely to be given within the shortest possible time, no case for cancellation of bail was made out---Impugned judgment/order, did not suffer from any illegality or infirmity---Cancellation of bail was declined by Supreme Appellate Court.

Advocate-General, Gilgit-Baltistan for Petitioner.

Sher Alam, Advocate for Respondent.

2015 G B L R 167

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J. and Muzaffar Ali, J

REPRESENTATION/APPEAL UNDER THE CIVIL SERVANTS (APPEAL) RULES, 1977: In the matter of

Administrative Appeal/Representation No.1 of 2013, decided on 14th September, 2015.

Supreme Appellate Court, Service Structure (Modified/Re-enacted) Rules, 2009---

----Rr. 3, 5 & 11---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R.21(2)(3)(4)---Civil Servants Act (LXXI of 1973), S.11---Appointment of Assistant Registrar (Judicial) in the Supreme Appellate Court on ad hoc basis---Termination of service---Services of the employee were regularized and was upgraded along with four other officers---No terms and conditions were laid down in the order of his up-gradation for probation period---Services of the appellant when he was on probation were terminated without issuance of show-cause notice and explanation---Appellant was informed telephonically about his termination---Appellant challenged his termination as unlawful, void and against the principles of natural justice---Validity---Under S.11 of Civil Servants Act, 1973, services of a civil servant, could be terminated without notice during the initial or extended period of his probation---Under R.5 of Supreme Appellate Court Service Structure (Modified/Re-enacted) Rules, 2009, no reasonable opportunity of showing cause, would be given, when the Chief Judge or the Registrar, was satisfied that in circumstances of the case, it was not expedient in the public interest to give such opportunity---Appellant, who was on probation, competent authority was authorized to terminate his services without any notice on account of his being on probation---Competent authority was empowered to decide, whether an employee was fit to be retained in service or not, such being an administrative matter---No illegality in such exercise of power by the competent authority was noticed---Appeal was not maintainable as no penalty, major or minor had been imposed on him, but he was terminated during probation period, which did not require any show-cause notice prior to termination---Administration appeal being not maintainable, was dismissed by Supreme Appellate Court, in circumstances.

Syed Tahir Hussain Shirazi v. The Governor of the Punjab and others 1990 SCMR 1510; Muhammad Siddique Javed Chaudhry and others' case PLD 1974 SC 393 and Muhammad Sami Ullah Ghauri v. Secretary, Population Welfare Division, Islamabad and others 1991 SCMR 382 ref.

Appellant present in person.

2015 G B L R 175

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J.

COMPLAINT AGAINST CIVIL AVIATION AUTHORITY: In the matter of

C. Misc. No. 127 of 2015 in S.M.C. No. 3 of 2015, decided on 26th November, 2015.

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

----Art. 61---Suo motu jurisdiction of Supreme Appellate Court---Matter concerning complaint against Civil Aviation Authority for not starting flights between Skardu and Gilgit as per direction of the Supreme Appellate Court---Concerned officials of Civil Aviation Authority appeared before the court and tendered unconditional apology and placed themselves at the mercy of the court---Said officials also made a request to be allowed to withdraw the parawise comments filed by them earlier---Supreme Appellate Court accepted the unconditional apology tendered by the concerned officials and warned them to be careful in future and pay respect to the judiciary---Supreme Appellate Court directed that the parawise comments already filed by concerned officials be returned to them and the copy of written submission regarding tendering of unconditional apology be placed on record---Suo motu case was disposed of accordingly.

Mian Shafaqat Jan, Advocate along with Johar Ali Khan, Advocate-on-Record.

Respondent No.1 in person.

2015 G B L R 176

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J., Jalal-ud-Din and Muzaffar Ali, JJ

Mst. MUMTAZ BEGUM---Petitioner

Versus

Mst. TAJ BEGUM---Respondent

C.P.L.A. No. 4 of 2013, decided on 10th November, 2015.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Arts.61 & 65---Suit for declaration and possession---Plaintiff filed suit contending that the suit land was rented out by her father to the father of the defendant through agreement deed in his life time; that father of the defendant paid rent Rs.2 per month as stipulated in the rent agreement; that suit land was retained by the defendant as legal heir of her father after his demise; that defendant not only had denied to pay the rent to the plaintiff, but also let the land on rent to another person; that plaintiff being legal heir of her deceased father, claimed rent from the defendant and demanded to vacate the land, as she had defaulted by sub-letting the suit land and by denying to pay the rent to the plaintiff---Defendant, rejected the claim of plaintiff, posing herself owner of suit land---Defendant denied the ownership of the plaintiff with the plea that suit land was gifted to her father by the father of the plaintiff in his life time; that her father remained in possession of suit land as donee; that after his death she was in possession of suit land as owner, being the legal heir of the donee---Trial Court decreed the suit filed by the plaintiff and judgment of the Trial Court was upheld by the appellate court, in appeal---Concurrent findings of two courts below, were upheld by Chief Court in revision---Defendant had filed petition for leave to appeal, which was also dismissed by the Supreme Appellate Court, converting the same into appeal and defendant had filed review petition---Validity---No legal infirmity was noticed in the concurrent findings, as the counsel for defendant, could not explain any legal error by the courts below and no appeal before the Supreme Appellate Court was competent, unless defendant/appellant would refer a vital legal question floating on the face of the impugned judgment, oversighted by the courts below---Plea of misconceiving or misunderstanding of facts of the case by the lower courts, was hardly a ground before Supreme Appellate Court---Defendant having admitted the initial ownership of the father of the plaintiff, could not be the owner of the suit land, unless she would prove plea of alleged gift in favour of her father---Defendant failed to prove the issue in regard to alleged gift; no single documentary or oral evidence, was available on the record of the case to prove the plea of gift---Plea of non-payment of the rent by the defendant to the plaintiff, had no substance; as "once a tenant, always a tenant"---Tenant could not claim the ownership over the rented property---Ownership, was needed to be proved otherwise---Rent deed filed by the plaintiff, being more than 30 years old, was admissible in evidence, which proved relationship of tenant and owners between the parties---Possession of the defendant over the suit land was permissive and constructive possession lay with the plaintiff being the legal heir of the owner/her father and no limitation would run in favour of the defendant---When it was proved that the defendant was in possession of the suit land as tenant, question could be raised that, the matter was triable by the Rent Controller under Rent Restriction Ordinance, 1959 for ejectment of the tenant---Supreme Appellate Court observed that point, though had not been taken in appeal, but there being point of limitation touching the jurisdiction, same needed to be discussed accordingly for future guidance of lower courts; that in a simple case for ejectment of tenant, Rent Controller under the Rent Restriction Ordinance, 1959 had exclusive jurisdiction to entertain the matter and the general jurisdiction of the civil courts, was barred by the special law, but when a person would claim himself owner of the disputed property and were denied relationship of tenant and owner and would make the title disputed, civil courts, would have jurisdiction to determine the title between the parties---Petition for review was dismissed being meritless and concurrent findings of the lower courts were maintained.

Shehbaz Khan, Advocate along with Johar Ali, Advocate-on-Record for Petitioner.

Attorney/son of Respondent for Respondent.

2015 G B L R 181

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J. and Muzaffar Ali, J

Syed ALI SHAH and others---Petitioners

Versus

The STATE through FIA Gilgit---Respondent

Cr. Appeal No. 1 of 20-15 in Cr. P.L.A. No. 10 of 2015, decided on 24th November, 2015.

Prevention of Corruption Act (II of 1947)---

----S. 5---Allegation of embezzlement---Appreciation of evidence---Trial Court/Special Judge of Anti-Corruption, after recording prosecution evidence and hearing the parties, acquitted petitioners/accused persons, giving them benefit of doubt as prosecution witnesses had not implicated them---Chief Court, on appeal, accepted appeal of prosecution by setting aside judgment of the Trial Court---Prosecution had failed to prove its case against accused persons; as none of the witnesses had implicated them---Trial Court had rightly acquitted accused persons by giving them benefit of doubt---Chief Court had failed to appreciate that prosecution could not produce any corroborative witness though available without any reason---Accused persons were not bound to prove their innocence, but it was the legal duty of the prosecution to prove its case beyond reasonable doubt---Chief Court was not justified for remanding the case to the Trial Court for fresh trial---Allowing appeal, impugned judgment passed by the Chief Court, was set aside by Supreme Appellate Court and that of Trial Court was maintained, in circumstances.

Wazir Walayat Ali, Advocate along with Ali Khan, Advocate-on-Record for Petitioners.

Shabir Hussain Shigri, Special Prosecutor, FIA Gilgit-Baltistan for Respondent.

2015 G B L R 184

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J., Raja Jalal-ud-Din and Muzaffar Ali, JJ

GHULAM NABI and 3 others---Petitioners

Versus

Mst. GUL NAJAF and 9 others---Respondents

Civil Appeal No. 6 of 2015 in C.P.L.A. No. 73 of 2014, decided on 8th October, 2015.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Inheritance---Plea of gift---Proof---Requirements---Suit having been dismissed by the Trial Court, plaintiffs filed appeal before appellate court below, which was accepted holding that plaintiffs were equally entitled for inheritance in property left by their late father---Father of the plaintiff, who was duff, dumb and died at age of 90 years---Defendant, could not produce any witness with regard to the gift-deed allegedly executed by the deceased in favour of the defendant---Revision petition was dismissed by the Chief Court---Validity---Orders passed by the Chief Court as well as by appellate court below were well reasoned and well founded as no infirmity and illegality was pointed out by the counsel for defendants/petitioners---Said orders were maintained, by the Supreme Appellate Court holding that appellate court below had rightly reversed the judgment passed by the Trial Court---Petition for leave to appeal was converted into appeal and dismissed.

Malik Shafqat Wali, Senior Advocate for Petitioners.

Johar Ali for Respondents.

2015 G B L R 186

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J.

ILLEGAL CUTTING OF FOREST IN CHAPROTE NAGAR 2 AND CHAKARKOT JUGLOTE, SAI: In the matter of

S.M.C. No. 2 of 2015, decided on 27th November, 2015.

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

----Art. 61---Suo motu jurisdiction of Supreme Appellate Court---Matter concerning illegal cutting of forest in Chaprote Nagar 2 and Chakarkot Juglote, Sai---Supreme Appellate Court directed that the "report" submitted by Conservator Forest should be placed before the Chief Secretary to resolve the matter in order to discourage the smuggling of wood from Gilgit-Baltistan to down country and black marketing within Gilgit-Baltistan; that in case a meeting was convened by the Chief Secretary with regard to present issue, then, if required, the Conservator Forest, the amicus curiae in the present case, and the Advocate General should attend the said meeting; that an amendment was required to be made in the relevant law regarding enhancement of sentence, imposition of fine and penalty thereto against the offenders/law breakers; that the requirement of amendment in the law should be forwarded to the Secretary Law, who shall place the same before the legislative body---Suo motu case was disposed of accordingly.

The Advocate-General Gilgit-Baltistan.

Muhammad Issa, Senior Advocate as Amicus Curiae.

Amjad Hussain, Advocate as Amicus Curiae.

Walayat Noor, Conservator Forest Gilgit-Baltistan.

Muhammad Musa, Deputy Secretary Forest.

Aftab Mehmood, Divisional Forest Officer Gilgit.

Javed Akhter, Divisional Forest Officer Diamer.

Imtiaz Ahmed, Divisional Forest Officer Hunza/Nagar.

2015 G B L R 188

[Supreme Appellate Court]

Before Raja Jalaluddin, C.J. and Muzaffar Ali, J

Mst. NANI through Legal Heirs and another---Petitioners

Versus

GHULAM RASOOL and 3 others---Respondents

C.P.L.A. No. 98 of 2014, decided on 20th April, 2015.

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

----Art. 71---Inherent jurisdiction of the Chief Court---Scope---Suit was concurrently dismissed by the Trial Court and appellate court below---Defendants, despite service of summons for their appearance before the Chief Court, failed to attend the court and Chief Court accepted revision with costs ex parte for non-prosecution---Revision petition having been accepted ex parte for non-prosecution, defendants being aggrieved party, could invoke inherent jurisdiction of the Chief Court for setting aside the ex parte order---Defendants had ignored the remedy available to them to invoke the inherent jurisdiction of the Chief Court---Petitioners/defendants had come to the Supreme Appellate Court directly through petition for leave to appeal which was refused---Defendants were directed by Supreme Appellate Court first to exhaust the remedy available to them, before the Chief Court---Order accordingly.

Johar Ali for Petitioners.

2015 G B L R 190

[Supreme Appellate Court]

Before Raja Jalal-ud-Din and Muzaffar Ali, JJ

ARIF-UD-DIN---Petitioner

Versus

The STATE---Respondent

Cr. Misc. No. 6 of 2014 in Cr. P.L.A. No. 4 of 2012, decided on 27th October, 2014.

Criminal Procedure Code (V of 1898)---

----S. 345---Penal Code (XLV of 1860), Ss. 302, 324, 337-A & 34---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-i-amd, attempt to commit qatl-i-amd, causing Shajjah, common intention, act of terrorism, possessing unlicensed arms---Compromise---Compromise was arrived at between accused persons and legal heirs of the deceased during pendency of appeal---Trial Court gave report regarding the genuineness of said compromise---Statements of legal heirs of deceased were recorded wherein they all had pardoned the accused persons---Case of compromise having been made out, accused were acquitted from the charges levelled against them.

1998 MLD 1 ref.

Malik Haq Nawaz, Advocate for Petitioner.

Advocate-General for Respondent.

2015 G B L R 194

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J. and Muzaffar Ali, J

ROZI KHAN through Legal Heirs---Appellant

Versus

Mst. SHAH JAHAN---Respondent

Civil Appeal No. 3 of 2015, heard on 17th September, 2015.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Suit was decreed by the Trial Court---Appeal was also dismissed by the appellate court below and order of Trial Court was maintained---Revision was dismissed by the Chief Court maintaining the judgments of both the courts below---Validity---Judgments/decrees of the three courts below, were well reasoned and no infirmity and illegality was pointed out by the defendant---Petition for leave to appeal was converted into appeal and was dismissed by the Supreme Appellate Court, in circumstances.

Muhammad Issa, Senior Advocate for Petitioners.

Orangzaib, Advocate for Respondent.

2015 G B L R 196

[Supreme Appellate Court]

Before Rana Muhammad Arshad Khan, C.J., Raja Jalal-ud-Din and Muzaffar Ali, JJ

DANYORE RCC BRIDGE: In the matter of

Suo Motu Case No. 6 of 2009, heard on 9th May, 2013.

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

----Art. 61(1)---Suo motu jurisdiction of the Supreme Appellate Court---Project for construction of RCC bridge between Danyore and Karakuram International University on Hunza River---Delay in construction of bridge---Inconvenience to the people of the area--Supreme Appellate Court monitoring progress of construction of the bridge and ensuring its completion---Contract for construction of the bridge in question was awarded in the year 2004-05 and had remained unattended for a considerable period, as the contractor had abandoned the work at the site for reasons best known to him---Delay in the construction of the bridge had been caused at the cost of public time and exchequer---Inconvenience to the people had also been caused which amounted to depriving the people of the area of necessity of life as their basic right---Without the approval of the competent departmental authority, the contract for the construction of the bridge was sublet by the contractor to another construction company---During hearing of the present case the Court gave various directions on different hearings for taking action against the delinquent officers and others who were responsible and had become instrumental for causing delay for completion of the project---Court also gave directions at a hearing for fixing liability for recovery of the loss caused to the government and determining criminal liability of those responsible---Court deputed the Project Director to monitor the project's work and get the same accelerated so that the project could be completed within its time frame---Project Director was also directed at a hearing to continue submitting progress reports through the Registrar of the Court mentioning progress of the construction of the project---Chief Secretary concerned was directed at a hearing to initiate an inquiry to fix responsibility of concerned officials, who were instrumental in making advance payments without actual work and contributed delay in the project at the cost of public money and time---Court also had to give directions to the Public Works Department to accelerate the pace of the project and to furnish monthly progress report to the Registrar of the Court---To ensure that the project was not delayed due to non-payment to the contractor, the court also had to give directions for releasing payment to the contractor---Court remained vigilant on each and every date of hearing and ultimately, the construction of the bridge was completed in all respects and it was made functional and operational for all kinds of traffic for convenience of the public at large---Supreme Appellate Court observed that if it had not kept a constant watch on the construction of the project, it might not have been completed for many years; that although the construction of the bridge was a technical matter, the Court got the said bridge completed within adequate time despite innumerable hurdles and somersaults of the departmental officials as well as the contractor, and that no further action was required in the present case after completion of the bridge---Suo motu case was disposed of accordingly.

Advocate-General for Gilgit-Baltistan.

Superintendent Engineer Works Gilgit.

Executive Engineer, B&R Division Gilgit.

Project Director.

2015 G B L R 213

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J. and Muzaffar Ali, J

Mst. ZOHRA and others---Petitioners

Versus

MEHER BANU and others---Respondents

C.P.L.A. No. 22 of 2012, heard on 16th September, 2015.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration in respect of disputed land on the basis of inheritance---Said suit was concurrently decreed by the Trial Court and appellate court below---Revision filed by the petitioners, was also dismissed by the Chief Court---No illegality and infirmity had been pointed out by the counsel for the petitioners---Concurrent findings of the three courts below were well reasoned and well founded---Leave to appeal was refused and the judgments of the three courts below were maintained by the Supreme Appellate Court.

Muneer Ahmed, Advocate for Petitioners.

S.M. Aga, Advocate for Respondents.

2015 G B L R 214

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J., Raja Jalal-ud-Din and Muzaffar Ali, JJ

The STATE---Petitioner

Versus

ABDUL GHAFFAR---Respondent

Cr. Appeal No. 10 of 2015 in Cr. P.L.A. No. 21 of 2015, decided on 2nd November, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 561-A---Penal Code (XLV of 1860), Ss.302, 311 & 324---Qatl-i-amd, Tazir after waiving or compounding of right of qisas in qatl-i-amd, attempt to commit qatl-i-amd---Bail, cancellation of---Bail application filed by accused was accepted by the Magistrate---Sessions Judge on appeal reversed the order of Magistrate and accused was remanded to judicial lock-up---Accused filed application under S.561-A, Cr.P.C., for quashing of order of Sessions Judge---Said application was allowed and order of Sessions Judge was set aside and accused was ordered to be released on bail---Validity---Present case was triable by Court of Session---Bail granted in the case by Magistrate was without jurisdiction---Sessions Judge, on appeal, rightly reversed the order passed by Magistrate---Order/judgment passed by Sessions Judge was upheld---Bail granted to accused by the Chief Court, was cancelled, in circumstances.

Nasreen Bibi v. Farakh Shahzad and others 2015 SCMR 825; Nisar Ahmed and others v. The State 1994 PCr.LJ 1587 and Hassan Wali and others v. The State 2011 PCr.LJ 448 ref.

Advocate-General Gilgit-Baltistan along with Ali Nazar Khan, Advocate-on-Record for Petitioner.

Jahan Zaib Khan, Advocate for Respondent.

2015 G B L R 218

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J. and Muzaffar Ali, J

HUSSAIN---Petitioner

Versus

Mst. KHATOON and another---Respondents

C.P.L.A. No. 6 of 2014, heard on 10th September, 2015.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Muslim Personal Law (Shariat) Application Act (V of 1962), S.2---Suit for declaration and possession---Right of inheritance of Muslim female---Suit by plaintiff/daughter of deceased owner was decreed by the Trial Court---Appellate court below, allowed appeal and set aside the judgment by the Trial Court---Appeal against judgment of the appellate court below was allowed by the Chief Court---Contention of defendant was that at the relevant time Mulsim Personal Law was not applicable in Gilgit-Baltistan and females were not getting their share from inherited property under prevailing customs and usage---Plaintiff, in circumstances, had no right from the legacy of her father and brothers---Validity---Chief Court had rightly admitted the claim of the plaintiff to be based on the Sharia laws and that right of inheritance given to a Muslim female in Holy Quran, could not be taken away by any law, authority, custom and usage---Extinguishment of such right was not recognized in Islam; notwithstanding the application of such rights under the custom, the Muslim female, would be entitled to inherit the property in accordance with the law of Sharia and the custom---Custom was contrary to the Injunctions of Islam---Judgment by the Chief Court, was well reasoned and no illegality and infirmity had been pointed out which called for interference by the Supreme Appellate Court.

Muhammad Ishaq Shakir, Advocate for Petitioner.

2015 G B L R 221

[Supreme Appellate Court]

Before Rana Muhammad Arshad Khan, C.J., Raja Jalal-ud-Din and Muzaffar Ali, JJ

LAW AND ORDER SITUATION IN GILGIT-BALTISTAN: In the matter of

Suo Motu Case No. 2 of 2011, decided on 20th November, 2013.

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

----Arts. 60, 61 & 95---Anti-Terrorism Act (XXVII of 1997), Ss.7 & 14---Target killing and "worst" law and order situation in Gilgit-Baltistan---Exercise of suo motu jurisdiction by Supreme Appellate Court---Employee of Chief Court, Gilgit-Baltistan, having been done to death by some unknown persons, people of the area started protest against said target killing, demanding the arrest of culprits---Father of the deceased employee, made application to the Chief Judge, Supreme Appellate Court, narrating therein the story of the murder of his son and made request for taking Suo Motu notice regarding said target killing---Father of the victim asserted that target killing of different persons had become the routine matter; and the Administration of the area had failed to take any measure to control the situation---Main emphasis of the applicant was that stern legal action be taken against accused persons, and the investigation of the case be ordered to be carried out fairly and in a transparent manner; and the culprits be brought to the court of law to meet the ends of justice---Law and order situation in the area of Gilgit-Baltistan, particularly in and around Gilgit city had become worst and it had become routine, that one or two persons were being killed---Culprits had started killing the innocent persons with the motive of sectarianism---Every one was living in fearful and frightening atmosphere, and no education was being imparted to the students in Schools and Colleges---Control of Administration had almost come to an end---No body was safe in the area---Culprits were openly displaying and brandishing their weapons everywhere; and peaceful people had squeezed to their houses---All law enforcing agencies had become helpless---Incidents of violation had shattered the confidence of the people to move freely---Tourists had stopped visiting this beautiful area of Pakistan, and business relating to the tourism had almost abolished---Karakorram Highway had become unsafe, and law enforcing agencies had failed to provide security and safety to the life of the passengers---Sectarianism had deepen its roots---Supreme Appellate Court took cognizance of the matter on the application of the father of deceased victim of target killing---Concerned Officials were summoned to appear before the Supreme Appellate Court---High ranking Officers of the Government appeared and apprised the court on a number of issues; and court issued orders as guidelines to curb the menace of target killing---Measures suggested and adopted by the concerned Officials had become helpful to reduce the gap between the people of the area and the law enforcing agencies---Harmony among the people of the area had started to prevail gradually---Private organizations i.e. Masajid, Boards and Area-wise Peace Committees, as well as efforts of the renowned religious scholars, contributed to improve the law and order situation---Police had initiated and completed entire reform, which also became helpful in the matter---System of the courts, was also improved with intervention of Supreme Appellate Court---Under the directions of the Supreme Appellate Court, Police started all efforts to submit challans of the cases in the respective courts, and recording of testimony of the witnesses had started and expeditious decisions of the courts contributed a lot to minimizing the "worst law and order situation" of the area---Payment of compensation to the legal heirs of the deceased victims, were arranged to be paid satisfactorily---Action Committee of the Lawyers Association, had also strenuously made efforts while extending full help to resolve the issue in a proper manner---Chief Secretary of Gilgit-Baltistan in his report had expressed that iron hands would be used against the menace of sectarian violance; and had also given the details of the measures taken by the administration in the matter pertaining to the law and order situation---Home Secretary had informed the Supreme Appellate Court about the measures taken by the Administration to maintain law and order in the city---Position of law and order situation was explained in the reports of Chief Secretary, Home Secretary and Inspector General of Police, after taking administrative measures to maintain peace, and to curb the lawlessness in the area---By taking all such measures, peace and tranquility in the area had been restored, and the people were now free to move, and to do their business, or any other service, which they were already rendering---For the last about one year, no such untoward incident had taken place in and around the city of Gilgit, specially and in whole area of Gilgit-Baltistan generally---Supreme Appellate Court reposed full confidence in the working of the Police Officials as well as other officials of Government of Gilgit-Baltistan in the field---With such exercise, the people of area could live without fear and on account of the assurance of the Government Officers no further action at the moment was required to be taken by the Supreme Appellate Court---Suo motu notice case was disposed of by the court accordingly.

2010 GBLR 160 ref.

Asad Ullah Khan, Advocate-General Gilgit-Baltistan.

Dr. Ata-ur-Rehman, Home Secretary Gilgit-Baltistan.

Ali Sher, DIG, Crimes and Investigation Branch, Gilgit.

Mehmood DIG, Headquarters, Gilgit.

Mujeeb Alam, Deputy Secretary, Home Department, Gilgit.

2015 G B L R 244

[Supreme Appellate Court]

Before Raja Jalal-ud-Din, Actg. C.J. and Muzaffar Ali, J

SULEMAN and 2 others---Petitioners

Versus

Mst. MAROOF through LRs---Respondent

C.P.L.A. No. 41 of 2014, decided on 18th August, 2015.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.61---Suit for declaration and possession---Contention of the plaintiff was that she being the sister of the father of defendants, was entitled to get possession of her sharie share from the defendants---Plaintiff having passed away during pendency of the suit, her legal heirs were arrayed as plaintiffs---Trial Court de-suited the plaintiff's holding that defendants had proved that plaintiff (deceased) had given her sharie share to father of the defendants vide gift-deed---Appellate court below accepted appeal and decreed the suit in favour of plaintiffs---Chief Court dismissed the revision against order of Appellate Court below---Validity---Trial Court was not justified in law by relying on a document/gift-deed, which was neither original nor registered; by dint of such document a co-sharer lady could not be ousted from her share, unless it was proved that she had transferred her share without any reasonable doubt or undue influence---Unless a solid proof was available on record that a pardanasheen lady had withdrawn from her share without any coercive and undue influence, she could not be deprived of her legal share---Father of the defendant/brother of the plaintiff, being male was in a position to have undue influence over the plaintiff/his sister and to compel her not to claim her share and might also use unfair means to deprive his sister from her share---Plaintiff (sister) was not excluded by any custom prevailing at the relevant time when her father died---Plea of custom, unless proved beyond any shadow of doubt with solid evidence being acted upon for time immemorial in a particular area, could not be a pretext to deprive a female co-sharer from her sharie share---Petition for leave to appeal dismissed with costs, in circumstances.

Amjad Hussain, Advocate for Petitioners.

2015 G B L R 247

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J. and Muzaffar Ali, J

The STATE---Petitioner

Versus

SHAMS-UR-REHMAN---Respondent

Cr. P.L.A. No.16 of 2014, heard on 22nd September, 2015.

Penal Code (XLV of 1860)---

----Ss. 302 & 34---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 27---Pakistan Arms Ordinance (XX of 1965), S. 13---Qatl-i-amd, common intention, act of terrorism, possessing unlicensed arms---Appreciation of evidence---Trial Court vide its judgment acquitted accused---Chief Court, on appeal, not only maintained the impugned judgment of the Trial Court, but imposed Diyat on State for defective investigation, instead of taking action against Investigating Officer under S.27 of Anti-Terrorism Act, 1997---State Counsel, could not point out any infirmity and illegality in both the judgments of the courts below, and admitted that there was no eye-witnesses; and that recovery of pistol was not effected in presence of independent witnesses from the house of accused---Matching of empties fired from recovered pistol lost its evidentiary value rather became doubtful in circumstances---Orders passed by the Trial Court and Chief Court were maintained, in circumstances.

Advocate-General Gilgit-Baltistan, Gilgit for the State.

2015 G B L R 249

[Supreme Appellate Court]

Before Raja Jalal-ud-Din, Actg. C.J. and Muzaffar Ali, J

K-2 TOURS through Managing Director---Petitioner

Versus

PROVINCIAL GOVERNMENT through Chief Secretary Gigit-Baltistan and 4 others---Respondents

C.P.L.A. No. 32 of 2015, decided on 21st May, 2015.

Specific Relief Act (I of 1877)---

----Ss. 42, 54 & 56(d)---Civil Procedure Code (V of 1908), O.XXXIX, Rr.2 & 3---Suit for declaration and perpetual injunction---Application for temporary injunction---Contentions of the plaintiff were that it had constructed a class-D stand after getting licence from competent authority and carrying its business of transport since then; that authorities were causing hindrances and preventing the plaintiff from the use of the stand for its vehicles; that authorities had directed the plaintiff to shift its business to the Bus Stand constructed by the authorities outside the Municipal limits of the city---Plaintiff, filed application under O.XXXIX, Rr.2 & 3, C.P.C., for grant of temporary injunction against the authorities restraining them from dislodging the plaintiff from the Stand in question---Trial Court initially granted ad interim injunction against the authorities, but later on vacated the same---Appellate court below and Chief Court, refused to grant temporary injunction---Validity---Authorities had not prevented the plaintiff from carrying on the business of transport, as to run a business was a Fundamental Right of a citizen, but at the same time, administrative authorities were to avoid administrative problems creative of the business---Authorities faced traffic problems with the passage of time---Authorities had asked the plaintiff to shift its business to Bus Stand constructed outside the Municipal limits to control the traffic flow into the city---Plaintiff, had failed to establish balance of convenience, which was required for grant of temporary injunction---Application for grant of injunction was rightly refused under S.56(d) of the Specific Relief Act, 1877---Courts below, in circumstances, had applied their judicial mind in refusing the remedy---Concurrent findings, need not to be interfered---Petition for leave to appeal was dismissed by the Supreme Appellate Court.

Amjad Hussain, Advocate for Petitioner.

2015 G B L R 252

[Supreme Appellate Court]

Before Rana Muhammad Arshad Khan, C.J., Raja Jalal-ud-Din and Muzaffar Ali, JJ

COMPLAINT AGAINST CIVIL SUPPLY: In the matter of

Suo Motu Case No. 2 of 2013, heard on 7th May, 2014.

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

----Art. 61(1)---Suo motu jurisdiction of Supreme Appellate Court---Powers of judicial review---Scope---Use of public funds or public property by the executive or public functionaries---Public benefit---Award of contract by public functionaries---Where public funds or any public property was to be dealt with by the executive authorities for the benefit of the people, the public authority was required under the law to examine the use of funds in accordance with law, keeping in view the constitutional rights of the citizens---Since the people were real owners of the public exchequer, therefore, public functionaries were under a legal obligation to execute contracts justly, fairly, legally and in a transparent manner in order to avoid misuse of the public money and any element of arbitrariness---Public functionaries derived their authority and power from, or under the law and they were obliged to act equitably, reasonably and in a manner that there should not be any element of discrimination, favouritism, nepotism and unfairness, keeping themselves within four corners of law---Where the executive authorities did not comply with all the said conditions, the matter would be open for judicial review to correct the errors committed by the public functionaries while executing and awarding a contract, without showing favour to any of the party on account of any consideration other than the public benefit---Supreme Appellate Court would not hesitate to exercise its jurisdiction of judicial review in such like cases to scrutinize the matter where public money was being used or expended---Public functionaries were duty bound to ensure that they undertook transactions and executed contracts lawfully, fairly, equitably and without any element of arbitrariness by ensuring transparency---Court had the power of judicial review of the decision making process carried out by the executive authorities in the matters of expending of public money and if, on scrutiny, it was found tainted with an element of unreasonableness and arbitrariness, the intervention of the Court was justified while keeping in view the larger interest of the public.

Suo Motu Case No. 13 of 2009 PLD 2011 SC 619 and Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132 ref.

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

----Art. 61(1)---Supreme Appellate Court---Powers of judicial review---Scope---Award of contract by public authority/functionary---Where there was any element of partiality or undue favour or substantial irregularity on the surface of record which might create a serious doubt in the mind of common man with regard to the transparency in execution and award of public contract or any other transaction lacking transparency, the Court may not hesitate to interfere in the matter and may in exercise of power of judicial review declare the transaction illegal.

(c) Public Procurement Rules, 2004---

----R. 42(c)(iii)---Public Procurement Regulatory Authority Ordinance (XII of 2002), Ss. 2(e) & (o)---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art. 61(1)---Suo motu jurisdiction of the Supreme Appellate Court---Matter relating to the contract awarded to the Northern Areas (now Gilgit-Baltistan) Transport Company (NATCO), by the Food Department of Government of Gilgit-Baltistan for wheat carriage from Pakistan Agricultural Storage and Services Corporation (PASSCO) centers situated in the province of Punjab and other areas to Base Godown, Islamabad and thereafter to Gilgit-Baltistan---Public procurement contract, transparency of---Contract in question was awarded to NATCO by direct contracting under R.42(c)(iii) of the Public Procurement Rules, 2004, without inviting tenders vide publication in the newspapers---Legality---Contention of complainant that the rate offered by him for the carriage of wheat from Islamabad to Gilgit-Baltistan was much less than the rate on which the contract was awarded to NATCO, therefore, the award of contract to NATCO was not in the public interest because the payment for the carriage of wheat was to be made from the public exchequer---Validity---Public Procurement Regulatory Authority Ordinance, 2002 and the Public Procurement Rules, 2004, were applicable in Gilgit-Baltistan---Transportation of wheat from Islamabad to Gilgit-Baltistan would be termed as "service" (as defined under S. 2(o) of Public Procurement Regulatory Authority Ordinance, 2002), and wheat fell within the ambit of "goods" (as defined under S. 2(e) of the said Ordinance of 2002)---Minutes of the meeting, which formed basis of award of the contract to NATCO, smacked volumes of favouritism, arbitrariness and were not free from the elements of unfairness, unjustness and unreasonableness---Public exchequer could not be doled away in such a manner which was allocated to be used for the welfare and betterment of the public at large---Departure from an open bidding was undertaken in the present case while invoking the exemption purportedly under R. 42(c)(iii) of Public Procurement Rules, 2004 without assigning any reason whatsoever or mentioning any circumstances for which wheat carriage contract was awarded to NATCO without publication for inviting tenders---Exemption provided under R. 42 (c)(iii) of Public Procurement Rules, 2004 was not attracted to the facts and circumstances of the present case as the execution of the contract with NATCO had not been done in a fair, legal and transparent manner---No date of execution of the contract had been given nor any amount of security was required to be deposited by the contractor in order to ensure compliance with the conditions of the contract---Only date available on the contract along with the signature of one of the witnesses, was 2 months post from the date of start of execution of the contract, therefore, the whole exercise emerged to be farcical---Signatures of the contracting parties had been obtained but their names and addresses were not given---Signatures of the witnesses (to the contract) had also been obtained but neither their addresses nor their designations were mentioned---Contract had been drafted and signed by the parties in such a casual manner which could not be said to be a contract sustainable in law---Contract awarded to NATCO, in the present case, was illegal, invalid and was executed in violation and contravention of the mandatory provisions of Public Procurement Regulatory Authority Ordinance, 2002 as well as the provisions of Public Procurement Rules, 2004---Supreme Appellate Court directed that Food Department should reinitiate the de novo process to award the contract for transportation of wheat in a fair, just, reasonable, rational and transparent manner, strictly in accordance with the provisions of the Public Procurement Regulatory Authority Ordinance, 2002 and the Public Procurement Rules, 2004; that the Food Department should afford sufficient opportunity to all the interested parties who qualified to participate in the fresh contract awarding process and all efforts should be made in order to lessen the burden on public exchequer---Suo motu case was disposed of accordingly.

(d) Public Procurement Rules, 2004---

----R. 42(c)(iii)---Public procurement contract---Direct contracting without inviting tenders---Scope---Exemption given in R. 42(c)(iii) of the Public Procurement Rules, 2004, was of no legal effect or consequence if the process of execution of a contract had not been done in a fair, legal and transparent manner.

(e) Public Procurement Rules, 2004---

----Rr. 2(g) & 42(d)(iii)---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art. 61(1)---Suo motu jurisdiction of the Supreme Appellate Court---Matter relating to the contract awarded to the Northern Areas (now Gilgit-Baltistan) Transport Company (NATCO), by the Food Department of Government of Gilgit-Baltistan for wheat carriage from Pakistan Agricultural Storage and Services Corporation (PASSCO) centers situated in the province of Punjab and other areas to Base Godown, Islamabad and thereafter to Gilgit-Baltistan---Public procurement contract, transparency of---Contract in question was awarded to NATCO without inviting tenders vide publication in the newspapers on account of a purported emergency by invoking provision of R. 42(d)(iii) of the Public Procurement Rules, 2004---Legality---Contention of Food Department that two lac wheat bags had to be lifted within the shortest possible time in an emergency as PASSCO authorities had allocated the said wheat bags with an agreement that the bags would definitely be lifted before a certain time---Validity---Word "emergency" as defined under R. 2(g) of the Public Procurement Rules, 2004, meant natural calamities, disasters, accidents, war and operational emergency which may give rise to abnormal situation requiring prompt and immediate action to limit or avoid damage to person, property or the environment---Minutes of the meeting which formed the basis for the award of contract to NATCO, and the contract document itself did not mention any natural calamity, disaster, accident, war or operational emergency---No mention of the word "emergency" itself, was present either in the contract document or in the minutes of the meeting---If, at all, two lac wheat bags were required to be lifted within the shortest possible time in an emergency, the tender through negotiations could be given to such extent only, but for the remaining bags the scheme of law was to be adopted to make it more transparent---Further, the Government had failed to state the appropriate forum which had the authority to declare an "emergency" and the public functionaries also could not show from the record to have declared the same---No emergency situation, whatsoever, was thus available in the present case to award the contract to NATCO under R.42(d)(iii) of the Public Procurement Rules, 2004, which provision even otherwise was not applicable in the facts and circumstances of the present case---Contract awarded to NATCO in the present case, was illegal, invalid and was executed in violation and contravention of the provisions of Public Procurement Rules, 2004---Supreme Appellate Court directed the Food Department to reinitiate the de novo process to award the contract for transportation of wheat strictly in accordance with the provisions of the Public Procurement Regulatory Authority Ordinance, 2002 and the Public Procurement Rules, 2004---Suo motu case was disposed of accordingly.

(f) Administration of justice---

----When one was vested with a power under law to do a certain thing in a certain manner, it must be done in such manner or it should not have been done at all---All other methods of performance of such act were necessarily forbidden.

Advocate-General Gilgit-Baltistan.

Malik Shafqat Wali, Senior Advocate along with Muhammad Sharif, Advocate for Petitioner.

Muhammad Issa, Senior Advocate for NATCO along with Mir Ikhlaq Hussain, Advocate.

Momin Jan, Director Civil Supplies and Transports Gilgit-Baltistan.

Manzoor Karim, Advocate Legal Advisor for Food Department GB.

2015 G B L R 269

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J., Raja Jalal-ud-Din and Muzaffar Ali, JJ

Syed FAIZ ALI SHAH and another---Petitioners

Versus

IQBAL AMAN and others---Respondents

Appeal No. 47 of 2015 in C.P.L.A. No. 25 of 2014, heard on 4th November, 2015.

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

----Ss. 42 & 54---Suit for declaration with consequential reliefs that the defendants be dispossessed from a partial part of the disputed property, and also be restrained from interference into the remaining suit property perpetually---Trial Court dismissed the suit filed by the plaintiffs on merits---Appeal filed against judgment of the Trial Court, was also dismissed by the appellate court below---Chief Court on revision set aside judgments and decrees passed by the both courts below and remanded the case to the Trial Court with the direction to implead Government in the list of the defendants---Validity---Dispute between the parties started since 1997, first it was taken before the Revenue Authorities, then before the civil courts; finally before the Chief Court in the year 2013, but the custodians of the Provincial Government remained mum; no claim from their side reached into the record of the case, asking to be party to defend the Provincial Government which had shown that the Government had no interest in the disputed land---Supreme Appellate Court, disagreed with the finding of the Chief Court in the matter---Petition for leave to appeal was converted into appeal, and judgment passed by the Chief Court, was set aside and those of the Trial Court and the appellate court below were restored---Case was remanded to the Chief Court for adjudicating the revision petition on merits.

(b) Administration of justice---

----Litigant public and the Government departments, were equal before the courts of law---Courts were not supposed to protect the rights of Government, or the authorities, unless the Government would come before the court to protect the interest of the Government.

Muhammad Issa, Senior Advocate along with Johar Ali, Advocate-on-Record for Petitioners.

Malik Shafqat Wali, Senior Advocate for Respondents.

2015 G B L R 272

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J. and Muzaffar Ali, J

The STATE---Petitioner

Versus

MUHAMMAD AFZAL---Respondent

Cr. P.L.A. No. 13 of 2015, heard on 16th September, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-i-amd, common intention--- Bail, grant of---Further inquiry---Accused and co-accused were not nominated in the FIR---Statements of the prosecution witnesses were recorded after an unexplained delay of 5 days---No eye-witness of murder was on record except the last seen evidence---Recovery of alleged crime weapon was effected on the pointation of co-accused after unexplained delay of 11 days---No independent person of the locality was associated to witness the search---No explanation was provided for not associating the witnesses of locality for search of the house of co-accused on his pointation---Chief Court had rightly held that case of accused persons had become a case of further inquiry---No infirmity and illegality had been pointed out in the impugned order passed by the Chief Court---Accused was granted bail---No interference being warranted in the impugned judgment passed by the Chief Court, leave to appeal was refused.

Advocate-General Gilgit-Baltistan, Gilgit.

2015 G B L R 275

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J., Raja Jalal-ud-Din and Muzaffar Ali, JJ

SECRETARY WORKS GILGIT-BALTISTAN and 3 others---Petitioners

Versus

TALIB SHAH and 35 others---Respondents

C. Misc. No. 102 of 2015 in C.P.L.A. No. 86 of 2014, decided on 14th November, 2015.

Land Acquisition Act (I of 1894)---

----Ss. 4 & 6---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art. 71---Acquisition of land---Determination and payment of compensation---Suo motu jurisdiction of Chief Court---Scope---Application of landowners had been accepted by the Chief Court and authorities were directed to pay compensation to the land owners with compulsory acquisition charges---Contentions of Advocate General were that Art.71 of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, did not provide to the Chief Court to exercise suo motu jurisdiction; that order passed in exercise of such jurisdiction would be coram non judice---Validity---Chief Court would exercise its extraordinary discretionary writ/constitutional jurisdiction, when satisfied that; no other adequate remedy was provided by law---Chief Court could not exercise suo motu jurisdiction under Art.71 of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---Petition for leave to appeal was converted into an appeal by the Supreme Appellate Court and was allowed.

Dr. Imran Khattak and others v. Ms. Sofia Waqas Khattak and others 2014 SCMR 122 ref.

Advocate-General Gilgit-Baltistan along with Ali Nazar Khan, Advocate-on-Record for Petitioners.

Johar Ali Khan, Advocate along with Rehmat Ali, Advocate-on-Record for Respondents.

2015 G B L R 281

[Supreme Appellate Court]

Before Rana Muhammad Arshad Khan, C.J., Raja Jalal-ud-Din and Muzaffar Ali, JJ

SOLD OUT OF AN EIGHTEEN YEARS GIRL TO A FIFTY YEARS OLD MAN: In the matter of

H.R.C. No. 1 of 2013, heard on 8th May, 2013.

Penal Code (XLV of 1860)---

----Ss. 371-A, 371-B, 337-A & 420---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art. 61---Human rights case before Supreme Appellate Court---Matter relating to an eighteen years old girl sold out to a fifty years old man---Interest and welfare of the victim---Victim allowed to stay with her father and brother upon an undertaking and execution of surety bonds---Investigating Officer of the present case stated before court that investigation was being carried out on priority basis and two accused persons had been arrested, and that the investigation was likely to be concluded within shortest possible time---Case had been registered against the accused persons---Father and brother of the victim appeared before the court and stated that they wanted to take the victim along with them to their home and had also given an assurance to the court, not to cause any harm to the victim, and that the victim could stay with them without any fear and she would be looked after in all respects---Victim also consented, with her free will, to go with her father and brother---Father and brother of the victim had given an undertaking to the court that the victim would feel homely while staying with them and no threats of dire consequences would be extended to her---Interest and welfare of the victim required that she should be allowed to go with her father and brother to stay at home instead of any shelter home---Even otherwise, parents were natural custodian of their children---Victim was allowed to go with her father and brother, and the investigating officer of the case was directed to get executed personal surety bonds, to the tune of Rs.50,000 each, by the father and brother of the victim, so that they may remain conscious, not to cause her any harm or humiliation at all---Investigating Officer was further directed to conduct the investigation fairly, justly, honestly and strictly in accordance with law, without being influenced from either of the party or any other quarter---Human rights case was disposed of accordingly.

Asad Ullah Khan, Advocate-General, Gilgit-Baltistan, Ishaq, SP on behalf of SSP Gilgit, Taj Din, DSP, Ms. Tahira Yasoob, DSP Women Police Station Cantt. Gilgit, Ms. Ghulab Pari, SHO/IO Women Police Station Cantt. Gilgit, Ms. Husan Bano, ASI Women Police Station Cantt. Gilgit, Mst. Safeena victim Girl, Saidian father of the victim Mst. Safeena, Sher Wali, Alamgheer relative of Mst. Safeena and Shafi Ullah brother of Mst. Safeena present.

2015 G B L R 284

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J., Raja Jalal-ud-Din and Muzaffar Ali, JJ

HUSSAIN and others---Petitioners

Versus

Syed MUHAMMAD ALI SHAH and others---Respondents

C.P.L.A. No. 52 of 2014, decided on 4th November, 2015.

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

----O. VII, Rr. 11 & 13---Rejection of plaint---Scope---Interpretation of O.VII, R. 11, C.P.C.---Order VII, R.11, C.P.C., enabled the court to reject a plaint, when the court would come to the conclusion; (i) that; a plaint did not disclose a cause of action; (ii) that where the relief claimed was under valued and despite the court had given time to correct the valuation, failed to comply; (iii) that where the suit was properly valued, but the plaint was written upon paper insufficiently stamped and the plaintiff failed to cure the legal deficiency, despite the court granted time to cure the same; and (iv) that where the suit appeared from the statement of the plaint to be barred by any law---Order VII, R.11, C.P.C., envisaged rejection of plaint and did not deal with the dismissal of the suit---Order VII, R. 11, C.P.C., read with O.VII, R.13, C.P.C., would show that rejection of plaint would not preclude the plaintiff from filing fresh plaint on the same cause of action, unless the earlier suit was disposed of by an order which in substance, was dismissal---Dismissal order of a suit would debar fresh suit on the same cause of action under the principle of res judicata---Order VII, R. 11(d), C.P.C., containing the word statement in the plaint, signified, that to exercise power under Cl. (d) of the Rule, it would require the court to look into the statement in the plaint and if it was apparent from the plain reading of the averments of the plaint, that the plaint was barred by any law, then the court would reject the same, meaning thereby that, the plaint was prima facie barred by law---Term 'any law' in the said clause, was a statutory term.

(b) Gilgit-Baltistan Pre-emption Act (VII of 2010)---

----S. 34---Civil Procedure Code (V of 1908), O.VII, R.11 & O.XIV, R.1---Suit for pre-emption filed before the promulgation of Gilgit-Baltistan Pre-emption Act, 2010---Effect---Rejection of plaint---Appellants/pre-emptors, filed pre-emption suit, claiming their right of pre-emption over the property sold to the respondent (vendee)---Appellant pre-empted the subject matter of the suit on the basis of their possession over it as occupancy tenants since their forefathers---Respondent vendee, filed application under O.VII, R.11, C.P.C., for rejection of plaint---Plea of counsel for respondent/vendee about the extension of the Gilgit-Baltistan Pre-emption Act, 2010, even to the suits of pre-emption filed before promulgation of the said Act, had been rightly discarded by the Chief Court---Counsel for respondent/ vendee had wrongly interpreted S.34 of Gilgit-Baltistan Pre-emption Act, 2010---Case was remitted to the Trial Court by setting aside both the impugned judgments/decrees, with direction to proceed the suit on merits, after framing the issues, including the legal points.

Munir Ahmed, Advocate for Petitioners.

Javed Iqbal, Advocate along with Shah Baz Khan, Advocate for Respondents.

2015 G B L R 289

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J. and Muzaffar Ali, J

ZEEBO and another---Petitioners

Versus

The STATE---Respondent

Cr. P.L.A. No. 12 of 2015, heard on 16th September, 2015.

Penal Code (XLV of 1860)---

----S. 377---Sodomy---Appreciation of evidence---Prosecution, having proved its case against accused persons beyond any shadow of doubt, Trial Court convicted accused and sentenced him to undergo for 7 years' rigorous imprisonment---Chief Court upheld findings of the Trial Court---Impugned judgments of the Trial Court and Chief Court were well reasoned, based on strong corroborated circumstances supported by medical evidence---No infirmity and illegality having been found or pointed out by the defence said concurrent judgments, could not be interfered with---Both judgments were maintained and leave to appeal was refused, in circumstances.

Haji Peer Muhammad, Advocate for Petitioners.

2015 G B L R 291

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J. and Muzaffar Ali, J

ASHOOR KHAN and others---Petitioners

Versus

QASIM SHAH and others---Respondents

Civil Appeal No. 11 of 2015 in C.P.L.A. No. 55 of 2014, heard on 14th September, 2015.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Allegation of fraud and misrepresentation---Petitioners contended that impugned judgment passed by the Chief Court being incorrect, baseless, arbitrary, against the principles of natural justice and equity, was liable to be set aside---Contention of the respondent was that no infirmity and illegality was pointed out in the impugned judgment passed by the Chief Court---Petition under S.12(2), C.P.C., was filed by respondent when petitioner under the umbrella of ex parte decree tried to take possession of the land---Counsel for respondent, contended that Chief Court, after considering facts and law had rightly set aside order of the First Appellate Court and that of the Trial Court---Case was rightly remanded to the Trial Court with directions to start the same from the stage where it was stopped/given up---Validity---Contentions of counsel for the respondent were right---Impugned judgment passed by Chief Court, could not be interfered with---Petition was converted into appeal and was dismissed by the Supreme Appellate Court, in circumstances.

Johar Ali, Advocate for Petitioners.

Amjad Hussain, Advocate for Respondents.

2015 G B L R 293

[Supreme Appellate Court]

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

PENSION OF EX. CHIEF JUDGE SUPREME APPELLATE COURT: In the matter of

Suo Motu Case No. 15 of 2010, heard on 24th March, 2011.

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

----Art. 60---Pensionary benefits---Grant of pensionary benefits to former Chief Judge, Supreme Appellate Court---Chief Judge was appointed for a term of three years as Chairman Court of appeal Northern Areas in year 2005 under Northern Areas Governance Order, 1994---Former Chief Judge, at the time of appointment was drawing pension as a retired Judge of Peshawar High Court and on completion of tenure of three years of service, retired from Supreme Appellate Court in the year 2008---Matters, relating to the appointment of Judges of Supreme Appellate Court; and their terms and conditions of service, were governed by Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009; and their status in service of Gilgit-Baltistan, was same as the Chief Justice and Judges of Supreme Court of Pakistan---Expenditure in respect of their pay, perks and other privileges, including pension and retirement facilities, were met from the consolidated fund of Government of Gilgit-Baltistan, in the same manner, as the expenditure in respect of the pay, pension and other privileges including retirement benefits and facilities of Chief Justice and Judges of Supreme Court of Pakistan were met from consolidated fund of Government of Pakistan---Services rendered in Pakistan and Gilgit-Baltistan having no nexus with each other, appointment of former Judge of the High Court or Supreme Court of Pakistan as Chief Judge or Judge of Supreme Appellate Court, Gilgit-Baltistan, could not be treated as re-employment in service of Pakistan or appointment in service of Gilgit-Baltistan in continuation of service of Pakistan; rather it was an independent appointment, with independent rights of service---Former Judge of High Court or Supreme Court of Pakistan in the service of Gilgit-Baltistan on retirement as Chief Judge, or Judge from Supreme Appellate Court; in addition to the right of pension and retirement facilities available to him in service of Pakistan as Judge, would be entitled to the pension and other retirement benefits, without any distinction---Tenure appointment of Judges of Supreme Appellate Court, was not in conflict with any provision of Constitution of Pakistan, or any law---Chief Judges, or a Judge of Supreme Appellate Court, Gilgit-Baltistan, notwithstanding appointed for a term of three years, on retirement in his own independent right, would be entitled to pension and other facilities---Right of pension and other retirement benefits of the Judges of Supreme Appellate Court, Gilgit-Baltistan, was recognized under Art.60(10) of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---Held, appointment of retired Judge of a High Court or Supreme Court of Pakistan as Chief Judge, or a Judge of Supreme Appellate Court Gilgit-Baltistan, was not a re-employment in service of Pakistan; or in continuation of service of Pakistan, neither his appointment was in the service of Gilgit-Baltistan---On retirement from Supreme Appellate Court, Gilgit-Baltistan, such Judge, notwithstanding having the right of pension and other privileges, as a retired Judge of High Court or Supreme Court of Pakistan, would be entitled to the pension and other retirement benefits in his own independent right.

Accountant-General Sindh and others v. M.U. Ahmed Ali PLD 2008 SC 522 ref.

Advocate-General, Gilgit-Baltistan.

2015 G B L R 318

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J. and Muzaffar Ali, J

ABDUL BARI and another---Petitioners

Versus

PROVINCIAL GOVERNMENT and others---Respondents

C.P.L.A. No. 62 of 2015, heard on 16th September, 2015.

Gilgit-Baltistan Service Tribunals Act (IX of 2010)---

----Ss. 3, 4 & 5---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Arts.60 & 81---Appointment---Service of petitioners who were appointed against the vacant posts of Foot Constables were terminated---No response was received from the appellate authority on the appeals of petitioners---After completion of statutory period petitioners filed appeal before the Service Tribunal, which was dismissed---Validity---Neither any vacancy was advertised in the newspaper for appointment, nor the petitioners appeared before the Selection Committee in the test/interview---Service Tribunal had rightly held that appointments of the petitioners were made in violation of rules, law and procedure---No departmental appeal was filed by the petitioners, which was required under S.5(9) of the Gilgit-Baltistan Service Tribunals Act, 2010, as same was mandatory in nature---Impugned judgment of the Service Tribunal, was well reasoned and well founded as no illegality and infirmity had been pointed out by the counsel for the petitioners---Leave to appeal was refused by Supreme Appellate Court, in circumstances.

Joher Ali Khan, Advocate for Petitioners.

2015 G B L R 320

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J. and Muzaffar Ali, J

JAN MUHAMMAD---Petitioner

Versus

The STATE and another---Respondents

Cr. P.L.A. No. 8 of 2014, heard on 14th September, 2015.

Penal Code (XLV of 1860)---

----Ss. 279, 427 & 337-M---Rash driving or riding on a public way, mischief causing damage, hurt not liable to qisas---Appreciation of evidence---Prosecution witnesses, who were accompanying the complainant in the vehicle in question, deposed that they heard voice of collusion from the rear side of the vehicle (car); whereafter they became unconscious, consequently both had not seen as to who hit the vehicle---Other prosecution witnesses also stated that when they reached at the place of occurrence, they saw colluded vehicles---Conviction could not be recorded on hearsay evidence without any corroboration; as prosecution witnesses present in car had become unconscious and had not seen as to who hit the car of complainant---Petition was converted into appeal and was allowed---Impugned judgment passed by Chief Court, was not sustainable and was set aside---Judgment/order passed by Judicial Magistrate, holding that prosecution had failed to produce any material on record warranting conviction of accused was maintained---No inference could be drawn that accident of the car was due to rash driving and negligence of accused, in circumstances.

Johar Ali, Advocate for Petitioner.

Advocate-General Gilgit-Baltistan for Respondents.

2015 G B L R 322

[Supreme Appellate Court]

Before Raja Jalal-ud-Din and Muzaffar Ali, JJ

HAFIZ-UR-REHMAN and another---Petitioners

Versus

ZIA and others---Respondents

C.P.L.A. No. 8 of 2014, decided on 2nd September, 2014.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Civil Procedure Code (V of 1908), O.I, R.10(2) & O.VI, R. 17---Suit for declaration and possession---Impleading of party and amendment of pleadings---Respondents in the case filed suit for declaration and possession before the Civil Judge---Respondents, during pendency of suit, filed application under O.I, R.10(2) & O.VI, R.17, C.P.C., for amendment of pleadings and impleading of party; which application having been allowed, petitioners filed revision petition against said order, which was dismissed---Petitioners availed writ jurisdiction of Chief Court against the concurrent findings of Civil Judge and Additional District Judge---Chief Court dismissed writ petition---Validity---Held, concurrent findings of courts below need not to be interfered as all the impugned orders were in accordance with law, having no material irregularity---Liberal view was to be taken to allow applications under O.VI, R.17 and O.I, R.10(2), C.P.C.; unless said amendments might change the nature of the suits or would create new cause of action---Petitioners had failed to establish that amendment sought, could create a new cause of action in the suit; or it could change nature of the suit altogether---Points raised by the petitioners being devoid of substance, leave to appeal was refused accordingly.

Malik Shafqat Wali, Senior Advocate for Petitioners.

Haji Jamal Khan, Advocate-on-Record.

2015 G B L R 324

[Supreme Appellate Court]

Before Rana Muhammad Arshad Khan, C.J. and Raja Jalal-ud-Din, J.

COMPLAINT AGAINST PWD: In the matter of

Suo Motu Case No. 22 of 2011, heard on 29th May, 2013.

Penal Code (XLV of 1860)---

----S. 322---Criminal Procedure Code (V of 1898), S. 173---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art. 61---Suo motu jurisdiction of the Supreme Appellate Court---Public Works Department, negligence of---Death due to pothole on a road---Compensation, payment of---Registration of FIR---Delay in sending challan to the Judicial Magistrate---Deceased, while going on a motor bike, suffered an accident due to a pothole on a road which had not repaired by the concerned authorities for the last about one year---Deceased went into a coma on account of the head injury sustained during the accident and ultimately expired---Case was registered under S. 322, P.P.C., however the challan was not completed within the period stipulated under S. 173, Cr.P.C., and it remained pending with the investigating officer and nobody had adhered to see as to why, the challan was being kept with the police station instead of forwarding the same to the concerned court of Judicial Magistrate under the law---Supreme Appellate Court directed that the Station House Officer should submit the challan for the case within three days before the court of competent jurisdiction for further proceedings, and that the relevant Public Works Department shall make payment of Rs. two lac as compensation to the legal heirs of the deceased.

Advocate-General Gilgit-Baltistan.

Kareem Khan, XEN B&R, Division Gilgit.

Zahoor Ahmad, SHO Police Station City Gilgit.

Syed Murtaza Hassan, Investigating Officer, Police Station City Gilgit.

Muneeb Ahmad son of deceased.

2015 G B L R 328

[Supreme Appellate Court]

Before Raja Jalal-ud-Din and Muzaffar Ali, JJ

PROVINCIAL GOVERNMENT and others---Petitioners

Versus

Mrs. HAMIDA---Respondent

Under Objection No. 51 of 2014, C.P.L.A. No.Nil of 2014, decided on 22nd September, 2014.

Civil service---

----Appointment---Candidate, in response to advertisement for appointment of vacant post of EST Teacher in BPS-14, was first in the merit list---Case of the candidate was finally recommended for appointment against vacant post, but appointing authority did not issue appointment orders---Chief Court accepting writ petition of the candidate, directed the authorities to appoint her against the said post---Validity---Said petition having been filed with delay of three days, was time barred---No application for condonation of delay had been filed by the authorities---Advocate-General had urged that since candidate had committed fraud in collusion with the then Deputy Director and Director of Education, no limitation would run against the authorities---No plea of fraud had been taken in written comments, rather all the grounds taken, had been admitted and the written comments were filed by the petitioners/authorities---Point of fraud raised by the Advocate-General, was devoid of substance, in circumstances---Petition for leave to appeal being time-barred, was dismissed in circumstances.

Advocate-General Gilgit-Baltistan for Petitioners.

Ali Nazar, Advocate-on-Record.

2015 G B L R 330

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J., Raja Jalal-ud-Din and Muzaffar Ali, JJ

DSP BABAR KHAN NOW SP RESIDENT OF SULTABAD HUNZA and another---Petitioners

Versus

SHER SULEIMAN---Respondent

Cr. P.L.A. No. 6 of 2015, decided on 8th October, 2015.

Penal Code (XLV of 1860)---

----Ss. 302, 324 & 34---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Criminal Procedure Code (V of 1898), Ss.132 & 197---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Two persons were killed in the incident and FIR was lodged against the petitioners, but said FIR was discharged by Police---Complainant party, dissatisfied with the order of Police, filed a private complaint against the petitioners before the court of Special Judge, Anti-Terrorism, which was also dismissed by the Anti-Terrorism Court---Complainant being dissatisfied with the order of Special Judge, Anti-Terrorism filed revision petition before Chief Court---Chief Court set aside order of Special Judge Anti-Terrorism Court and private complaint was transferred to Additional Sessions Judge for disposal of the same under ordinary jurisdiction in accordance with law---Validity---Judgment passed by the Chief Court was based on facts and law and same required to be maintained---Said order passed in revision by the Chief Court, was well reasoned and well founded, as no infirmity and illegality had been pointed out by the petitioner, which was upheld---Petition for leave to appeal was converted into appeal and was dismissed being meritless---Petitioner, however, would be at liberty to seek legal remedies during trial by moving application under S. 265-K, Cr.P.C., for their acquittal.

Federation of Pakistan v. Zafar Awan Advocate PLD 1992 SC 72; Muhammad Akram v. The State and others 1999 PCr.LJ 1725 and Nausher Ali v. Muhammad Ahmed and others PLD 2013 Lah. 61 ref.

Amjad Hussain, Advocate for Petitioners.

Malik Haq Nawaz, Senior Advocate for Respondent.

2015 G B L R 335

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J. and Muzaffar Ali, J

MUHAMMAD ALAM through Legal Representatives and others---Petitioners

Versus

SHAH JAHAN and 3 others---Respondents

Civil Appeal No. 31 of 2015 in C.P.L.A. No. 20 of 2012, heard on 21st October, 2015.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.61---Suit for declaration and permanent injunction---Plaintiffs/appellants, who claimed entitlement to suit property, had no evidence regarding title of said land with them and they filed application before the Assistant Commissioner on the basis of hearsay which had no evidentiary value---Plaintiffs had admitted that suit land was "Khalisa-e-Sarkar", and did not challenge the order of the Assistant Commissioner before District Collector but filed suit for declaration and permanent injunction, which was dismissed by the civil court being not maintainable---Appeal was dismissed by the appellate court below and the Chief Court---Validity---Courts below had rightly and correctly dismissed case of the plaintiff---Counsel for the plaintiff could not point out any illegality and infirmity in the impugned judgments of the courts below including the Chief Court---Petition for leave to appeal was converted into appeal by Supreme Appellate Court and dismissed---Judgments passed by the Chief Court and both the courts below, were maintained, in circumstances.

Javed Iqbal, Advocate for Petitioners.

Muhammad Issa, Senior Advocate along with Muhammad Hussain Shahzad, Advocate for Respondents.

2015 G B L R 339

[Supreme Appellate Court]

Before Rana Muhammad Arshad Khan, C.J., Raja Jalal-ud-Din and Muzaffar Ali, JJ

ALLOTMENT OF LAND TO THE REFUGEES OF VILLAGE MIR MALIK AT BUNJI: In the matter of

Suo Motu Case No. 25 of 2011, heard on 9th May, 2013.

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

----Art. 61(1)---Suo motu jurisdiction of the Supreme Appellate Court---Matter relating to allotment of land to refugees of village Mir Malik at Bunji---Claim of allotment of land not backed by any documentary evidence or revenue record---Frivolous litigation---Scope---Wastage of time of court and loss to public exchequer---Refugees/claimants in question contended that they were allotted about 1400 kanal of land near Bunji desert on the orders of the President of Pakistan; that said allotment was purportedly incorporated in the revenue record and the "aks shajra" was also statedly prepared and formal possession of the land was handed over to them---Contrary to the claim made by claimants, the families living in Bunji village asserted that they had been pottering in the area from the years 1840 to 1920, therefore, in the year 1979, the Deputy Commissioner, allotted them 10 thousand kanal of land, which included the 1400 kanal of land purportedly allotted to the claimants---Held, that on the directions of the court, the Deputy Commissioner/Inquiry Officer submitted a detailed report in court---Perusal of the said report showed that inquiry officer after recording statements of representatives of both parties and going through the revenue record came to the conclusion that no allotment order in favour of claimants was ever passed; that no record pertaining to the allotment of the land to the claimants was available in the revenue record; that sufficient opportunity was given to the claimants to place on record any document of any year with regard to their claim of allotment, but they could not bring on record any such document showing the allotment of the land in their name---Case record showed that no allotment order of the land was ever made in favour of the claimants---Claimants neither had any documentary evidence nor any other cogent evidence to show that they were ever allotted the land in question or that they had remained in possession of the same and made improvements thereon---Litigation initiated by the claimants had not only caused loss to public exchequer but also time (of the court) had been wasted---Claimants had shown irresponsible attitude as it was their foremost duty to verify their claim from the revenue record before filing an application before the court---From the minute examination of the record and the activities of the claimants, it seemed, prima facie, that it was in their knowledge that they would not be in a position to substantiate their claim---On the other hand, land in question was allotted to the families living in Bunji village in the year 1979 and the documentary evidence was also available with record of such allotment---Claimants could not prove their case in any manner whatsoever---Suo motu case was disposed of accordingly.

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

----Art. 61(1)--- Frivolous litigation--- Litigant, duty of--- Scope---Foremost duty of the citizens was to come to the court with clean hands to get relief---Citizens could not be allowed in any manner whatsoever, to start frivolous litigation in the superior courts, which was nothing but a mere wastage of public money and time---Such litigation not only caused loss to public exchequer but also wasted time.

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

----Art. 46---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art. 61(1)---Sworn affidavit---Evidentiary value---Scope---Person who had made the sworn affidavit had died, thus, he could neither be produced to authenticate his testimony nor he could be made available for cross examination---Such an affidavit would, thus, lose its evidentiary value---Affidavit sworn by the deceased was also endorsed by two marginal witnesses, who had also not been produced in order to prove the affidavit---Reliance on the testimony of such kind of affidavit could not be taken into consideration for the just decision of a case---Suo motu case was disposed of accordingly.

Advocate-General, Gilgit-Baltistan, Deputy Commissioner, Astore and Issa Haleem, representative of village Mir Malik present.

2015 G B L R 346

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J., Raja Jalal-ud-Din and Muzaffar Ali, JJ

The REGISTRAR CO-OPERATIVE SOCIETY GILGIT-BALTISTAN and 3 others---Petitioners

Versus

GHULAM ABBAS---Respondent

Civil Appeal No. 4 of 2014 in C.P.L.A. No.15 of 2014, decided on 2nd November, 2015.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.9, O.VI, R.17 & O.VII, R. 11-- -Co-operative Societies Act (VII of 1925), Ss.54, 70 & 70-A---Suit for declaration and perpetual injunction---Rejection of plaint---Defendants filed application under O. VII, R. 11, C.P.C., for rejection of plaint on the ground that under Ss. 54, 70 & 70-A, Co-operative Societies Act, 1925 and S. 9, C.P.C., the civil court had no jurisdiction to entertain cases against Registrar Co-operative Societies and Co-operative Banks in the cases/disputes pertaining to the business of society---Trial Court dismissed the plaint/suit of the plaintiff---Plaintiff being aggrieved by said order, appealed to the Chief Court, which in absence of the defendants accepted the appeal, and remanded the case to the Trial Court---Defendants' contention was that order/judgment be set aside as the same was passed on the basis of misconception of law---Validity---Judgment of the Trial Court, was well reasoned and well founded---No infirmity and illegality had been pointed out by the counsel for the plaintiff---Judgment/decree passed by the Trial Court was upheld and the impugned order passed by the Chief Court was set aside.

Ali Khan, Advocate along with Ali Nazar Khan, Advocate-on-Record for Petitioners.

Johar Ali Khan, Advocate for Respondent.

2015 G B L R 348

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J., Raja Jalal-ud-Din and Muzaffar Ali, JJ

RASH KHAN---Petitioner

Versus

AFZAL MEHMOOD CHAIRMAN WAPDA and 3 others---Respondents

Cr. Misc. No. 11 of 2015 in Cr. Original Petition No. 1 of 2015, heard on 27th November, 2015.

Civil service---

----Appointment---Petitioner, claimed that according to the agreement arrived at between Government of Pakistan and the local affectees of 'Diamer Basha Dam', local affectees would be preferred for appointment in the project, subject to non-availability of the individuals of special qualification for the posts---Petitioner alleged that he, being a foreign qualified and experienced engineer, deserved the post, but he had been ignored by the authority and prayed that he be accommodated against any one of the posts---No question of public importance being involved, leave to appeal to Supreme Appellate Court was refused.

Malik Shafqat Wali, Senior Advocate for Petitioner.

2015 G B L R 350

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J., Raja Jalal-ud-Din and Muzaffar Ali, JJ

ALI KHAN---Petitioner

Versus

The DIRECTOR CIVIL SUPPLY AND TRANSPORT GILGIT and 2 others---Respondents

Civil Appeal No. 32 of 2015 in C.P.L.A. No.3 of 2014, decided on 2nd November, 2015.

Civil service---

----Termination of service---Department, vide office order, terminated the services of the employee, in addition to recovery of amount as arrears of land revenue on the charge of shortage of commodities and for not depositing sale price of said commodities with the Government treasury---Appellant had deposited partial amount and remaining due had not been deposited in terms of the said order of the department---Employee had filed suit in the civil court challenging his termination order---Trial Court partially decreed the suit in favour of the employee to the extent that he be reinstated in service with all back benefits, subject to his depositing the outstanding amount in the Treasury---Cross appeal filed by the department against said order of the Trial Court was dismissed by the appellate court below maintaining the judgment of the Trial Court---Employee impugned judgments of the two courts below before the Chief Court, which not only reversed both the judgments of the courts below, but maintained the office order passed by the department---Impugned judgment of the Chief Court, was well reasoned as no illegality and infirmity had been pointed out by the employee---Appeal of the employee was dismissed---Judgment passed by the Chief Court was upheld; and that of Civil Judge/Trial Court to the extent of outstanding amount recoverable from the employee, was maintained.

Inspector General of Police v. Shafqat Mehmood 2003 SCMR 207 distinguished.

Nazir Ahmed v. Capital City Police Officer, Lahore 2011 SCMR 484 and Muhammad Ayub v. The Chairman Electricity Board (WAPDA) PLD 1987 SC 195 rel.

Amjad Hussain, Advocate along with Ali Nazar Khan, Advocate-on-Record for Petitioner.

Advocate-General Gilgit-Baltistan, Gilgit for Respondents.

2015 G B L R 355

[Supreme Appellate Court]

Before Rana Muhammad Arshad Khan, C.J., Syed Jafar Shah and Muhammad Yaqoob Khan, JJ

COMPLAINT AGAINST AGPR GILGIT: In the matter of

Suo Motu Case No. 8 of 2011, heard on 14th March, 2012.

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

----Arts. 61 & 75---Suo motu jurisdiction of the Supreme Appellate Court---Contempt of Court, notice for---Unconditional and unqualified apology by contemnors---Effect---Discharge of contempt notice---Complaint against Accountant General Pakistan Revenue, Gilgit-Baltistan and his office staff---Disrespect and disgrace to the Court---Interruption and intervention in the work/affairs of the Court---Raising slogans derogatory to the honour and respect of the Court---Chief Judge, Supreme Appellate Court sanctioned purchase of an old vehicle for Liaison Office at Islamabad---Accountant General Pakistan Revenue, Gilgit-Baltistan cancelled the cheque issued for the purpose of purchase of said vehicle---Staff of Accountant General office also called a strike and raised derogatory slogans and staged an agitation at the main gate of the Court---Accountant General and his office staff were issued show-cause notices for contempt of court---Accountant General and his staff officials appeared before the court in person in reply to the show-cause notice---Accountant General realized his misconduct and showed his sincere repentance and tendered unconditional and unqualified apology---Staff officials of Accountant General's office appeared before the Court and surrendered themselves at the mercy of the Court and claimed unconditional and unqualified apology and showed their repentance---Supreme Appellate Court accepted such apology and discharged the contempt notices against the Accountant General and his office staff---Suo motu case was disposed of accordingly.

Asad Ullah Khan, Advocate-General, Gilgit-Baltistan, Iqbal Shah, Deputy Accountant-General, Jangi Bahadur, Accounts Officer, Mustafa Assistant Accounts Officer and Hashmat Ullah, Assistant Accounts Officer present.

2015 G B L R 358

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J., Raja Jalal-ud-Din and Muzaffar Ali, JJ

MUHAMMAD ALI YOUGVI---Petitioner

Versus

DEPUTY COMMISSIONER SKARDU and another---Respondents

Civil Appeal No. 45 of 2015 in C.P.L.A. No. 96 of 2015, heard on 26th November, 2015.

Accommodation Allocation Rules, 2002---

----Rr. 2(b), 7, 10 & 11---Allotment of accommodation to Government Officer---Cancellation of allotment---Petitioner, who was a Government Officer, claimed that he was entitled to occupy a Government residence at any station subject to availability of an alternate Government residence at his place of posting---Petitioner, alleged that official accommodation allotted to him, was cancelled and allotted to respondent illegally and unlawfully and that cancellation order and judgment passed by the Chief Court in the matter, was result of misconception of law and rules; misreading and non-reading of material on record---Validity---Government servant who owned a house in his own name or his spouse or dependant children, was not allowed Government accommodation as provided under Accommodation Allocation Rules, 2002---Petitioner had two kanals of land having constructed triple storey house, which was rented out at Rs.30,000 per month---Impugned judgment passed by Chief Court was well reasoned and well founded---Petitioner could not point out any illegality and infirmity in the impugned judgment---Petition for leave to appeal was converted into an appeal by Supreme Appellate Court and was dismissed---Impugned judgment of Chief Court was maintained---Petitioner was directed to vacate the Government residence provided to him.

Rai Muhammad Nawaz Kharal, Advocate for Petitioner.

Advocate-General, Gilgit-Baltistan along with Secretary GAD, Gilgit-Baltistan and Deputy Commissioner Skardu for Respondents.

2015 G B L R 361

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J. and Raja Jalal-ud-Din, J

PROVINCIAL GOVERNMENT and others---Petitioners

Versus

MERA JAN and others---Respondents

C. Misc. No. 116 of 2015 in C.P.L.A. No. 43 of 2013, heard on 23rd November, 2015.

Civil service---

----Appointment--- Writ petition of candidates was allowed by the Chief Court and authorities were directed to adjust the petitioners against the posts of Nursing Assistants in the Health Department according to the recruitment policy---Authorities were directed by the Supreme Appellate Court to decide the case in accordance with the "recruitment policy" and law on merits within a period of three months.

Advocate Gilgit-Balstistan along with Ali Nazar Khan, Advocate-on-Record for Petitioners.

Amjad Hussain, Advocate along with Johar Ali Khan, Advocate-on-Record for Respondents.

2015 G B L R 362

[Supreme Appellate Court]

Before Raja Jalal-ud-Din and Muzaffar Ali, JJ

HUSSAIN AKBAR and 2 others---Petitioners

Versus

SPEAKER GBLA GILGIT and 2 others---Respondents

C.P.L.A. No. 29 of 2013, heard on 27th March, 2014.

Gilgit-Baltistan Service Tribunals Act (IX of 2010)---

----Ss. 3, 4 & 5---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Arts. 60, 71 & 81---Civil service---Promotion/appointment against posts of BPS-17 and onward---Writ petition before Chief Court---Maintainability---Division Bench of Chief Court, had dismissed the writ petition for want of jurisdiction inferring that service matters pertaining to promotion/appointments against the posts of BPS-17 and onward, could not be challenged in general courts including Chief Court under its writ jurisdiction---Validity---Government of Gilgit-Baltistan having established the Service Tribunal, Supreme Appellate Court sent the petition to the Chief Court deeming same to be pending and doing the needful under the relevant provisions of the Gilgit-Baltistan Service Tribunals Act, 2010.

Amjad Hussain, Advocate along with Sharif Ahmed, Advocate for Petitioners.

Asadullah Khan, Advocate-General Gilgit-Baltistan for Respondents.

Jamil Ahmed, Deputy Speaker GBLA, Gilgit for Respondent No.3 of the petition.

Haji Jamal Khan, Advocate-on-Record.

2015 G B L R 364

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J. and Muzaffar Ali, J

BARAT ALI and others---Petitioners

Versus

Mst. MAHER BANU and others---Respondents

C.P.L.A. No. 94 of 2014, heard on 17th September, 2015.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Suit for possession and declaration---Suit was decreed by the Trial Court and judgment and decree passed by the Trial Court, was upheld by the appellate court below---Defendants/respondents filed revision petition against said concurrent judgment and decree passed by two courts below before the Chief Court which was accepted and judgments of both the courts below were reversed---Validity---Judgment passed in revision by the Chief Court was well reasoned and well founded---No illegality and infirmity had been pointed out by the counsel for the petitioners in the impugned judgment, leave to appeal was refused---Order/judgment passed by the Chief Court, was maintained, in circumstances.

Amjad Hussain, Advocate for Petitioners.

2015 G B L R 366

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J.

KAMAL HUSSAIN and others---Petitioners

Versus

SHABBIR AHMED and others---Respondents

C.P.L.A. No. 8 of 2013, heard on 14th September, 2015.

Gilgit-Baltistan Judicial Service Rules, 2010---

----Rr. 6, 7 & 12 [as amended by Gilgit-Baltistan (Amendment) Judicial Service Rules, 2014]---Supreme Appellate Court Gilgit-Baltistan Rules, 2008, O.XIII---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art. 79---Appointment of employees of the Chief Court---Petition for leave to appeal to Supreme Appellate Court---Advocate-General and Secretary Law, contended that since Government of Gilgit-Baltistan had issued SRO No.909(I)/2014 in exercise of power under Art.79 of the Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009; Chief Court with the approval of the Governor, had amended Rr. 6, 7 & 12 of Gilgit-Baltistan Judicial Service Rules, 2010---Petition for leave to appeal, in circumstances, had become infructuous---Advocate for the petitioners, contended that appellants who had applied for the post of Civil Judges-cum-Judicial Magistrate, their maximum age be calculated from the date of filing of their applications for such posts---Contentions raised by counsel for both the petitioners and respondents were genuine and were in accordance with law, same were allowed---Registrar, Chief Court, was directed to implement the order of Supreme Appellate Court in its letter and spirit and vacant posts be filled in at the earliest---Process of examination and test/interview thereto be complied expeditiously, so that the successful candidates on merits be selected and appointed as Civil Judges-cum-Magistrates accordingly.

Advocate-General Gilgit-Baltistan along with Rahim Gul, Secretary Law, GB.

Malik Shafqat Wali, Senior Advocate along with Amjad Hussain, Advocate for Petitioners.

Mumtaz Ahmed, Registrar, Chief Court, GB.

Deputy Attorney-General for Pakistan at GB.

2015 G B L R 369

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J.

COMPLAINT AGAINST POLICE PERSONNEL: In the matter of

S.M.C. No. 4 of 2015, decided on 27th November, 2015.

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

----Art. 61---Suo motu jurisdiction of Supreme Appellate Court---Matter relating to complaint against a police official by an advocate---Relationship between the bar and the police---Matter was amicably resolved on the terms that the accused police constable should be suspended immediately and an inquiry be initiated against him in accordance with law, and that in case, the complainant-advocate forgave the police constable then inquiry/departmental proceedings against him would be dropped---In view of such resolution the Inspector General Police ordered suspension of the police constable forthwith and ordered an inquiry against him in accordance with law---Supreme Appellate Court observed that in case, the advocate forgave the police constable, the matter would be closed; that Inspector General Police and the President of the concerned Bar Association had to keep liaison and coordination with each other to minimize misunderstandings and complaints in order to keep up healthy relations between the bar and police---Suo motu case was disposed of accordingly.

Malik Kafayat-ur-Rehman, Advocate President Chief Court Bar Association along with Manzoor Hussain, Advocate and Haji Abid Ali Baig, Advocate for Petitioner.

Inspector General of Police Gilgit-Baltistan along with Ali Raza, Acting SP Gilgit and Hassan Ali, Acting SP Hunza/Nagar for Respondent.

2015 G B L R 371

[Supreme Appellate Court]

Before Raja Jalal-ud-Din, C.J. and Muzaffar Ali, J

SEHAT WALI GOVERNMENT CONTRACTOR---Petitioner

Versus

Haji ESSA KHAN and 4 others---Respondents

C.P.L.A. No. 9 of 2015, heard on 21st April, 2015.

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

----Art. 60---Petition for leave to appeal---Maintainability---Interim order---Supreme Appellate Court had power to hear the petition for leave to appeal against the final judgment, decree and order passed by the Chief Court---Petition for leave to appeal was not maintainable in case of an interim order.

Ehsan Ali, Advocate for Petitioner.

2015 G B L R 372

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J. and Raja Jalal-ud-Din, J

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

Versus

Mst. YASMIN SHER WALI---Respondent

C.P.L.A. No. 26 of 2012, heard on 5th November, 2015.

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

----Art. 60---Petition for leave to appeal---Limitation---Delay of three months and ten days in filing petition---Application for obtaining certified copies of impugned judgment was filed after a delay of one month and six days---Copy of said judgment was prepared after four days and same was received by the petitioner on next day of its preparation, but petition for leave to appeal was filed four months after the receipt of said copy---Explanation offered by Advocate-General, being not acceptable, leave to appeal was refused by Supreme Appellate Court being time barred.

1990 SCMR 1377; 1991 SCMR 1022 and 1998 SCMR 292, 1087 rel.

Advocate-General Gilgit-Baltistan along with Joher Ali, Advocate, Legal Advisor, Education Department Gilgit-Baltistan for Petitioners.

2015 G B L R 373

[Supreme Appellate Court]

Before Raja Jalal-ud-Din, Actg. C.J. and Muzaffar Ali, J

FATIMA BI and 3 others---Petitioners

Versus

ABDUR REHIM and another---Respondents

C.P.L.A. No.44 of 2014, decided on 30th March, 2015.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Suit for declaration and possession---Original owner of property had died issueless and his two sisters remained as legal heirs---One of the sisters was living in the house of her husband, while other sister/petitioner was residing with his late brother---Hereditament of the deceased, remained with the petitioner (sister) who was residing with her brother---Other sister of the deceased having died, after death of her brother---Legal heirs of said sister had filed suit for declaration and possession, claiming legal share out of the hereditament of deceased brother of their mother---Petitioners in his written statement denied legal right of the plaintiffs with the specific contention of the gift made by her late brother in respect of his legacy---Civil Court had concluded that plaintiffs were entitled to the decree partially (to the extent of cancellation of some mutations and de-suited the plaintiffs in regard to their prayer "declaration cum possession" of the disputed land)---Petitioners, re-iterated the plea of gift in favour one of the sister by her late brother and referred the document and the statements of the marginal witnesses---Said document was the photocopy, which was not admissible under Qanun-e-Shahadat, 1984---Document, in question, even if was original paper, could not be relied upon as it was un-registered---Executor of said document was Muslim and under Islamic Law he was bound to execute a 'will' in respect of 1/3rd of his estate---Document, (gift) in circumstances was void under Islamic Law---Petitioners, had failed to persuade the court to grant leave to appeal---Petition was dismissed.

Malik Shafqat Wali, Senior Advocate on behalf of the Present.

2015 G B L R 376

[Supreme Appellate Court]

Before Rana Muhammad Arshad Khan, C.J. and Muzaffar Ali, J

SHUKOOR NIAZ and 4 others---Petitioners/Defendants

Versus

ABDUL AZIZ alias GOJUR and 2 others---Plaintiffs/Respondents

C.P.L.A. No. 62 of 2011, heard on 23rd October, 2013.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and perpetual injunction---Plaintiff had claimed that property (subject matter of the suit) was allotted to him vide allotment order by the competent authority and he was in possession of the same---Petitioners/defendants opposed the suit, contending that only two fields of land measuring about 24 kanals had been allotted to the plaintiff, but he had encroached pasture of village measuring about 200 kanals---Defendants, at the very outset abandoned all other points raised in their petition, but pressed the single point and urged that the plaintiff had encroached a huge chunk of land measuring 200 kanals belonging either to the inhabitants of village or to the Provincial Government as shamilat-e-deh---Point raised by the defendants/petitioners, was devoid of legal substance for the reasons; that counsel for the defendants had himself conceded that no land of the defendants had been encroached by the plaintiff, defendants, in circumstances, had no locus standi to ask the courts of law to make an order of ejectment of the plaintiff from excess land, if any in his possession; that no suit had been filed by the defendants to get decree of possession of the plaintiff from any land allegedly encroached by the plaintiff, no decree of dispossession/ejectment against the plaintiff and in favour of the defendants could be passed; even if, it was proved that the plaintiff was encroacher of the land; and that alleged encroached land in possession of the plaintiff belonged, either to the Provincial Government, or to the inhabitants of the village---Defendants, were neither representative of the people of the village, nor they represented the Provincial Government---Defendants had failed to point out any important legal aspect against the impugned judgment---Petition for grant of leave to appeal, was refused, in circumstances.

Advocate-General Gilgit-Baltistan on behalf of Provincial Government.

Muhammad Issa, Senior Advocate for Petitioners/Defendants.

Shah Zaheer, Advocate for Plaintiff/Respondent.

2015 G B L R 379

[Supreme Appellate Court]

Before Rana Muhammad Arshad Khan, C.J., Raja Jalal-ud-Din and Muzaffar Ali, JJ

SHORTAGE OF FLOUR IN GILGIT-BALTISTAN: In the matter of

Suo Motu Case No. 3 of 2013, heard on 8th May, 2014.

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

----Art. 61---Suo motu jurisdiction of Supreme Appellate Court---Suo motu notice originated from the office note, prepared on the basis of publication in various local newspapers, which reported that public at large had been facing acute shortage of flour for many days; and the flour mills owners had stopped grinding the wheat on account of various demands agitated by them, which were required to be addressed by the Authorities---Situation further aggravated, when the Bakers (Tandories) also stopped the baking of Roti---People of the area were facing serious problems on account of shortage of flour---Supreme Appellate Court, being a court of equity and conscious, interfered into the matter in order to enforce the Fundamental Rights of the people of area---Cognizance in the matter was taken by the Court in exercise of its original jurisdiction as envisaged under Art.61 of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---Matter was fixed before the Bench, notices were issued to all concerned departments and concerned parties---Court, after hearing concerned parties, directed that Food Department to retain and distribute a certain amount of wheat to general public, so that the consumer could avail opportunity of having it grinded at the place of his own choice, which would save the individual from payment of extra charges; that it was the sole domain of Price Control and Regulatory Authority in collaboration with Civil Administration to fix the rate of flour, to be given to the consumer at the sale points; that Price Control and Regulatory Authority, should fix the rate of the Bread (Roti) and the weight of the same; that Price Control and Regulatory Authority, should also fix rate of wheat per 40 KG to be grinded by the flour mills; that it was the privilege of the mill-owners to impose their own demands and rates of grinding without adhering to the directives of the Price Control and Regulatory Authority, and said Authority should also keep in mind the genuine requirements of the mill-owners; that Food Inspectors, should visit each and every baker to check the weight of the Roti and if found below the weight, the licence of the Baker (Tandori) should be cancelled; that if the mill-owners, deliberately, and without any cogent reason, would try to create temporary shortage of flour, by way of strike, or by adopting any other method, the Food Department, was at liberty to provide the flour to general public/consumer by an alternate arrangement and necessary steps would be taken on priority basis; and that, if any other matter relating to the issue of supply of flour to the consumer would arise, the Food Department, Government of Gilgit-Baltistan, would be at liberty to adhere to the guidelines given in the judgment of the Chief Court.

Asad Ullah Khan, Advocate-General Gilgit-Baltistan.

Malik Shafqat Wali, Senior Advocate along with Muhammad Issa, Senior Advocate counsel for Mill Owners of Gilgit-Baltistan.

Lateef Shah counsel for the Nan Bai Association.

Momin Jan, Director, Civil Supply and Transports, Gilgit-Baltistan.

Manzoor Ahmed, Advocate, Legal Advisor, Food Department, Gilgit-Baltistan.

Shukoor Rahman, Deputy Secretary, Food Department, Gilgit-Baltistan.

2015 G B L R 397

[Supreme Appellate Court]

Before Raja Jalal-ud-Din, C.J. and Muzaffar Ali, J

SAIF ULLAH---Petitioner

Versus

Hafiz EHSAN ULLAH and 5 others---Respondents

C.P.L.A. No. 8 of 2015, heard on 22nd April, 2015.

Educational Institution---

----Admission in Medical College---Candidate, was nominated against medical seat reserved for District Diamir being domiciled resident of said District and having obtained higher marks than the respondent---Respondent challenged the bona fide residency of the petitioner through the suit which was sub-judice before the Civil Judge, but the interim matter travelled from civil court to Supreme Appellate Court---If the matter was allowed to go through procedural formalities of the courts, then reserved seat of Medical College, would be lost and none of the parties would be able to avail the reserved seat in said Medical College as a short span of time was left to get admission therein---Said loss would not be only of the parties to the suit, but would affect the Gilgit-Baltistan at-large---Secretary Education Gilgit-Baltistan had proposed to accommodate both the candidates, by formula that one candidate to be nominated this year and the other in the next session---Said proposal was plausible and the parties had also consented to the same---Petitioner having already been nominated against the reserved seat for District Diamir in the Medical College, nomination of the petitioner was allowed in the said Medical College against reserved seat of District Diamir for current year---Respondent would be entitled to get admission against a reserved seat for Diamir District in the next year---Order accordingly.

Joher Ali, Advocate for Petitioner.

Amjad Hussain, Advocate for Respondent No.1.

The Director Colleges/Secretary Nomination Board Education Department GB.

The DD Nomination Education Department GB.

2015 G B L R 399

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J., Raja Jalal-ud-Din and Muzaffar Ali, JJ

REHMAT ALAM---Petitioner

Versus

Hafiz EHSANULLAH and others---Respondents

C. Misc. Nos. 124, 123, 121 and Review No.5 of 2015 in C.P.L.A. No.8 of 2015, heard on 23rd November, 2015.

Educational Institution---

----Admission in Medical College---Respondent, despite having failed in the "Entry Test" and placed at serial No.286 in the "Gilgit-Baltistan level merit list", had been nominated against the reserved seat available at the Medical College, while petitioner besides scoring highest marks (69.78%) had been deprived of nomination for admission---Respondent who scored 53.35% marks and failed in the "Entry Test" had been nominated---Petitioner having scored highest marks had accrued legal and vested right to be nominated against the seat available in the Medical College---Provincial Secretary Education and Principal of the Medical College, were directed to adjust and accommodate the petitioner and give admission either in that particular College where the test was held, or any other College in the Province.

Ali Nazar Khan, Advocate-on-Record for Petitioner.

2015 G B L R 402

[Supreme Appellate Court]

Before Raja Jalal-ud-Din, Actg. C.J. and Muzaffar Ali, J

CHAIRMAN PAKISTAN AGRICULTURE RESEARCH COUNCIL (PARC) and another---Petitioners

Versus

KHALID AKHLAQ and 2 others---Respondents

C.P.L.A. No. 19 of 2014, decided on 15th April, 2015.

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

----Art. 60---Petition for leave to appeal---Limitation---Delay, condonation of---Said petition being barred by 30 days, application for condonation of said delay was attached with petition---Points raised by counsel for the petitioners, could hardly be considered as grounds for condonation of delay under S.5 of the Limitation Act, 1908---Section 5 of Limitation Act, 1908 mandated accounting for each and every day of the delay caused---Internal and self-creative difficulties of the Government or the Government Departments did not fall within the ambit to condone the delay---Formalities of government department were not recognized by law of limitation---Government, would not enjoy any preferential treatment qua an ordinary litigant in the application of law of limitation---Opposite party could be not be penalized---Government department, if wished to get any legal remedy for which they were entitled under the law of land, they must follow the law of limitation and show their vigilance by avoiding the formalities to save the expiry of limitation---Petition for leave to appeal was refused being time barred.

Ehsan Ali, Advocate for Petitioners.

2015 G B L R 404

[Supreme Appellate Court]

Before Dr. Rana Muhammad Shamim, C.J. and Raja Jalal-ud-Din, J

MUHAMMAD TAQI---Petitioner

Versus

MUHAMMAD ALI KHAN and others---Respondents

C.P.L.A. No. 26 of 2014, decided on 6th October, 2015.

Punjab Land Acquisition Rules, 1983---

----R. 14---Acquisition and returned of land to the owner---Procedure---Suit for declaration---Acquisition of land---Suit filed by the plaintiff having been decreed by the Trial Court, defendant filed appeal before Appellate Court below which was dismissed---Revision against concurrent findings before Chief Court was also dismissed---Validity---Procedure adopted for the unutilized land and its return to the plaintiff, had properly been followed---Courts below had rightly come to the concurrent conclusion in their findings and no infirmity was found in findings of the courts below---Defendant had no locus standi to contest the matter---Defendant had gone into a wild goose chase for an issue which was no concern of his---No substance was found for interference as there was no irregularity in the matter---Petition for leave to appeal was converted into appeal and was dismissed, in circumstances.

Malik Shafqat Wali, Senior Advocate for Petitioner.

Johar Ali Khan, Advocate for Respondent No.1.

Advocate-General Gilgit-Baltistan for Respondents Nos.2 to 6.

2015 G B L R 406

[Supreme Appellate Court]

Before Raja Jalal-ud-Din, Actg. C.J. and Muzaffar Ali, J

CHAIRMAN AGA KHAN EDUCATION SERVICE PAKISTAN and 6 others---Petitioners

Versus

Mst. SHABNAM---Respondent

C.P.L.A. No. 59 of 2014, decided on 18th May, 2015.

Master and servant---

----Appointment---Termination of services of teacher---Organization controlling administration of a private group of education service, appointed respondent against a vacant post in Primary School---Respondent had passed examinations of F.A. and PTC during her service---After lapse of 13 years of service of the institution, organization introduced a scheme called "appraisal" (scheme), whereby services of the respondent were terminated---Suit filed by the teacher (respondent) against her termination, was dismissed by the Trial Court, but appellate court below set aside impugned judgment and decree passed by the Trial Court---Chief Court maintained the judgment passed by the appellate court below---Validity---Organization had urged that respondent (teacher) lacked teaching abilities, but record had shown otherwise---Respondent had passed F.A. examination and also succeeded to pass her PTC examination during her service---Respondent had gone through various trainings and workshops under the education system run by the organisation and she was placed in top-C by the administration---Organisation was running an Educational Institution and teachers appointed in various institutions, could not be let at the mercy of the organization on the pretext of principle of "Master and Servant", because as per legal maxim "ubi jus ibi remedium", where there was a right, there was a remedy---Respondent had spent 13 precious years of her life in the institution, all of a sudden, after expiry of her age to get any service in any other institution/department, organisation under the principle of equity might not be allowed to kick poor lady out from her respective service on the pretext of principle of "Master and Servant"---Principle of Master and Servant did not mean the principle of slavery---Organisation was refused the grant of leave to appeal to Supreme Appellate Court and impugned order was upheld.

Ali Dad Khan, Advocate for Petitioners.

Latif Shah, Advocate for Respondent.